Galarza v. Semple et al

Filing 12

INITIAL REVIEW ORDER DISMISSING COMPLAINT. For the reasons stated in the attached ruling, the complaint is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff may file a motion to reopen accompanied by an amended complaint if he can allege facts that suffice to show a plausible claim for a violation of his constitutional rights. Plaintiff is reminded that if he chooses to file an amended complaint, the complaint may be subject to dismissal on motion of defendants if i t relies on facts or incidents that have not been the subject of proper grievances. Any motion to reopen must be filed within thirty days from the date of this order. In light of this ruling, plaintiffs motion for prospective relief (Doc. # 11 ) is DENIED as moot.It is so ordered.Signed by Judge Jeffrey A. Meyer on 8/16/2018. (Lombard, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LUIS GALARZA,
Plaintiff,
No. 3:18-cv-00773 (JAM)

v.
SCOTT SEMPLE, et al.,
Defendants.

INITIAL REVIEW ORDER DISMISSING COMPLAINT
Plaintiff Luis Galarza has filed this complaint pro se and in forma pauperis against
employees of the Connecticut Department of Correction pursuant to 42 U.S.C. § 1983. Plaintiff
alleges that defendants violated his constitutional rights arising from alleged tampering with his
legal mail on one occasion. Because plaintiff has not alleged facts that give rise to plausible
grounds for relief, the complaint will be dismissed without prejudice.
BACKGROUND
Plaintiff has filed this lawsuit against officials of the Connecticut Department of
Correction including Commissioner Scott Semple, Warden Scott Erfe, Deputy Warden Hannah,
Mail Handlers Wislocki, Ramirez and Rivera, Correctional Officer McMahon, Captain Torres,
and Lieutenant McMahon (collectively, “defendants”) in their individual and official capacities.
He claims that prison officials improperly opened and delayed his receipt of a letter from his
attorney.
The following facts are assumed to be true solely for purposes of my initial evaluation of
the adequacy of the allegations in the complaint. On June 6, 2017, plaintiff was called to the
Lieutenant’s office to get his legal mail. Lieutenant McMahon notified plaintiff that the mail
room staff had opened his mail and that he would be filing an incident report. At that point,
1

plaintiff noted that his opened letter was postmarked May 19, 2017. The letter was from
plaintiff’s attorney and informed plaintiff that he had 90 days to file for relief in the United
States Supreme Court.
The Court takes judicial notice that the Connecticut Supreme Court denied certification
for appeal from the Connecticut Appellate Court in plaintiff’s state habeas matter on May 17,
2017. See Galarza v. Comm’r of Correction, 325 Conn. 928 (2017). This was two days before
the alleged postmark date for the legal correspondence that was sent from plaintiff’s attorney to
plaintiff.
Due to the mail being withheld for three weeks, plaintiff alleges that he had less time to
prepare for his case. Plaintiff submitted an Inmate Request to Captain Torres addressing the
problems that he had been having with the mail room staff for a few years and the lack of
corrective action. In response, Captain Torres gave plaintiff the defendants’ names. Doc. #1 at 7
(¶ 1).
On June 8, 2017, plaintiff contacted Deputy Warden Hannah regarding the incident with
his mail, specifically that his legal mail had been improperly withheld and opened outside of his
presence. He also informed Hannah that he had complained before about staff behavior at the
mail room. Plaintiff then requested that Hannah remove the defendant mail handlers from the
mail room. Hannah responded on June 29, 2017, explaining that the mail room reported that the
mail was delivered on the day it was received, that the letter had been opened inadvertently and,
per policy, an incident report had been filed. Id. at 7-8 (¶ 2), 17.
On June 18, 2017, plaintiff submitted a Freedom of Information Act (“FOIA”) request
seeking a copy of the incident report. Id. at 8 (¶ 4). FOIA Officer McMahon responded that once
his documents were ready, he would be notified. Id. at 23. On June 26, 2017, plaintiff submitted

2

an Inmate Request to Warden Erfe, seeking removal of the mail handlers, but he did not receive
a response. Id. at 8-9 (¶ 5).
On July 5, 2017, plaintiff filed a grievance, again requesting that the defendant mail
handlers be removed. The grievance was denied on the basis that “inmates do not dictate staff
discipline.” Id. at 27. Subsequently, plaintiff filed to appeal his Level 1 decision to Level 2 based
on his disagreement with the decision from Level 1. In denying plaintiff’s request, the Level 2
reviewer remarked that plaintiff had exhausted his administrative remedies. Id. at 30.
DISCUSSION
Pursuant to 28 U.S.C. § 1915A, the Court must review a prisoner’s civil complaint
against a governmental entity or governmental actors and “identify cognizable claims or dismiss
the compliant, or any portion of the complaint, if the complaint—(1) is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief.” If the prisoner is proceeding pro se, the allegations
of the complaint must be read liberally to raise the strongest arguments that they suggest. See
Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010).
In recent years, the Supreme Court has set forth a threshold “plausibility” pleading
standard for courts to evaluate the adequacy of allegations in federal court complaints. A
complaint must allege enough facts—as distinct from legal conclusions—that give rise to
plausible grounds for relief. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic
v. Twombly, 550 U.S. 544, 570 (2007). Notwithstanding the rule of liberal interpretation of a pro
se complaint, a pro se complaint may not survive dismissal if its factual allegations do not meet
the basic plausibility standard. See, e.g., Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d
Cir. 2015).

3

Constitutional Right of Access to the Courts
Prison inmates have a constitutional right of access to the courts. Bounds v. Smith, 430
U.S. 817, 821 (1977), modified on other grounds by Lewis v. Casey, 518 U.S. 343 (1996). To
state a valid claim for denial of access to the courts, a plaintiff must show that the defendant
acted deliberately and maliciously, and that, as a result of defendant’s actions, plaintiff suffered
an actual injury such as the dismissal of an otherwise meritorious legal claim. See Davis v.
Goord, 320 F.3d 346, 351 (2d Cir. 2003).
Plaintiff has not alleged facts demonstrating an actual injury. According to the record, the
letter in question from plaintiff’s attorney was postmarked May 19, 2017, and plaintiff received
the letter on June 6, 2017—nineteen days later. The letter informed plaintiff that he had 90 days
to seek relief from the United States Supreme Court. Although it is unclear when the letter
arrived at the facility, it is clear that plaintiff would still have had more than seventy days
remaining after receiving the letter to file a petition for certiorari at the Supreme Court. Plaintiff
does not state whether he actually filed a petition; more importantly, he does not allege that he
had inadequate time to seek relief from the Supreme Court, much less does he allege any facts to
suggest that his petition would have been meritorious. Therefore, plaintiff has not alleged facts
that give rise to a plausible claim for obstruction of his constitutional right of access to the
courts. See Smith v. City of New York, 2015 WL 1433321, at *3 (S.D.N.Y. 2015) (“A mere delay
in being able to work on one’s legal action or communicate with the courts does not rise to the
level of a constitutional violation.” (quotation marks omitted)).
Interference with Legal Mail
The First Amendment protects a prisoner’s right to the free flow of incoming and
outgoing mail, including legal mail. See Davis, 320 F.3d at 351. As the Second Circuit has noted,

4

however, a single incident of tampering with legal mail is usually insufficient to establish a
constitutional violation; instead, an inmate must show that prison officials “regularly and
unjustifiably interfered with the oncoming legal mail.” Ahlers v. Rabinowitz, 684 F.3d 53, 64 (2d
Cir. 2012) (citations omitted); Steve v. Arone, 627 F. App’x 50 (2d Cir. 2016) (affirming sua
sponte dismissal of prisoner complaint alleging one isolated incident of interference with legal
mail).
Although plaintiff alleges unspecified prior problems and corruption at the prison mail
room, his complaint and attached grievance forms allege facts regarding only one particular
incident of improper handling of his legal mail in May and June 2017. This is insufficient to state
a plausible claim for a violation of his First Amendment rights. Moreover, to the extent that the
law of the Second Circuit has left it unclear whether a single tampering incident may form the
basis for a constitutional claim, see Ahlers, 684 F.3d at 64, defendants would have qualified
immunity for lack of clearly established law. See generally Simon v. City of New York, 893 F.3d
83, 92 (2d Cir. 2018).
Sixth Amendment Right to Counsel
Plaintiff claims that defendants’ actions also violated his right to counsel under the Sixth
Amendment. The Sixth Amendment, however, only protects an attorney-client relationship in a
criminal case context. See Wolff v. McDonnell, 418 U.S. 539, 576 (1974) (rejecting application
of Sixth Amendment to claim that “would insulate all mail from inspection, whether related to
civil or criminal matters”). There is no Sixth Amendment right to counsel for purposes of a
habeas corpus proceeding. See Murden v. Artuz, 497 F. 3d 178, 194 (2d Cir. 2007); see also
Vacchio v. Ashcroft, 404 F.3d 663, 667 (2d Cir. 2005) (noting that a habeas corpus proceeding is
civil in nature). The content of the letter at issue in this case regards a state habeas corpus

5

proceeding and not a criminal matter. Therefore, plaintiff has failed to allege a plausible claim
for a violation of his Sixth Amendment right to the effective assistance of counsel.
CONCLUSION
The complaint is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A(b)(1).
Plaintiff may file a motion to reopen accompanied by an amended complaint if he can allege
facts that suffice to show a plausible claim for a violation of his constitutional rights. Plaintiff is
reminded that if he chooses to file an amended complaint, the complaint may be subject to
dismissal on motion of defendants if it relies on facts or incidents that have not been the subject
of proper grievances. Any motion to reopen must be filed within thirty days from the date of this
order. In light of this ruling, plaintiff’s motion for prospective relief (Doc. #11) is DENIED as
moot.
It is so ordered.
Dated at New Haven this 16th day of August 2018.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

6