Nicholson v. Ferreira et al
INITIAL REVIEW ORDER re 6 Amended Complaint filed by Cargil Nicholson Discovery due by 12/3/2201; Dispositive Motions due by 1/3/2022. See attached Order. Signed by Judge Kari A. Dooley on 6/3/2021.(Gould, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
No. 3:20-cv-01214 (KAD)
June 3, 2021
ORDER RE: AMENDED COMPLAINT
Kari A. Dooley, United States District Judge:
On February 1, 2021, this Court issued an Initial Review Order (“IRO”) in which it
dismissed Plaintiff Cargil Nicholson’s (the “Plaintiff”) First Amendment retaliation and free
exercise claims without prejudice to the filing of an amended complaint that clarified the basis for
these claims. (ECF No. 5.) Specifically, the Court concluded that the Plaintiff’s conflicting
allegations regarding the confiscation of items from his cell on November 15, 2019 rendered it
unclear whether he was alleging that Officer Ferreira or some other unidentified correctional
officer searched his cell. The Court was therefore unable to determine whether the Plaintiff had
plausibly alleged that Officer Ferreira substantially burdened the Plaintiff’s religious beliefs or
retaliated against the Plaintiff for having made a complaint to Captain Johnson so as to give rise
to a viable First Amendment free exercise or retaliation claim. The Court accordingly afforded
the Plaintiff an opportunity to file an amended complaint “to include allegations sufficient to
establish Officer Ferreira’s (or other named defendant) involvement in the alleged constitutional
deprivations.” (IRO at 15.)
On February 18, 2021, the Plaintiff filed an amended complaint. (ECF No. 6.) The Court
does not herein repeat the general nature of Plaintiff’s allegations or the standard by which prisoner
complaints are reviewed pursuant to 28 U.S.C. § 1915A. Nor does the Court repeat the substantive
law regarding First Amendment retaliation or free exercise claims.
Having reviewed the allegations in the amended complaint and the exhibits attached
thereto, the Court concludes that the Plaintiff has stated plausible First Amendment retaliation and
free exercise claims against Officer Ferreira. As the Court noted in the IRO, the Plaintiff alleged
in the original complaint “that Officer Ferreira searched his cell and confiscated his personal
property in retaliation for his verbal complaint to Captain Johnson about the derogatory comments
Officer Ferreira made about him being a terrorist.” (IRO at 10 (citing Compl. ¶ 45).) He repeats
those allegations in the amended complaint. Yet the Plaintiff presented mutually exclusive
allegations that suggested on the one hand that the Plaintiff observed Officer Ferreira removing
items from the Plaintiff’s cell, and on the other hand that the Plaintiff was not in the cell during
the search and thus did not discover that his belongings and religious and legal materials were
missing until he returned. (IRO at 13 (citing Compl. ¶¶ 17, 19–21.) The exhibits attached to the
complaint also indicated that the Plaintiff was unable to ascertain the identity of the officer who
had conducted the shakedown of his cell, thus contradicting the Plaintiff’s allegations that Officer
Ferreira was responsible for the search. (IRO at 13 (citing Compl. Exs. 1–4).)
However the Plaintiff has attached a new exhibit to the amended complaint comprised of
a MacDougall Walker Correctional Institution record which he received in response to a Freedom
of Information Request which reflects that Ferreira was the inspecting officer responsible for the
shakedown on November 15, 2019. (Pl.’s Ex. 7, ECF No. 6 at 34.) While the Plaintiff claims that
this document was “falsified” (Am. Compl. ¶ 54) based on an inexplicable timestamp that reads
“MWCI 2019 11 31,” the Court perceives no reason to question the reliability of the record at this
juncture. Construing this exhibit in the Plaintiff’s favor, it supplies information that was missing
from the Plaintiff’s original complaint—namely, the identity of the officer responsible for the
shakedown leading to the alleged confiscation of the Plaintiff’s belongings. The Plaintiff has also
alleged in the amended complaint that following his report of Officer Ferreira’s racist remarks to
Captain Johnson, “Ferreira confronted the Plaintiff and stated ‘you expletive snitch’ . . . you
expletive told on me, when the time is right I’m going to shake you down and expletive your cell
up.” (Id. ¶¶ 31–32.) These allegations further support the plausible inference that the adverse
action allegedly undertaken by Officer Ferreira was causally connected to the Plaintiff’s protected
conduct—namely, his complaint to Captain Johnson.
The Court will therefore permit the
Plaintiff’s First Amendment retaliation claim to proceed against Officer Ferreira.
The amended complaint also alleges that Ferreira’s conduct, i.e., the confiscation of the
Plaintiff’s religious materials, “mustered a chokehold on his religious obligations such as prayer
and study.” (Id. ¶¶ 44–45.) In the original complaint he alleged more specifically that “Ferreira
violated his [First] Amendment right to practice his religious beliefs by confiscating his Koran and
prayer rug, items plaintiff utilizes in his daily prayers.” (Compl. ¶ 50.) These allegations are not
repeated in the amended complaint. However, construing the allegations in the Plaintiff’s favor,
the Court will also permit the Plaintiff’s free exercise claim to proceed against Ferreira for further
development of the record. See, e.g., Shepherd v. Powers, No. 11 CIV. 6860 (LTS) (RLE), 2012
WL 4477241, at *8 (S.D.N.Y. Sept. 27, 2012) (permitting free exercise claim to proceed based on
inmate’s allegation that his Bible was confiscated and that he was denied participation in religious
services while placed in segregation without any legitimate penological reason); Malik v. City of
New York, No. 11 CIV. 6062 (PAC) (FM), 2012 WL 3345317, at *12 (S.D.N.Y. Aug. 15, 2012),
report and recommendation adopted, 2012 WL 4475156 (S.D.N.Y. Sept. 28, 2012) (“Malik’s
allegations that he practices Islam and that Officers Aviles and Santiago ripped up and destroyed
his sacred Quran states a legally sufficient claim under both the Free Exercise Clause and the
RLUIPA.”). Plaintiff further evinces an intention to name additional defendants, whose identities
and precise roles in the shakedown remain unclear. (See Am. Compl. ¶ 97.) Also unclear is
whether claims against these unnamed defendants relate to the confiscation of his transcripts, his
photographs, or his religious materials. As Plaintiff himself points out, however, should these
claims become clearer and the identities of these actors become known, Plaintiff can file leave to
amend his complaint again during the course of the litigation.
These allegations likewise state a claim against Ferreira under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”). The statute provides that “[n]o government shall
impose a substantial burden on the religious exercise of a person residing in or confined to an
institution . . . unless the government demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.” Williams v. Annucci, 895 F.3d 180, 188 (2d
Cir. 2018) (quoting 42 U.S.C. § 2000cc-1(a)). RLUIPA therefore establishes “a more stringent
standard than does the First Amendment, barring the government from imposing a substantial
burden on a prisoner’s free exercise unless the challenged conduct or regulation furthers a
compelling governmental interest and is the least restrictive means of furthering that interest.”
Lopez v. Cipolini, 136 F. Supp. 3d 570, 587 (S.D.N.Y. 2015) (quoting Holland v. Goord, 758 F.3d
215, 224 (2d Cir. 2014)). “Whether or not a prisoner sufficiently pleads a substantial burden on a
sincerely held religious belief under RLUIPA involves the same threshold analysis as under the
First Amendment.” Id.
Although the Plaintiff does not specifically cite RLUIPA in his complaint, the Court will
construe the Plaintiff’s claims as also alleging a violation of RLUIPA, based on the statute’s
applicability. See, e.g., Hammock v. Pierce, No. 15-CV-09052 (NSR), 2018 WL 2108244, at *5
(S.D.N.Y. May 7, 2018) (“constru[ing] Plaintiff’s allegations in the Amended Complaint that his
religious items were confiscated as raising both a Free Exercise and RLUIPA claim” even though
he did not cite RLUIPA, in light of the court’s obligation “to construe the Amended Complaint to
raise the strongest arguments it suggests” given the plaintiff’s pro se status). While ‘“RLUIPA
does not authorize claims for monetary damages against state officers in either their official or
individual capacities,’ the statute does provide for injunctive relief.” Id. at *6 (quoting Holland,
758 F.3d at 224).
However the Court will not permit the Plaintiff to bring additional claims that are outside
the scope of the amendment permitted by the IRO. Specifically, the Plaintiff seeks to add
Administrative Remedies Coordinator Bennett as a defendant to his retaliation claim based on his
allegation that Bennett refused to answer the Plaintiff’s requests pertaining to his administrative
grievances. (See Am. Compl. ¶¶ 115–19.) The Court previously dismissed the Plaintiff’s
Fourteenth Amendment due process claim against Bennett based on similar allegations, noting that
“[i]nmates have no constitutional entitlement to grievance procedures, to receive a response to a
grievance, or to have a grievance properly processed.” (IRO at 5.) The Court did not afford
Plaintiff the opportunity to replead his claims against Bennett and these new allegations do not
alter the Court’s prior conclusion that the claims against Bennett are not cognizable. While the
Plaintiff cites Christman v. Skinner, 468 F.2d 723 (2d Cir. 1972), for the proposition that “prison
officials ‘must’ adhere by the administrative directives” (Am. Compl. ¶ 121), Christman does not
support his claims. There, the Second Circuit held in relevant part that the district court erred in
dismissing a claim that prison guards refused to mail the prisoner’s letters to his attorneys.
Christman, 468 F.2d at 726. However the Court of Appeals held that this was because such
conduct, if proven, could constitute a denial of the prisoner’s federally protected right to
communicate with counsel. See id. Here, the Plaintiff’s allegations do not plausibly suggest that
Bennett’s actions denied Plaintiff access to the courts or to counsel, even assuming she “acted with
a culpable state of recklessness” as he alleges. (Am. Compl. ¶ 117.) His allegations therefore do
not implicate a viable constitutional violation.
The Plaintiff also alleges that in requesting that the Department of Corrections preserve the
video footage of the shakedown of his cell, Captain Black offered a window from 6:00 to 6:30
P.M. for preservation but the Plaintiff realized in hindsight that he did not leave his cell until 6:20
P.M. on November 15, 2019. (Id. ¶¶ 87–92.) He therefore states that “in essence the Captain only
gave him 10 minutes of video preservation from 6:20 to 6:30 P.M.” and “asks the Court to order
the D.O.C. not to destroy the video of the entire shakedown,” after which he will seek leave to file
a second amended complaint. (Id. ¶¶ 93, 95–96.) He appears to seek this discovery so that he can
identify the “other actors who entered the Plaintiff[’s] cell on the day in question and removed
items from his cell.” (Id. ¶ 97.) However, as this Court observed in the IRO, “[a]lthough
Nicholson filed requests seeking a list of officers who searched his cell and requests seeking to
view the video footage of the search so he could identify the officer who searched his cell, prison
officials either denied his request to view the video footage or indicated that it was no longer
available.” (IRO at 13.) To the extent that the Plaintiff maintains that such footage nonetheless
remains available and asks this Court to order its preservation, the Court observes that the Standing
Order on initial disclosures includes a directive that video of any incident described in the
complaint must be preserved. And Plaintiff can seek access to any such video in the context of
this litigation in due course.
(1) In accordance with the foregoing, the Plaintiff’s First Amendment retaliation and free
exercise claims against Officer Ferreira in his individual and official capacity are permitted to
proceed. In addition, the Court construes the Plaintiff’s allegations as stating a claim against
Officer Ferreira under RLUIPA, which will likewise proceed.
(2) The Clerk shall verify the current work address of Officer Ferreira with the Department
of Correction Office of Legal Affairs and a mail a copy of the Complaint, Amended Complaint,
initial IRO, this Order, and a waiver of service of process request packet to Officer Ferreira in his
individual capacity at the address provided on or before June 24, 2021, and report to the Court on
the status of the waiver request on the thirty-fifth day after mailing. If the Defendant fails to return
the waiver request, the Clerk shall arrange for in-person service by the U.S. Marshals Service and
the Defendant shall be required to pay the costs of such service.
(3) The Clerk shall prepare a summons form and send an official capacity service packet
to the U.S. Marshals Service. The U.S. Marshal is directed to effect service of the Amended
Complaint on Defendant Ferreira in his official capacity at the Office of the Attorney General, 165
Capitol Avenue, Hartford, CT 06106, on or before June 24, 2021, and to file a return of service
on or before July 6, 2021.
(4) The Clerk shall send the Plaintiff a copy of this Order.
(5) The Clerk shall send a courtesy copy of the Complaint, Amended Complaint, initial
IRO, and this Order to the Connecticut Attorney General and the Department of Correction Office
of Legal Affairs.
(6) The Defendant shall file a response to the Amended Complaint—either an answer or
motion to dismiss—within sixty (60) days from the date the notice of lawsuit and waiver of service
of summons form is mailed to him. If he chooses to file an answer, he shall admit or deny the
allegations and respond to the cognizable claims recited above. This may also include all
additional defenses permitted by the Federal Rules of Civil Procedure.
(7) Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be
completed by December 3, 2021. Discovery requests need not be filed with the Court.
(8) All motions for summary judgment shall be filed by January 3, 2022.
(9) Pursuant to Local Civil Rule 7(a), a nonmoving party must respond to a dispositive
motion within twenty-one (21) days of the date the motion was filed. If no response is filed, or
the response is not timely, the dispositive motion can be granted absent objection.
(10) If the Plaintiff changes his address at any time during the litigation of this case, Local
Rule 83.1(c)(2) provides that he MUST notify the Court. Failure to do so can result in the dismissal
of the case. The Plaintiff must give notice of a new address even if he is incarcerated. He should
write “PLEASE NOTE MY NEW ADDRESS” on the notice. It is not enough to just put the new
address on a letter without indicating that it is a new address. He should also notify defense counsel
of his new address.
(11) The Plaintiff shall utilize the Prisoner Efiling Program when filing documents with
the Court. The Plaintiff is advised that the Program may be used only to file documents with the
Court. Because Local Rule 5(f) provides that discovery requests are not to be filed with the Court,
discovery requests must be served on Defendant’s counsel by regular mail.
(12) The Clerk shall immediately enter the District of Connecticut Standing Order Re:
Initial Discovery Disclosures concerning cases initiated by self-represented inmates and shall send
a copy to the Plaintiff.
SO ORDERED at Bridgeport, Connecticut, this 3rd day of June 2021.
/s/ Kari A. Dooley
KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE
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