Shaw v. Washington et al

Filing 10

INITIAL REVIEW ORDER. See attached. Discovery due by 12/9/2024. Dispositive Motions due by 1/8/2025. Signed by Judge Kari A. Dooley on 5/8/2024. (Haider, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ELIJAH SHAW,
Plaintiff,

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v.
CRAIG WASHINGTON, et al.,
Defendants.

CASE NO. 3:24-cv-00654 (KAD)

MAY 8, 2024

INITIAL REVIEW ORDER
Kari A. Dooley, United States District Judge:
Plaintiff, Elijah Shaw (“Shaw”), a pre-trial detainee at Corrigan Correctional Center, filed
this complaint pro se under 42 U.S.C. § 1983 against Department of Correction (“DOC”)
employees Craig Washington, Captain Papoosha, and Correctional Officer Zack (together
“Defendants”). Shaw seeks damages and injunctive relief for violation of his First Amendment
right to freedom of speech and his Fourteenth Amendment right to substantive and procedural due
process.
Standard of Review
The Court must review prisoner civil complaints and dismiss any portion of the complaint
that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that
seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(a)–
(b). In reviewing a pro se complaint, the Court must assume the truth of the allegations and
interpret them liberally to “raise the strongest arguments [they] suggest[].” Abbas v. Dixon, 480
F.3d 636, 639 (2d Cir. 2007); see also Tracy v. Freshwater, 623 F.3d 90, 101–02 (2d Cir. 2010)
(discussing special rules of solicitude for pro se litigants). Although detailed allegations are not
required, the complaint must include sufficient facts to afford the defendants fair notice of the
claims and the grounds upon which they are based and to demonstrate a right to relief. Bell Atlantic

v. Twombly, 550 U.S. 544, 555–56 (2007). Conclusory allegations are not sufficient. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570.
Allegations
Shaw is a pre-trial detainee at Corrigan Correctional Center, Compl., ECF No. 1 at ¶ 2,
but he re-entered the Connecticut Department of Correction through the New Haven Correctional
Center on December 29, 2023. Id. at ¶ 7. Upon entry, he was immediately placed in the Restrictive
Housing Unit (“RHU”) without proper notice. Id. Shaw was in the RHU from December 29, 2023,
to January 9, 2024. Id. at ¶ 9. While there, Shaw was “treated as a Box inmate.” Id. Shaw was not
allowed to order commissary, recreate with other inmates, interact with other inmates in general
population, and was hand-cuffed behind his back while transported to and from the medical unit.
Id. at ¶ 9. Shaw was also denied visits with family. Id. at ¶ 10.
Defendant Zack did not inform Shaw why he had been placed in the RHU. Id. at ¶ 11. Zack
instead attempted to have Shaw self-admit to the RHU. Id. Shaw refused to self-admit to the RHU
because he was not a gang member. Id. at ¶ 12. Zack, who is a “D.R. intel investigator,” was tasked
with informing inmates of administrative procedures. Id. at ¶ 13. But Zack did not do that. Id.
Instead, Zack informed Shaw about photographic evidence he had gathered against Shaw from
social media. Id. at ¶ 14. Shaw was “found guilty” at a hearing and placed in “Phase 2 SRG
programming.” Id. at ¶ 15.
Defendants Washington and Papoosha oversee the “Affiliation Procedures.” Id. at ¶ 16.
Shaw maintains he did not communicate with anyone in the SRG unit, his charge had nothing to
do with gang activity, and the social media photographs that were used to place Shaw in the SRG
unit were over two years old. See id. at ¶ 17. The conditions in the SRG unit are “harsh.” Id. at ¶

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18. Shaw only receives three phone calls per week, and he can receive visits only from immediate
family members. Id. at ¶ 19. This restriction has strained Shaw’s relationship with his girlfriends.
Id. As an SRG inmate, Shaw is denied proper programming, addiction services, religious services,
and property, such as electronics and hygienic supplies. Id. at ¶ 20. Shaw is not given proper
cleaning products, his cell is not cleaned, and he is denied proper medical and mental health
treatment. Id. at ¶ 21. Shaw has also been denied access to the law library because of his SRG
status. Id. at ¶ 23. Shaw claims that imprisonment in the SRG unit is normally limited to two
months, but he expects to stay in the unit for five months. Id. at ¶ 22. Shaw has not received any
disciplinary tickets while at the prison. Id.
Shaw maintains that Defendants violated his First Amendment right by punishing him and
subjecting him to hardship because of old photographs on social media. Id. at ¶ 25. He also claims
that Defendants have violated his Fourteenth Amendment right to substantive and procedural due
process by placing him in a restrictive unit. See id. at ¶ 26. Shaw is seeking $100,000 in
compensatory damages and $75,000 in punitive damages against each defendant. Id. at ¶¶ 27–28.
Shaw also seeks injunctive relief—namely an order removing Shaw from the SRG unit and placing
him back in general population. Id. at ¶ 29.
Discussion
Shaw asserts three claims: 1) a First Amendment retaliation claim related to Defendants
use of his social media content as a basis to place him in restrictive housing, 2) a Fourteenth
Amendment substantive due process claim related to his placement in restrictive housing, and 3)
a Fourteenth Amendment procedural due process claim related to his placement in restrictive
housing. This Court considered similar allegations in Caves v. Payne, 2020 WL 1676916 (D. Conn.
2020). The plaintiff in that case claimed violations of the same constitutional rights arising out of

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his placement in the SRG program based upon his social media content. Thus, the Court’s decision
in Caves will guide its decision here.
First Amendment Claim
Shaw was “found guilty” at his hearing based on photographic evidence that Zack had
gathered from Shaw’s social media account. See Compl. at ¶¶ 14–15. Shaw claims that punishing
him with restrictive housing for those photographs violated his First Amendment rights. See id. at
¶ 25. Because Shaw claims he was punished by prison officials for exercising his First Amendment
right to freedom of speech, the Court construes this claim as a First Amendment retaliation claim.
See Caves, 2020 WL 1676916, at *3 (construing a prisoner’s claim that he was placed in the SRG
unit because of his social media posts as a First Amendment retaliation claim).
To state a cognizable First Amendment retaliation claim, Shaw must allege: “(1) that the
speech or conduct at issue was protected, (2) that the defendant[s] took adverse action against the
plaintiff, and (3) that there was a causal connection between the protected speech and the adverse
action.” Burns v. Martuscello, 890 F.3d 77, 84 (2d Cir. 2018) (quoting Dolan v. Connolly, 794
F.3d 290, 294 (2d Cir. 2015)).
While a prisoner’s social media posts are protected speech under the First Amendment,
and the prisoner’s placement in restrictive housing is properly alleged to be “adverse action against
the plaintiff,” see Caves, 2020 WL 1676916 at *3, Plaintiff has not alleged a causal connection
between the exercise of his First Amendment rights and the adverse action. Caves, 2020 WL
1676916, at *4.
Plaintiff’s placement in restrictive housing was not motivated by the exercise of his free
speech rights—his speech simply offered the evidentiary basis for the Defendants’ decision to
place him in restrictive housing. In Caves, this Court reasoned as follows:

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“Caves’ designation was not made to punish him for posting on social media or to deter
him from doing so in the future. Rather the social media posts were merely the evidence
used to support his SRG designation. The defendants’ use of social media posts and Caves’
own statements therein, is no different than if Caves announced upon his arrival at the
facility that he was a gang member and the defendants used those statements to designate
him to the SRG unit.”
Id. Accordingly, the First Amendment retaliation claim is dismissed. With respect to the
due process claims, the Court similarly applies its reasoning in Caves to the current case.
Fourteenth Amendment Substantive Due Process Claim
Shaw claims that Defendants violated his Fourteenth Amendment right to substantive due
process by placing him in restrictive housing. See Compl. at ¶ 26. “A pretrial detainee may not be
punished at all under the Fourteenth Amendment, whether ... by deliberate indifference to
conditions of confinement, or otherwise.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d. Cir. 2017). A
pretrial detainee can state a substantive due process claim regarding the conditions of his
confinement in two ways. He can show that the defendants were deliberately indifferent to the
conditions of his confinement, or he can show that the conditions are punitive. Id. at 34 n.12. Shaw
alleges both. See Compl. at ¶ 26.
To state a claim for deliberate indifference, Shaw first must show that the challenged
“conditions, either alone or in combination, pose an unreasonable risk of serious damage to his
health, which includes the risk of serious damage to physical and mental soundness.” Darnell, 849
F.3d at 30 (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)) (internal quotation marks
omitted). “[T]he conditions themselves must be evaluated in light of contemporary standards of
decency.” Id. (citation and internal quotation marks omitted). This inquiry focuses on the “severity
and duration” of the conditions, “not the detainee’s resulting injury.” Id. (citing Willey v.
Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015)). Conditions are also considered in combination where
one combines with another to affect at least one identifiable human need. See Wilson v. Seiter, 501

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U.S. 294, 304 (1991); see also Darnell, 849 F.3d at 32 (“the conditions must be analyzed in
combination, not in isolation, at least where one alleged deprivation has bearing on another”).
Shaw alleges that during his expected five-month stay in the SRG unit, he only receives
three phone calls per week and can only receive visits from immediate family members. Compl.
at ¶ 19. He alleges that he is denied proper programming, addiction services, religious services,
and property, such as electronics and hygienic supplies, that he is not given proper cleaning
products, his cell is not cleaned, and that he is denied proper medical and mental health treatment.
Id. at ¶¶ 20–21. Finally, he alleges he has been denied access to the law library. Id. at ¶ 23. For
initial review purposes only, these facts are sufficient to allege objectively serious deprivations.
See Caves, 2020 WL 1676916, at *5 (plaintiff showed objectively serious deprivations when “for
380 days, he was confined to his cell for twenty-three hours per day, had to eat in his cell in close
proximity to the toilet, had to shower in unsanitary shower stalls, could visit only with immediate
family, had restrictions on phone calls and commissary purchases, was denied exercise, and could
not participate in any programs.”).
Shaw must also show that “the defendant-official acted intentionally to impose the alleged
condition” or “recklessly failed to act with reasonable care to mitigate the risk that the condition
posed to the pretrial detainee even though the defendant-official knew, or should have known, that
the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35. Shaw alleges
Defendants intentionally subjected him to harsh conditions of confinement because they believed
he was a gang member. See Compl. at ¶¶ 14–15. Shaw has plausibly alleged intentional conduct
or, at a minimum, a reckless failure to act with reasonable care to minimize the risk to which he
was or will be exposed. See Caves, 2020 WL 1676916, at * 5 (concluding the same on similar
facts).

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As noted above, substantive due process is violated if the pretrial conditions are punitive.
Bell v. Wolfish, 441 U.S. 520, 535 (1979). In considering such a claim, the “court must decide
whether the [condition] is imposed for the purpose of punishment or whether it is but an incident
of some other legitimate governmental purpose.” Id. at 538. Absent evidence of an “expressed
intent to punish on the part of detention facility officials, that determination generally will turn on
whether an alternative purpose to which the restriction may rationally be connected is assignable
for it, and whether it appears excessive in relation to the alternative purpose assigned to it.” Id.
(internal citations and punctuation omitted) “[I]f a restriction or condition is not reasonably related
to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the
purpose of the governmental action is punishment that may not constitutionally be inflicted upon
detainees qua detainees.” Id. at 539.
Conversely, “if a particular condition or restriction of pretrial detention is reasonably
related to a legitimate governmental objective, it does not, without more, amount to punishment.”
Id. Legitimate government objectives include “maintain[ing] security and order at the institution
and mak[ing] certain no weapons or illicit drugs reach detainees,” “ensuring the detainees’
presence at trial,” and managing the facility where the detainee is held. Id. at 540.
Shaw alleges he was placed in restrictive housing based on social media photographs
without considering his explanation. Compl. at ¶¶ 12, 15. Although Shaw alleges that his
designation was reviewed at a hearing, the allegations suggest that there was no individualized
finding that Shaw posed a risk to institutional security, or that segregated housing was appropriate
for him during pretrial detention. Id. at ¶ 15. Accordingly, Shaw’s substantive due process claim
that his conditions of confinement are punitive may proceed. See Caves, 2020 WL 1676916, at *6
(concluding the same on similar facts).

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Fourteenth Amendment Procedural Due Process Claim
Shaw last contends that Defendants violated his right to procedural due process at his
hearing by “[a]rbitar[i]ly or [m]aliciously” finding him guilty and placing him in restrictive
housing. Compl. at ¶ 15. On a procedural due process claim, the court evaluates only the
procedures used for the hearing officer to reach his decision. Proctor v. LeClaire, 846 F.3d 597,
608 (2d Cir. 2017). The level of procedural protection required depends on the purpose of the
hearing. Bolden v. Alston, 810 F.2d 353, 357 (2d Cir. 1987). For a disciplinary proceeding, an
inmate is entitled to advance written notice of the charge, adequate time to prepare a defense, a
written statement of the reasons for the disciplinary action taken, and a limited opportunity to
present witnesses and evidence in his defense. Wolff v. McDonnell, 418 U.S. 539, 561–70 (1974).
For an administrative proceeding, the inmate is entitled only to “some notice of the charges against
him and an opportunity to present his views [either orally or in writing] to the prison official
charged with deciding” the matter. Hewitt v. Helms, 459 U.S. 460, 476 (1983).
Shaw claims he was “immediately, and [m]aliciously found guilty” at the hearing. Compl.
at ¶ 15. He claims there “was no updated valid pictures/proof” and “no other evidence[ ]”
presented. Id. Although it is clear that Shaw received a hearing, Shaw’s claim that he was
“immediately” “found guilty” suggests, at this initial stage, that he may not have been given an
opportunity to present his views at the hearing. Therefore, Shaw’s procedural due process claim
may proceed for further development of the record. See Caves, 2020 WL 1676916, at *7
(concluding the same after considering similar facts).
Official Capacity Claims
Shaw seeks monetary damages from the Defendants. See Compl. at ¶¶ 27–28. The Eleventh
Amendment prohibits an award of monetary damages against state officials in their official

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capacities unless the state has waived this immunity or Congress has abrogated it. Kentucky v.
Graham, 473 U.S. 159, 169 (1995). Section 1983 does not abrogate state sovereign immunity,
Quern v. Jordan, 440 U.S. 332, 343 (1979), and Shaw alleges no facts suggesting that the State
has waived immunity in this case. Thus, Shaw cannot receive damages from the Defendants in
their official capacities. Any claim for damages against the Defendants in their official capacities
is dismissed pursuant to 28 U.S.C. § 1915A(b)(2). See Caves, 2020 WL 1676916, at *8
(concluding the same after considering similar facts).
Injunctive relief
Shaw also seeks prospective injunctive relief. He asks the Court to enter an order removing
him from restrictive housing and placing him back in general population. Compl. at ¶ 29. “[T]he
Eleventh Amendment does not preclude suits against state officials acting in their official capacity
that seek prospective injunctive relief.” Kuck v. Danaher, 822 F. Supp. 2d 109, 141 (D. Conn.
2011); Ex parte Young, 209 U.S. 123 (1908). Thus, while Shaw cannot sue the Defendants in their
official capacity for money damages, he can sue them in their official capacity for prospective
injunctive relief. Shaw’s claims for prospective injunctive relief against Defendants may proceed.
Orders
Shaw’s First Amendment claim is dismissed. The Fourteenth Amendment substantive due
process and procedural due process claims may proceed. Shaw may only sue the Defendants for
damages in their individual capacities. But Shaw may sue Defendants in their official capacity for
prospective injunctive relief.
The Court enters the following additional orders:
(1) The Clerk shall verify the current work address for each Defendant with the
Department of Correction Office of Legal Affairs, mail a waiver of service of process request

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packet to each Defendant at the address provided on or before May 29, 2024, and report to the
Court on the status of the waiver request on the thirty-fifth day after mailing. If any Defendant
fails to return the waiver request, the Clerk shall make arrangements for in-person service by the
U.S. Marshals Service on the Defendant in his or her individual capacity and the Defendant shall
be required to pay the costs of such service in accordance with Federal Rule of Civil Procedure
4(d).
(2) The Clerk shall prepare a summons form and send an official capacity service packet
to the U.S. Marshal Service which shall include the Complaint. The U.S. Marshal is directed to
effect service of the Complaint on the Defendants in their official capacities at the Office of the
Attorney General, 55 Elm Street, Hartford, CT 06141, on or before May 29, 2024 and to file a
return of service on or before June 4, 2024.
(3) The Clerk shall send Shaw a copy of this Order.
(4) The Clerk shall send a courtesy copy of the Complaint and this Order to the
Connecticut Attorney General and the Department of Correction Office of Legal Affairs.
(5) The Defendants shall file their response to the complaint, either an answer or motion to
dismiss, within sixty (60) days from the date the waiver forms are sent. If they choose to file an
answer, they shall admit or deny the allegations and respond to the cognizable claim recited above.
They also may include all additional defenses permitted by the Federal Rules.
(6) Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be
completed by December 9, 2024. Discovery requests need not be filed with the court.
(7) All motions for summary judgment shall be filed on or before January 8, 2025.
(8) 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

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response is not timely, the dispositive motion can be granted absent objection.
(9) If Shaw changes his address at any time during the litigation of this case, Local Court
Rule 83.1(c)2 provides that he MUST notify the court. Failure to do so can result in the dismissal
of the case. Shaw must give notice of a new address even if he is incarcerated. Shaw 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. If Shaw has more than one pending case, he
should indicate all the case numbers in the notification of change of address. Shaw should also
notify the Defendants or the attorney for the Defendants of his new address.
(10) Shaw shall utilize the Prisoner Efiling Program when filing documents with the court.
Shaw is advised that the Program may be used only to file documents with the court. As local court
rules provide that discovery requests are not filed with the court, discovery requests must be served
on Defendants’ counsel by regular mail.
SO ORDERED at Bridgeport, Connecticut, this 8th day of May 2024.
/s/ Kari A. Dooley
KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE

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