Marrero v. Weir

• Decision Date: 26 September 2014
• Docket Number: CASE No. 3:13-CV-0028(RNC)
• Court: U.S. District Court — District of Connecticut
• Parties: FREDDY MARRERO, Plaintiff, v. WEIR, et al., Defendants.

FREDDY MARRERO, Plaintiff, v. WEIR, et al., Defendants.

CASE No. 3:13-CV-0028(RNC)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

September 26, 2014

RULING AND ORDER

Plaintiff Freddy Marrero brings this action pro se and in forma pauperis under 28 U.S.C. § 1983 against personnel of the Connecticut Department of Correction alleging violations of his rights under the First, Eighth and Fourteenth Amendments. Defendants have moved to dismiss all claims for lack of subject matter jurisdiction and failure to state a claim on which relief may be granted. (ECF No. 22). For reasons that follow, the motion to dismiss is granted.

I. Background

The amended complaint alleges the following. On April 29, 2011, while incarcerated at Osborn Correctional Institution ("Osborn"), plaintiff was accused of conspiring with a correctional officer to smuggle contraband into the facility. He was strip searched, transferred to MacDougall-Walker Correctional Institution, and placed in administrative detention. The allegation that plaintiff had conspired with a correctional officer to smuggle drugs into Osborn arose from a recordedtelephone conversation between the plaintiff and his mother on April 10, 2011.

On May 6, 2011, plaintiff met with Captain Beaudry, who asked him to disclose the name of the officer with whom he had conspired to bring drugs into Osborn; plaintiff denied knowledge of any conspiracy. On May 10, 2011, plaintiff met with Captain Zawilinski and a state police officer. Zawilinski told plaintiff that he would be transferred out of restrictive housing if he revealed the name of the officer bringing drugs into Osborn. Id. ¶ 18. Plaintiff again denied knowledge of any such activity. Zawilinski threatened that the state police were going to arrest plaintiff and his mother, then played a tape of the April 10 telephone conversation, explaining that the conversation appeared to be about drugs. Lieutenant Torres entered the room and attempted to induce plaintiff to help himself by cooperating with the investigation; when plaintiff refused, Torres responded: "I will personally make the rest of your bid [time] hard for you."

On May 25, 2011, plaintiff received a disciplinary report for conspiracy to convey contraband. The report, prepared by Officer Lizon, stated that the April 10 conversation demonstrated that plaintiff was working with a staff member to smuggle suboxone pills into Osborn. Plaintiff was informed that his nephew was sent to prison as a result of his alleged involvement in the smuggling. On June 17, 2011, following a hearing at whichplaintiff appeared but declined an advocate, plaintiff was found guilty of conspiracy to convey contraband and given fifteen days time served in restrictive housing, sixty days loss of phone privileges, and thirty days loss of recreation.

On June 9, 2011, plaintiff received a second disciplinary report for security tampering, based on an attempted three-way telephone call during a different phone conversation with his mother on April 8, 2011. Plaintiff apparently pleaded guilty to this charge. See Disciplinary Process Summary Report, Exh. E, Defs.' Opp, to Mot. for Prelim. Inj., at *86 (ECF No. 10).

After learning from his mother that she was not on his visiting list, plaintiff wrote to the visiting clerk on September 23, 2011, requesting that a visiting form be mailed to his mother. On October 10, 2011, he was notified that his mother was denied approval to visit him. He subsequently received a message from Warden Murphy explaining: "[Y]ou know why your mother isn't on the list. I have no control over this issue, only you do." Plaintiff submitted a number of complaints to Beaudry concerning the restriction on his visitation privileges but all of them went unanswered. Plaintiff's phone privileges also were not restored because the investigation into drug smuggling remained open.

In mid-December 2011, plaintiff was summoned to meet with Paine and Beaudry, who informed him that it was in his best interest to talk to Zawilinski. Paine threatened to sendplaintiff to restrictive housing pending another investigation. Zawlinski joined the meeting by speakerphone and asked plaintiff for the name of the correctional officer that was smuggling drugs into Osborn, offering to reinstate his phone and visitation privileges if he cooperated. Plaintiff again denied knowledge of any smuggling.

On January 15, 2013, plaintiff wrote a letter to then-Commissioner Arnone complaining that his phone pin number had not been reactivated and visitation privileges with his mother had not been restored. Defendant Weir, Director of Security, responded:

"As you know, you were involved in an investigation conducted by this office and as a result of our findings and your unwillingness to cooperate with the investigation, certain sanctions were imposed. At that time, you were made aware of the sanctions and the reason why. You were also informed that as soon as you are willing to cooperate with this office, we will begin to reduce/lift some of the sanctions. If you are considering doing so, please contact this office." Ex. Q at *40, Appendix A, Defs.' Mot. to Dismiss (ECF No. 22-3).

As of the time the amended complaint was filed on July 25, 2013, plaintiff's phone and visitation privileges had not been restored.

II. Analysis

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550U.S. 544, 570 (2007)). In deciding a motion to dismiss, well-pleaded facts must be accepted as true and considered in the light most favorable to the plaintiff. Patane v. Clark, 508 F.3d 106, 111 (2d Cir. 2007). "While pro se complaints must contain sufficient factual allegations to meet the plausibility standard, the court is obliged to read pro se submissions with special solicitude and to interpret them to raise the strongest arguments that they suggest." Sealey v. Affiliated Computer Servs., Inc., 522 F. App'x 35, 36 (2d Cir. 2013) (citations omitted).

A. Eighth Amendment Claims

Defendants have moved to dismiss plaintiff's Eighth Amendment claims on the ground that the amended complaint does not allege cruel and unusual punishment. Plaintiff alleges that his Eighth Amendment rights have been violated because he has been improperly deprived of phone and visitation privileges and because he was transferred, placed in administrative detention and subjected to additional discipline despite insufficient evidence. I agree with defendants that these allegations are insufficient to state an Eighth Amendment claim.

The Eighth Amendment requires prison officials to provide for prisoners' "basic human needs - e.g., food, clothing, shelter, medical care, and reasonable safety." DeShaney v. Winnebago Cty Dep't. of Social Servs., 489 U.S. 189, 200 (1989). Conditions of confinement can give rise to an Eighth Amendmentviolation if (1) the deprivation is sufficiently serious and (2) the officials involved in the deprivation act with deliberate indifference to inmate health or safety. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002). The first element is satisfied when prison conditions violate contemporary standards of decency; the second element is satisfied when correctional officials are aware of and disregard a substantial risk of serious harm. See Riddick v. Arnone, 3:11CV631 SRU, 2012 WL 2716355, at *5 (D. Conn. July 9, 2012), appeal dismissed (Jan. 16, 2013). Here, neither element is met.

Plaintiff does not allege a deprivation that is sufficiently serious to support a claim under the Eighth Amendment, such as the "'unnecessary and wanton infliction of pain'" or "'deprivations denying the minimal civilized measures of life's necessities.'" Rivera v. Senkowski, 62 F.3d 80, 85 (2d Cir. 1995) (quoting citing Wilson v. Seiter, 501 U.S. 294, 303 (1991)). To the extent he relies on the indefinite withholding of his phone privileges and visitation with his mother, his claim is unavailing notwithstanding his assertions that these sanctions were unsupported by evidence, in excess of sanctions outlined in the Code of Penal Discipline, and imposed on him coercively in an effort to force him to provide information about an alleged co-conspirator. "[L]oss of privileges, in general, does not amount to infliction of cruel and unusual punishment; and loss ofvisitation and telephone privileges is no exception to this rule." Thrower v. N.J. Dep't of Corr., CIV A 07-3434 FSH, 2007 WL 2683007, at *4 (D.N.J. Sept. 7, 2007); see id. (visitation contacts do not qualify as necessities, such as adequate food, clothing, shelter, sanitation, medical care and personal safety); see also Overton v. Bazzetta, 539 U.S. 126, 137 (2003) (withdrawal of visitation privileges for a limited period as a regular means of effecting prison discipline does not constitute a dramatic departure from accepted standards for conditions of confinement); Zimmerman v. Burge, 06CV0176(GLS-GHL), 2008 WL 850677, at *3 (N.D.N.Y. Mar. 28, 2008) (ongoing and indefinite restriction on contact visits not cruel and unusual punishment); Hernandez v. McGinnis, 272 F. Supp. 2d 223, 228 (W.D.N.Y. 2003)(roughly three-year suspension of visitation rights not an Eighth Amendment violation; the revocation, which was not permanent or arbitrary, served a legitimate purpose of deterring visit-related misconduct and did not dramatically depart from accepted standards for conditions of confinement, create inhumane conditions, or otherwise constitute cruel and unusual punishment); Castillo v. FBOP FCI Fort Dix, 221 F. App'x 172, 175-76 (3d Cir. 2007) (two-year loss of telephone and visitation privileges did not constitute the excessive punishment or extreme deprivation prohibited by the Eighth Amendment); Daniel v. Chesney, CIV.A. 1:CV-04-300, 2005 WL 2674543 (M.D. Pa. Oct. 20,2005) (deprivations of privileges including...