Sosa v. Lantz, Civil No. 3:09cv869 (JBA).

• Decision Date: 02 September 2009
• Docket Number: Civil No. 3:09cv869 (JBA).
• Citation: 660 F.Supp.2d 283
• Parties: Andres R. SOSA, Plaintiff, v. Theresa LANTZ, Defendant.
• Court: U.S. District Court — District of Connecticut

660 F.Supp.2d 283

Andres R. SOSA, Plaintiff, v. Theresa LANTZ, Defendant.

Civil No. 3:09cv869 (JBA).

United States District Court, D. Connecticut.

September 2, 2009.

COPYRIGHT MATERIAL OMITTED

Andres R. Sosa, Newtown, CT, pro se.

INITIAL REVIEW ORDER AND ORDER DENYING PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER

JANET BOND ARTERTON, District Judge.

Plaintiff Andres R. Sosa, currently incarcerated at MacDougall-Walker Correctional Institution in Suffield, Connecticut, has filed this action pro se under 42 U.S.C. § 1983 and a number of other statutes. In the case caption of his Complaint he lists as defendants Commissioner of Correction Theresa Lantz "et al.," but in the body of the Complaint Plaintiff lists two additional defendants—Governor M. Jodi Rell and State Senate Judiciary Committee Chairman Andrew J. McDonald.

Plaintiff alleges that he has been denied a single cell for many years despite his statements to mental health staff that he will kill his cellmate if he is required to share a cell. He contends that his Eighth and Fourteenth Amendment rights have been violated by being forced to share a cell with another inmate because the cell is too small for two persons and does not include sufficient furnishings for two persons. Plaintiff also includes allegations regarding conditions of confinement, overcrowding and retaliatory transfer. Finally, Plaintiff alleges that the defendants have "forc[ed] [him] to double cell with a Muslim and cho[sen] not to assign me or them to different cells," thus "forc[ing] [him] to participate and support the Muslim religion because [he] ha[s] to hear [his] cell-mate[]s pray out loud to their Muslim god five times a day [e]specially at 5:30 a.m. in [the][A]rabic language" and "act[ing] in favor of a particular religion (Muslim)" in violation of the First Amendment.

In his Complaint, Plaintiff seeks damages as well as declaratory and injunctive relief. Plaintiff has also filed a motion for a temporary restraining order and preliminary injunction seeking the same relief. (See Mot. TRO & Prelim. Inj. [Doc. # 6].)

Plaintiff states that he brings this action pursuant to the following statutes: 5 U.S.C. § 701(a)(2); 5 U.S.C. § 706; 18 U.S.C. § 241; 18 U.S.C. § 242; 18 U.S.C. § 3006A(g); 18 U.S.C. § 3626; 18 U.S.C. § 4042; 18 U.S.C. § 4081; 28 U.S.C. § 1331; 28 U.S.C. § 1331(A); 28 U.S.C. § 1342(A)(3); 28 U.S.C. § 1343, 1343(a)(3), 1343(3); 28 U.S.C. § 1915(d); 28 U.S.C. § 1988; 28 U.S.C. §§ 2201-2202; 42 U.S.C. § 1983; 42 U.S.C. § 1985, 1985(2), 1985(3); 42 U.S.C. § 1986; 42 U.S.C. § 1988(b); 42 U.S.C. § 1997(a)-(c) and §§ 1997 et seq. (the Civil Rights of Institutionalized Persons Act, Pub.L. 96-247, 94 Stat. 349, as amended); 42 U.S.C. § 2000h; 42 U.S.C. § 2000bb; and Conn. Gen. Stat. § 18-87 et seq.

I. Initial Review Order

A. Standards

This Court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," 28 U.S.C. § 1915A(a), and must dismiss "any portion of the complaint" that "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief," id. § 1915A(b). The Second Circuit has explained the term "frivolous" thus:

An action is "frivolous" when either: (1) "the `factual contentions are clearly baseless,' such as when allegations are the product of delusion or fantasy;" or (2) "the claim is `based on an indisputably meritless legal theory.'" A claim is based on an "indisputably meritless legal theory" when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998) (citations omitted) (discussing terms as applied in 28 U.S.C. § 1915(e)(2)(B)(1), which requires dismissal of in forma pauperis actions that are "frivolous or malicious").

When reviewing a pro se complaint the Court assumes the truth of the allegations and interprets the complaint liberally "to raise the strongest arguments it suggests." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007). Although detailed allegations are not required, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Even under this plausibility standard, however, "[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotations omitted).¹ Moreover, the Second Circuit has "frequently reiterated that `[s]ua sponte dismissal of pro se prisoner petitions which contain nonfrivolous claims without requiring service upon respondents or granting leave to amend is disfavored,'" a rule that "stems in part from the limited legal knowledge and resources available to pro se plaintiffs, which may hamper their ability to articulate potentially valid claims in legally cognizable language." McEachin v. McGuinnis, 357 F.3d 197, 200-01 (2d Cir.2004) (citation omitted).

B. Claims Without Arguable Basis in Law

As discussed below, the Court concludes that Plaintiff's constitutional claims against Commissioner Lantz survive initial review, but his claims against Governor Rell and Senator McDonald must be dismissed, and that he has not shown entitlement at this juncture to a temporary restraining order or preliminary injunction.

Most of the statutes Plaintiff invokes do not provide a private right of action and many are irrelevant to his claims. Sections 701 and 706 of title 5 deal with federal agencies and judicial review, but no federal agency action is implicated by Plaintiff's allegations. Thus, his claims under these statutes clearly "lack[] an arguable basis in law" and must be dismissed under 28 U.S.C. § 1915A.

Title 18 contains federal criminal statutes,² which provide no basis for Mr. Sosa's claims because private persons cannot institute criminal prosecutions in the United States,³ Mr. Sosa is a state prisoner confined in state, not federal Bureau of Prisons custody, this is neither a habeas corpus petition nor a criminal prosecution to which § 3006A could apply, and the injunctive relief to which Mr. Sosa may be entitled provides no source of rights nor a private right of action. Since these statutes provide no basis for Mr. Sosa's action, his claims under these sections of Title 18 similarly "lack[ ] an arguable basis in law" and are dismissed under 28 U.S.C. § 1915A.

There is also no "arguable basis in law" for Mr. Sosa's reliance on a number of other statutes. 28 U.S.C. §§ 1331(A), 1342(A)(3), and § 1343(3) do not exist. As to other sections of title 28, Plaintiff cites two statutes that confer subject-matter jurisdiction on federal district courts— § 1331 provides district courts with subject-matter jurisdiction over claims arising under federal law, and § 1343 provides district courts with "original jurisdiction of any civil action authorized by law to be commenced by any person" seeking vindication of federal civil rights or voting rights—but provide no substantive rights. Section 1342, which limits district courts' power to enjoin the "[r]ate orders of State agencies," is irrelevant to Mr. Sosa's action. And section 1915(d) provides that "[t]he officers of the court shall issue and serve all process, and perform all duties in" in forma pauperis cases and specifies the individuals responsible for serving process in this action, but provides no substantive rights or private rights of action. For these reasons, Plaintiff's claims under 28 U.S.C. §§ 1331, 1331(A), 1342, 1342(A)(3), 1343, 1343(3), 1343(a)(3), and 1915(d) have no "arguable basis in law" and are dismissed pursuant to 28 U.S.C. § 1915A.

Plaintiff's claims under a number of other statutes have no legal merit. He asserts a claim under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq., but RFRA was held unconstitutional as applied to the states for exceeding Congress's power under § 5 of the Fourteenth Amendment. See City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Second, 42 U.S.C. § 2000h, which entitles "the accused" "to a trial by jury" in certain "proceeding for criminal contempt," is irrelevant to any claim Mr. Sosa asserts. Mr. Sosa's claims under both of these statutes are dismissed pursuant to 28 U.S.C. § 1915A.

Plaintiff also invokes 42 U.S.C. §§ 1997(a)-(c) and 1997 et seq. Section 1997 sets out definitions and does not have subsections (a), (b) or (c). Moreover, these statutes—42 U.S.C. §§ 1997-1997j—permit the U.S. Attorney General to bring suit for constitutional deprivations to state prisoners where "such deprivation is pursuant to a pattern or practice," § 1997a(a), and to intervene in individual lawsuits where he or she has "reasonable cause to believe" that the "egregious or flagrant" conditions at issue in the suit "is pursuant to a pattern or practice," § 1997c(a)(1), and while it does not preclude "[s]uit[s] by prisoners," it conditions such suits on the exhaustion of administrative remedies, permits sua sponte dismissal of claims in the same circumstances as 28 U.S.C. § 1915A, and provides prisoners no substantive rights, see § 1997e.⁴ Therefore, Plai...