Velasquez v. Martin
| Decision Date | 01 March 2023 |
| Docket Number | C. A. 21-352 WES |
| Parties | ARIEL O. VELASQUEZ, Plaintiff, v. WARDEN DANIEL MARTIN et al., Defendants. |
| Court | U.S. District Court — District of Rhode Island |
Before the Court is a Motion for Judgment on the Pleadings, ECF No 22, filed by seven Defendants, and pro se Plaintiff Ariel Velasquez's Motion to Appoint Counsel, ECF No. 23. In this case, Plaintiff asserts five claims against Warden Daniel Martin and eight other employees of the Donald W Wyatt Detention Facility (“Wyatt”) in Central Falls, Rhode Island, arising out of an alleged instance of discrimination on the basis of religion. He alleges violations of 42 U.S.C. §§ 1983, 1985, and 1986 the Religious Land Use and Institutional Persons Act of 2000 (“RLUIPA”), and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The claims against Warden Martin have been dismissed. Text Order, July 1, 2022. Now, seven of the eight remaining Defendants have moved for judgment on the pleadings. For the reasons that follow, Defendants' Motion for Judgment on the Pleadings, ECF No. 22, is GRANTED as to Count I of the Complaint as to Defendants Damasco, Nessinger, Kropman, Cepeda, Santos, and Williams, and DENIED as to Defendant Gomes. Further, Defendants' motion is GRANTED as to Counts II, III, IV, and V of the Complaint as to all seven moving Defendants. Finally, Plaintiff's Motion to Appoint Counsel, ECF No. 23, is DENIED without prejudice.
Plaintiff, a detainee at Wyatt, is a practicing Muslim. Compl. ¶¶ 1, 11. While incarcerated, he assisted another detainee at Wyatt in converting to Islam, signing up for Muslim services, and changing his religion in the Wyatt records. Id. at ¶ 12. Sometime after, Defendant Michael Kropman, a Christian pastor, called the detainee into a meeting and, with Defendant Nicole Cepeda, a counselor at the Wyatt, acting as translator, made negative comments about his conversion. Id. at ¶¶ 10, 13-15.
After the meeting, the detainee asked Plaintiff for assistance in filing a complaint because he felt that he had been harassed. Id. at ¶ 16. Plaintiff filed an informal grievance on the detainee's behalf and requested a meeting with Kropman and Defendant Kristen Damasco, the Programs Director at Wyatt. Id. at ¶ 17.
Within hours of Plaintiff filing the grievance, Defendants Joseph Williams and Antonio Santos informed him that he was under investigation, for the duration of which he would be placed in restrictive housing. Id. at ¶¶ 18-22. Williams and Santos further informed Plaintiff that the decision to place him in restrictive housing was made by Defendant Mark Gentile, a U.S. Marshal Monitor at the Wyatt. Id. at ¶¶ 8, 21. Defendant Stephen Gomes approved the administrative detention placement order. Id. at ¶ 23.
When Plaintiff arrived at restrictive housing, he contacted Martin and Damasco and informed them that he was experiencing discrimination, harassment, and retaliation. Id. at ¶¶ 24-25. Martin and Damasco took no action other than to inform Plaintiff that an investigation was being conducted. Id. at ¶ 26.
After about a week in restrictive housing, Martin informed Plaintiff that the investigation showed no rule, policy, legal, regulatory, or statutory violations by Plaintiff, and he was released from restrictive housing. Id. at ¶ 28. Plaintiff filed a grievance, which was denied by Defendant Michael Nessinger, the Wyatt's chief of security, at the initial level and by Martin on appeal. Id. at ¶¶ 30-31.
Plaintiff filed this action in August 2021 alleging that all Defendants violated 42 U.S.C. §§ 1983, 1985, 1986, RLUIPA, and Bivens. See Compl. ¶¶ 33-39. In December 2021, Warden Martin moved to dismiss. See ECF No. 11. The Court granted the motion, concluding that Plaintiff had failed to state a claim against Martin. See Text Order, July 1, 2022. Upon prompting from the Court, seven of the eight remaining defendants filed answers, see ECF Nos. 19, 21, and subsequently filed the present motion for judgment on the pleadings, see ECF No. 22. Plaintiff did not file a response to the motion but filed a motion to appoint counsel shortly thereafter. See ECF No. 23.
The standard of review for a motion for judgment on the pleadings filed under Rule 12(c) is the same as the standard for a Rule 12(b)(6) motion: the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (); see Doe v. Brown Univ., 896 F.3d 127, 130 (1st Cir. 2018) (). The Court “take[s] the well-pleaded facts and the reasonable inferences therefrom in the light most favorable to the nonmovant.” Doe, 896 F.3d at 130 ). Given Plaintiff's pro se status, the Court reads the Complaint liberally. Rodi v. So. New Eng. Sch. Law, 389 F.3d 5, 13 (1st Cir. 2004).
To survive a motion to dismiss or a motion for judgment on the pleadings on a § 1983 retaliation claim, a plaintiff must assert facts demonstrating that “[(1)] he engaged in a protected activity, [(2)] that the [defendant(s)] took an adverse action against him, and that [(3)] there is a causal link between the former and the latter.” Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). “An action is considered adverse for retaliation purposes if it would deter a person of ordinary firmness from the exercise of a right at stake.” Grossman v. Martin, 566 F.Supp.3d 136, 144 (D.R.I. 2021) (quoting Price v. Wall, 464 F.Supp.2d 90, 97 (D.R.I. 2006)). Plaintiff has sufficiently alleged that he engaged in a protected activity for purposes of a retaliation claim -- filing a grievance on behalf of his fellow detainee, see Price, 464 F.Supp.2d at 96-97 -- which Defendants do not dispute, see Defs.' Mot. J. Pleadings 4 ( ), ECF No. 22.[1]
Plaintiff's claims against Defendants Damasco, Nessinger, Kropman, and Cepeda fail on the second prong. Plaintiff alleges that Damasco did nothing after Plaintiff informed her that he was experiencing harassment and retaliation, Compl. ¶¶ 25-26, and that Nessinger denied his grievance on appeal, id. at ¶ 30. Against Defendants Kropman and Cepeda, he alleges only that Kropman made negative comments to Plaintiff's fellow detainee concerning his conversion to Islam and that Cepeda acted as translator for the conversation. Id. at ¶¶ 13-15. None of these alleged acts constitute “adverse action” taken against Plaintiff sufficient to support a claim under § 1983. See Hannon, 645 F.3d at 48.
Further, although Plaintiff alleges that Defendant Nessinger is responsible for “overseeing the entire jail as well as its investigations and is responsible for knowing all policies regarding security,” Compl. ¶ 27, he has not stated a claim for supervisory liability against Nessinger because he has not alleged “an affirmative link between the abridgment [of his constitutional rights by another defendant] and some action or inaction on the supervisor's part.” Parker v. Landry, 935 F.3d 9, 14-15 (1st Cir. 2019) ().
Plaintiff alleges that Defendants Santos and Williams informed Plaintiff about the investigation and told him that he would be placed in restrictive housing while the investigation was ongoing. Compl. ¶¶ 19-21. He does not, however, allege that either of these Defendants were involved in the making of this decision, and in fact specifically attributes the decision to Defendant Gentile. See id. at ¶ 21. He also does not allege that these Defendants took any affirmative steps to place him in restrictive housing, other than communicating the decision to him. See id. at ¶ 19-21. Plaintiff has therefore failed to state a § 1983 claim against Defendants Santos and Williams.
Plaintiff alleges that Gomes approved the administrative detention order placing Plaintiff in restrictive housing. Compl. ¶ 23. Placement in restrictive housing “would deter a person of ordinary firmness from the exercise of a right,” in this case, filing a grievance. Grossman, 566 F.Supp.3d at 144 (quoting Price, 464 F.Supp.2d at 97). It is reasonable to infer from Plaintiff's allegations that approval of the placement order by Defendant Gomes was a necessary step in his placement in restrictive housing and that, therefore, the approval itself constitutes an adverse action. As to the third prong, “a chronology of events” may suffice to “support . . . an inference of retaliation.” McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979). Here, the chronology of Plaintiff's allegations, specifically that he was placed in restrictive housing just hours after filing the grievance, Compl. ¶¶ 18-22, suffices to establish a causal connection between the protected activity and the adverse action. See McDonald, 610 F.2d at 18.
Defendant Gomes relies on Knox v. Butler, No. 17-cv-00092- DRH, 2017 WL 476925 (S.D. Ill. Feb. 6, 2017) to support his claim that Plaintiff has failed to connect the alleged retaliatory conduct with Defendant Gomes. Defs.' Mot. 6. In Knox, the plaintiff alleged that the decision to transfer him to a more restrictive cell in retaliation for filing grievances “came from a ‘higher authority,'” and not from one of the named defendants. Knox, 2017 WL 476925, at *4. Because the plaintiff “fail[ed] to connect the retaliation with any particular defendant,” the court...
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