Free Order - District Court of Connecticut - Connecticut

l Case 3:02-cv-01810-AVC Document 36 Fi|ed12/O2/2003 Page1of4 [
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UNITED STATES DISTRICT COURT “ ·* ~I·~~ I
n1sTRJ;cT or CONNECTICUT EQ2?.} [LIC -·-- gg {D I, IB
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CANDIDO TORRES ?MÂ¥i;?URU{;f y
PRISONER c
V. CASE NO. 3:02CVl8l0 (AVC) y
JACK TOKARZ, et al. l
RULING AND ORDER l
_ The plaintiff, currently an inmate at the Cheshire
Correctional Institution in Cheshire, Connecticut, brings this
civil rights action pgp se and in fgrma au eris pursuant to 28 q
U.S.C. § 1915. On November 17, 2003, the plaintiff filed an
amended complaint in this action. The plaintiff alleges that he
is a practitioner of the Santeria religion. Since February 2002, E
he has made a number of requests to purchase beads used for é
prayer and protection and to have a small shrine inside his cell.
He claims that defendants Tokarz, Rodriguez, Gale and Bruno have
denied his requests. He alleges that he is unable to practice
his religion without the beads and the shrine.
The plaintiff alleges that in July 2002, he wrote to E
Assistant Attorney General Strom, who represents the other
defendants in a state habeas petition involving the same claims
as the present action, about the beads and the shrine. The
plaintiff alleges that Attorney Strom did not respond to this
letter and failed to take any action to ensure that his clients
provided him with religious beads. The plaintiff seeks
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injunctive relief and monetary damages.
For the reasons set forth below, the amended complaint is 1
dismissed as to defendant Strom. The case shall proceed as to
defendants Tokarz, Bruno, Gale and Rodriguez. 5 I
The plaintiff has met the requirements of 28 U.S.C.
§ 1915(a) and has been granted leave to proceed in forma pauperis
in this action. Pursuant to 28 U.S.C. § 1915(e)(2)(B), "the .
court shall dismiss the case at any time if the court determines
that . . . the action . . . is frivolous or malicious; . . .
fails to state a claim on which relief may be granted; or . . .
seeks monetary relief against a defendant who is immune from such
relief." 28 U.S.C. § 1915 (e)(2)(B)(i) - (iii).
5 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.’" Nance v. Kelly, 912 F.2d 605,
606 (2d Cir. 1990) (per curiam) (quoting _
Neitzke v. Williams, 490 U.S. 319, 327, 109 1
S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989).
A claim is based on an "indisputably
meritless legal theory" when either the claim
lacks an arguable basis in law, Benitez v.
Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990)
(per curiam), or a dispositive defense
clearly exists on the face of the complaint.
» See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir.
1995).
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.
1998). The courtlconstrues pro sg complaints liberally. See
Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, "when an in U
forma pauperis plaintiff raises a cognizable claim, his complaint E
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Case 3:02-cv-01810-AVC Document 36 Filed 12/O2/2003 Page30f4 I
may not be dismissed ggg sponte for frivolousness under § 1915
(e)(2)(B)(i) even if the complaint fails to ‘flesh out all the
( required details.’" Livingston, 141 F.3d at 437 (quoting Benitez,
907 F.2d at 1295). The court exercises caution in dismissing a I
case under § l915(e) because a claim that the court perceives as I
likely to be unsuccessful is not necessarily frivolous. ggg I
Neitzke v. Williams, 490 U.S. 319, 329 (1989). I
In order to state a claim for relief under § 1983 of the
Civil Rights Act, the plaintiff must satisfy a two—part test. 1
First, the plaintiff must allege facts demonstrating that the
defendant acted under color of state law. Second, he must allege
facts demonstrating that he has been deprived of a I
constitutionally or federally protected right. See Lugar v.
Edmondson Oil Co., 457 U.S. 922, 930 (1982); Washington v. James,
782 F.2d 1134, 1138 (2d Cir. 1986).
The plaintiff’s complaint filed in this action included the
same allegations against Assistant Attorney General Strom. Thus, I
in the amended complaint, the plaintiff is again claiming that
Attorney Strom should be held liable for the conduct of his
clients regarding their decision not to permit him to possess
religious beads or to have a shrine in his cell. On November 7,
2002, the court ruled that Assistant Attorney General Strom had
no supervisory authority over the conduct of the other
individuals named as defendants and could not be held liable for
their actions under the theory of respondeat superior. The court
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dismissed all claims against Assistant Attorney General Strom I
pursuant to 28 U.S.C. l915(e)(2)(B)(i). Because the allegations I
in the amended complaint are identical to the allegations in the ,
complaint, the court again dismisses all claims against Assistant '
Attorney General Strom for the reasons set forth in the court’s I
November 7, 2002 Ruling and Order [doc. # 4]. ,
Conclusion
All claims set forth in the amended complaint against
Assistant Attorney General Steven Strom are DISMISSED. Sgg 28 Z
U.S.C. § l9l5(e)(2)(B)(i). It is certified that any appeal in
forma pauperis from this order would not be taken in good faith
because such an appeal would be frivolous. Sgg 28 U.S.C. § {
l9l5(a).
SO ORDERED.
Dated this @@9 day of OIEG 2003, at Hartford,
Connecticut. I
II H ,.*1 A III
United tates District Judge
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