Wright v. Semple

16-4143
Wright v. Semple

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States Courthouse,
40 Foley Square, in the City of New York, on the 29th day of August, two
thousand seventeen.

PRESENT:
ROBERT D. SACK,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_________________________________________

IAN WRIGHT,

Plaintiff-Appellant,

KYLE BAINES, DARRELL ATKINSON, DONOLD
RAYNOR, ANTHONY COWARD, TERRY COLLINS,
OREMA TAFT, MASHAWN GREEN, ANDRE CIN-
ICOLA, CURBIT MCCULLOUGH, MOISES PO-
LANCO, BILL HENDERSON, TROY LITTLE, RAN-
DALL BROWN, BRUCE KING, ALEXANDER
TORRES, RASHAWN ROBSINSON, QUAN SOYINI,
QUINCY RAPP, EXODUS COOKE, MARQUIS
JACKSON, TAYLOR SOLOMON, ALEJANDRO
HERNANDEZ, CHEYENNE CANCEPUON, JESUS
ORTIZ, ERIC AMADO, MATHEW BOUTILIER,
JORDAN B., MARK R., S. BODAMER, W. RODNEY,
ANTHONY BRUNETTI, MARK M., SMITH G.,
ROCKY WILLIAMS, RASHEED JOHNSON, JAHAD
M. HARVEY, JASON MILLER, JORGE LUGO,

Plaintiffs,

v. 16-4143

SCOTT SEMPLE, HE IS SUED IN HIS OFFICIAL
CAPACITY, HENRY FALCONE, HE IS SUED IN
HIS OFFICIAL CAPACITY, ERIKA TINDILL, SHE
IS SUED IN HER OFFICIAL CAPACITY, DAVID D.
EGAN, HE IS SUED IN HIS OFFICIAL CAPACITY,
JOHN DOE, DISTRICT ADMINISTRATOR, HE IS
SUED IN HIS OFFICIAL CAPACITY, JOHN DOE,
DIVISON ADMINISTRATOR, HE IS SUED IN HIS
OFFICIAL CAPACITY, J. CARLETON GILES,
DANNEL P. MOLLOY, HE IS SUED IN HIS OFFICIAL
CAPACITY,

Defendants-Appellees.
_________________________________________

For Plaintiff-Appellant: Ian Wright, pro se, Cheshire, CT.

For Defendants-Appellees: No brief.

Appeal from a judgment of the United States District Court for the District of

Connecticut (Underhill, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, AD-

JUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Appellant Ian Wright, a prisoner proceeding pro se, appeals from a judgment

dismissing sua sponte his suit brought under 42 U.S.C. § 1983. We assume the par-

ties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

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 We review de novo a district court’s sua sponte dismissal under 28 U.S.C.

§ 1915A. Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003) (per curiam). To avoid

dismissal, a 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). “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 al-

leged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We afford a pro se litigant “special

solicitude” by interpreting a complaint filed pro se “to raise the strongest claims that

it suggests.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal alterations

and quotation marks omitted). Wright raises four issues on appeal.

First, Wright argues that the implementation of Connecticut’s risk reduction

earned credit (“RREC”) program, which required him to either attend prison pro-

grams he did not wish to attend or face disciplinary proceedings, amounts to a ret-

roactive increase in punishment in violation of the Constitution’s prohibition on ex

post facto laws. The ex post facto clauses prohibit laws that “retroactively alter the

definition of crimes or increase the punishment for criminal acts.” Collins v.

Youngblood, 497 U.S. 37, 43 (1990). Here, assuming the directives Wright challenges

are susceptible to ex post facto challenges, the directives on their face are regulatory,

not punitive, in nature. See Smith v. Doe, 538 U.S. 84, 103 (2003) (“The Ex Post Facto

Clause does not preclude a State from making reasonable categorical judgments that

conviction of specified crimes should entail particular regulatory consequences.”).

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And any punitive effect of the directives, i.e., Wright being required to participate in

certain prison programs, was “innocuous” and not of “sufficient moment” to consti-

tute an ex post facto violation. See Lee v. Governor of the State of New York, 87 F.3d

55, 59 (2d Cir. 1996). Further, any disciplinary charges Wright might face for failing

to participate would be punishment for a new infraction, not an increase in pun-

ishment for his underlying conviction.

Second, Wright argues that he adequately alleged that defendants denied him

due process by not affording him a deportation parole hearing. However, according to

his own complaint, he was not yet eligible for such a hearing. And he points to no

requirement that he be informed in advance of the procedures for requesting a

hearing.

Third, Wright argues that he adequately pleaded that the RREC program

denies him equal protection because prisoners convicted of the same crime as he was

before 1981, when Connecticut changed the law to deny parole eligibility to indi-

viduals with such convictions, would be eligible for RREC, whereas he is not. How-

ever, unlike parole the RREC statute does not differentiate between pre- and

post-1981 offenders. See Conn. Gen. Stat. § 18-98e(a).

Finally, Wright argues that the district court erred by dismissing his pro se

complaint with prejudice without granting him an opportunity to amend. In this

Circuit, pro se complaints should not be dismissed by the district court without

granting leave to amend at least once when a liberal reading of the complaint gives

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“any indication” that a valid claim might be stated. Shomo v. City of New York, 579

F.3d 176, 183 (2d Cir. 2009). However, a district court need not grant leave to amend

when amendment would be “futile.” See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112

(2d Cir. 2000). Here, Wright’s first amended complaint simply removed additional

putative plaintiffs, and his second amended complaint only corrected the caption to

include the names of all the defendants. We conclude, however, that any error was

harmless. The deficiency in Wright’s complaint was not a lack of adequate factual

allegations but rather a lack of entitlement to the relief sought. Accordingly, granting

leave to amend would have been futile.

We have considered Wright’s remaining arguments and conclude them to be

without merit. Accordingly, we AFFIRM the district court’s judgment.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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