Riddick v. Semple

17-1681
Riddick v. Semple, et al.

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 12th day of April, two thousand eighteen.

PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROSEMARY S. POOLER,
SUSAN L. CARNEY,
Circuit Judges.
__________________________________________________

Jerome Riddick,

Plaintiff-Appellant,

v. 17-1681

Scott Semple, Commissioner; Henry Falcone, Warden; William
Mulligan; Angel Quiros, District Administrator; Edward Maldonaldo,
Warden; and Derrick Molden, Deputy Warden; all sued in their
individual and official capacities,

Defendants-Appellees.*
__________________________________________________

FOR PLAINTIFF-APPELLANT: Jerome Riddick, pro se, Suffield, CT.

FOR DEFENDANTS-APPELLEES: Robert L. Marconi, Assistant Attorney General,
for George Jepsen, Attorney General, New
Britain, CT.

* The Clerk of Court is directed to amend the official caption to conform with the above.

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 Appeal from an order of the United States District Court for the District of Connecticut

(Underhill, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

Appellant Jerome Riddick, proceeding pro se, appeals from the district court’s dismissal

of his 42 U.S.C. § 1983 action and its denial of his motion for a temporary restraining order

(“TRO”). Riddick sued numerous Department of Correction (“DOC”) officials, raising claims

under the First and Fourteenth Amendments, as well as state law claims of unjust enrichment and

conversion. Riddick argued that defendants violated his First Amendment right to petition the

government and Fourteenth Amendment due process rights by placing grievance restrictions on

him that limited the number of grievances he could file per month; violated his due process rights

by improperly denying claims he filed with the DOC Lost Property Board (“Board”) and charging

him a $25 processing fee for each claim; and were liable under for unjust enrichment and

conversion because of the fees. Riddick also asserted that the Board’s denial of his claims was in

retaliation for previous lawsuits he had filed. In addition, Riddick moved for a TRO to lift the

most recent grievance restriction.

The district court denied the motion for a TRO and dismissed with prejudice all but

Riddick’s retaliation claim; it granted him leave to amend his retaliation claim within 30 days of

its order. After Riddick failed to timely amend his complaint, the district court extended the time

to replead to September 18, 2017. On September 5, 2017, Riddick moved in this Court for a stay

of the district court proceedings pending appeal. We granted the stay after the deadline to replead

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had expired. We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the issues on appeal.

We review a district court’s sua sponte dismissal under 28 U.S.C. § 1915A(b)(1) de novo

and a district court’s decision regarding whether to exercise supplemental jurisdiction for abuse of

discretion. See Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004) (Section 1915A); Lundy v.

Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 118 (2d Cir. 2013) (supplemental

jurisdiction).

We note, as a threshold matter, that we have jurisdiction to review Riddick’s appeal despite

the district court’s grant of leave to amend. Although the dismissal of a complaint with leave to

amend is generally non-final, it may be treated as final if the time to amend has passed. Festa v.

Local 3 Int’l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990) (per curiam). Here, the district

court granted Riddick 30 days from the dismissal of his complaint to amend and subsequently

extended that deadline. While this Court granted Riddick’s motion to stay the district court

proceedings during the pendency of the appeal, this did not suspend the deadline to file an amended

complaint because the order granting the stay did not issue until after the deadline had passed.

Accordingly, we treat the district court’s order as final. See id.

The district court properly dismissed Riddick’s claims regarding the imposition of

grievance restrictions. Riddick’s claim that defendants violated his due process rights by

restricting his access to the prison’s grievance procedures confuses a state-created procedural

entitlement with a constitutional right. However, neither state policies nor “state statutes . . .

create federally protected due process entitlements to specific state-mandated procedures.”

Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2003). Moreover, we cannot find that the

grievance restrictions violated Riddick’s right to petition the government in light of the fact that

the defendants did not restrict his right to file civil actions and the Prison Litigation Reform Act’s

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(“PLRA”) exhaustion requirement would not preclude him from asserting § 1983 claims in federal

court that were barred by grievance restrictions. See 42 U.S.C. § 1997e(a) (requiring prisoners to

exhaust “such administrative remedies as are available” (emphasis added)); Ziemba v. Wezner,

366 F.3d 161, 163–64 (2d Cir. 2004) (per curiam) (holding that the state may be estopped from

asserting exhaustion as an affirmative defense if it has deliberately obstructed access to the

grievance system).

Riddick’s claims regarding the Board were properly dismissed. A prisoner’s due process

rights are not violated by the unauthorized destruction or damage of property by the state, if “the

state makes available a meaningful postdeprivation remedy.” Hudson v. Palmer, 468 U.S. 517,

531 (1984). Connecticut provides inmates with a remedy for lost or destroyed property: a prisoner

can file a claim with the Board, and, if it is denied, subsequently file a claim with the Office of the

Connecticut Claims Commissioner (“Claims Commissioner”), which may order relief or authorize

suit. See Conn. Dep’t Corr. Admin Directive 9.6(16)(B); Conn. Gen. Stat. § 4-142. Riddick’s

complaint did not assert that filing a claim with the Claims Commissioner was an inadequate

remedy for his lost property claim and thus failed to allege a violation of his due process rights.

On appeal, Riddick argues that pursuing a claim with the Claims Commissioner is an

inadequate remedy because it only applies to negligent conduct. This claim is meritless because it

ignores alternative common-law remedies. In Hudson, the Supreme Court held that a prisoner’s

due process rights are not violated where adequate common-law remedies exist. 468 U.S. at 534–

35. Here, the Claims Commissioner lacks jurisdiction over intentional torts because they are

“claims upon which suit otherwise is authorized by law.” Conn. Gen. Stat. § 4-142(a)(2).

Connecticut law provides that state employees may be sued as individuals for intentional torts.

See Miller v. Egan, 828 A.2d 549, 562 (Conn. 2003) (“State employees do not, however, have

statutory immunity for wanton, reckless or malicious actions . . . . For those actions, they may be

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held personally liable, and a plaintiff who has been injured by such actions is free to bring an action

against the individual employee.”). Riddick thus has an available remedy for any intentional tort

claim that could not be reviewed by the Claims Commissioner—a lawsuit against the individual

employees.

Additionally, Riddick’s claim that the $25 processing fee violates his due process rights

and right to petition the government is meritless. Indigent persons generally do not have a

constitutional right to proceed in forma pauperis, except in a narrow class of cases involving

certain fundamental rights such as the termination of parental rights or divorce. M.L.B. v. S.L.J.,

519 U.S. 102, 113, 120 (1996); United States v. Kras, 409 U.S. 434, 450 (1973) (recognizing that

there is no “unlimited rule that an indigent at all times and in all cases has the right to relief without

the payment of fees”). Applying this principle, this Court has concluded that the PLRA’s filing

fee provisions do not “unconstintutionally impinge [prisoners’] right of access to the courts.”

Nicholas v. Tucker, 114 F.3d 17, 20 (2d Cir. 1997). This conclusion applies with equal force to

claims filed with the Board. In addition, Riddick cannot sustain an as-applied challenge. As the

district court observed, Administrative Directive 9.6 authorizes the Board to waive the fee for good

cause or to place an obligation on the inmate’s trust fund account. See Conn. Dep’t Corr. Admin.

Directive 9.6(16)(D). Riddick does not assert that he lacks funds, much less that he requested a

waiver or an obligation. To the contrary, he appears to have paid the fee. As in Nicholas,

“[r]equiring prisoners to make economic decisions” about pursuing grievances does not violate

due process; “it merely places the . . . prisoner in a position similar to that” faced by ordinary

litigants. 114 F.3d at 21 (internal quotation marks omitted).

The remainder of Riddick’s claims were either properly dismissed or not challenged on

appeal. His conclusory retaliation claim failed to allege facts suggesting that his prior lawsuits

were “substantial or motivating factor[s]” for the denial of his lost property claims. See Bennett

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v. Goord, 343 F.3d 133, 137 (2d Cir. 2003); see also Graham v. Henderson, 89 F.3d 75, 79 (2d

Cir. 1996) (“A complaint of retaliation that is wholly conclusory can be dismissed on the pleadings

alone.” (internal quotation marks omitted)). The district court did not abuse its discretion by

declining to exercise supplemental jurisdiction over Riddick’s state law claims because it had

previously dismissed his federal claims. See, e.g., Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,

350 n.7 (1988). Riddick does not challenge the district court’s denial of his TRO and has thus

abandoned that issue. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995).

Finally, we conclude that the district court did not abuse its discretion by dismissing all but

Riddick’s retaliation claim without leave to amend. Generally, a district court should not dismiss

a pro se complaint without permitting at least one opportunity to amend, but granting leave to

amend is not necessary when it would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d

Cir. 2000). Here, Riddick’s claims had substantive flaws that would not benefit from repleading,

and he failed to replead the retaliation claim even after district court extended the deadline to file

an amended complaint.

We have considered Riddick’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the order of the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

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