14-1597 Edwards v. Erfe 

## 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 A SUMMARY 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 8 thday of January, two thousand fifteen.
PRESENT: GERARD E. LYNCH, DENNY CHIN, Circuit Judges, EDWARD KORMAN 

### , * District Judge.

___________________________________ M.A. Edwards, Plaintiff-Appellant,

v. 14-1597 Erfe, Warden, Corrigan C.I.; Official, Individual, LaJoie, Complex Warden; Official, Individual, Sutherland, Correction Officer; Official and Individual, Lynn Milling, PoP Management; Official, Individual, Iozzia, Correction Officer; Official and Individual, Peck, Correction Officer; Official and Individual, Penn, Captain; Official and Individual, Defendants-Appellees
.

___________________________________ FOR PLAINTIFF-APPELLANT: M.A. Edwards, pro se, Suffield, CT.
FOR DEFENDANTS-APPELLEES: No Appearance

* The Honorable Edward Korman, of the United States District Court for the Eastern District of New York, sitting by designation.Appeal from a judgment and order of the United States District Court for the District of 1 Connecticut (Alfred V. Covello, J.). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3 DECREEDthat the judgment and order of the district court are AFFIRMED

. 4 Appellant M.A. Edwards, proceeding pro se, appeals from the district court = s judgment 5 dismissing his 42 U.S.C. '1983 complaint sua sponte and from the order denying 6 reconsideration of that judgment. We assume the parties’ familiarity with the underlying facts 7 and procedural history. 8 We review a district court’s sua sponte dismissal of a complaint de novo. Sykes v. Bank 9 of Am. , 723 F.3d 399, 403 (2d Cir. 2013). Pro se submissions are generally reviewed with 10 “special solicitude,” and we interpret those submissions to raise the strongest claims suggested. 11 Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam). District 12 courts should not dismiss a pro se complaint without granting leave to amend unless amendment 13 would be futile. See Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000). 14 Edwards first argues that the district court erred in dismissing his due process claim 15 based on his allegation that he was unlawfully deprived of his property. A prisoner may 16 challenge the deprivation of property in a § 1983 action only if the State provides no adequate 17 post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). Connecticut provides 18 inmates with a remedy for lost or destroyed property. Under Connecticut General Statutes § 4- 19 141 et seq. , a person may bring a claim against the State to the Claims Commissioner unless, 20 inter alia , the law establishes another administrative remedy for that claim. Conn. Gen. Stat. 21 § 4-142. An inmate’s property claim may not bebrought directly to the Claims Commissioner 22 because Connecticut Department of Correcti ons (“DOC”) Administrative Directive 9.6(16)(B) 23 establishes an administrative remedy for prisoners aggrieved by property loss or damage. 24 However, if a prisoner exhausts his internal administrative remedy and the DOC’s Lost Property 25 Board (“LPB”) denies his claim, he may thenbring his claim to the Claims Commissioner, see 26

2id. at 9.6(16)(F), who, as relevant here, may order relief or authorize suit, see Conn. Gen. Stat. 1 § 4-158. 2 The district court properly ruled that Edwards’s claim failed because he did not allege 3 that the above process was inadequate. Arguably, the district court should not have dismissed 4 the claim without providing Edwards an opportunity to amend. See Cuoco , 222 F.3d at 112. 5 However, any error is harmless because Edwards’s reconsideration motion sets out what he 6 would have alleged had he been granted the opportunity to amend. See Port Dock & Stone Corp. 7 v. Oldcastle Ne., Inc., 507 F.3d 117, 127 (2d Cir. 2007). In that motion, Edwards argued that the 8 postdeprivation remedy was inadequate because prison staff told him that the LPB required him 9 to prove his ownership with a receipt of purch ase. That allegation does not demonstrate that 10 Edwards lacked an adequate state remedy because, irrespective of the LPB’s methods of 11 reaching its decision, he could seek relief from the Claims Commissioner, whose consideration 12 of the issue would have been independent of the LPB’s decision. Edwards suggests no reason, 13 either in his reconsideration motion or on appeal , why the presentation of his claim to the Claims 14 Commissioner would have been an inadequate remedy if the LPB were to have denied his claim. 15 Edwards also asserts that Connecticut’s housing of sentenced with unsentenced inmates 16 violates his constitutional rights as a sentenced inmate. However, the Fifth Circuit case relied on 17 by Edwards postulates a due process right of pretrial detainees not to be housed indiscriminately 18 with sentenced inmates, not the reverse. See Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir. 19 1981), overruled on other grounds by Int’l Woodworkers of Am. v. Champion Int’l Corp. , 790 20 F.2d 1174 (5th Cir. 1986). Whereas “[d]ue process requires that a pretrial detainee not be 21 punished,” a “sentenced inmate . . . may be punished, although that punishment may not be 22 ‘cruel and unusual’ under the Eighth Amendment.” Bell v. Wolfish , 441 U.S. 520, 535 n.16 23 (1979). Edwards’ claim fails because he alleges no facts indicating that his housing with 24 unsentenced inmates rather than sentenced inmates amounts to cruel and unusual punishment. 25 26

3We need not consider whether Connecticut’s housing practice violates the due process 1 rights of pretrial detainees, because Edwards l acks standing to assert the rights of pretrial 2 detainees. See Ziemba v. Rell , 409 F.3d 553, 555 (2d Cir. 2005). We note, however, that two 3 recent District of Connecticut decisions have held that this practice does not violate a pretrial 4 detainee’s due process rights “absent allegations that the pretrial detainee suffered an injury from 5 being housed with one or more convicted inmates, or that the placement with convicted inmates 6 was intended to punish the pretrial detainee.” Silvera v. Conn. Dep’t of Corr. , 726 F. Supp. 2d 7 183, 197 (D. Conn. 2010); Woodhouse v. Carroll , No. 3:08CV1092 (MRK), 2010 WL 3023888, 8 at *5 (D. Conn. Aug. 2, 2010). 9 Lastly, Edwards contends that his double- bunking with another inmate violates his 10 Eighth Amendment rights. That claim fails because double-bunking is not per se 11 unconstitutional and Edwards has not alleged that the practice has “lead to deprivations of 12 essential food, medical care, or sanitation,” or to other conditions that rise to the level of cruel 13 and unusual punishment. Rhodes v. Chapman , 452 U.S. 337, 344 (1981). 14 We review the denial of a motion for reconsideration for abuse of discretion. Simon v. 15 City of N.Y. , 727 F.3d 167, 171 (2d Cir. 2013). “[R]econsideration will generally be denied 16 unless the moving party can point to controlling decisions or data that the court overlooked17 matters, in other words, that might reasonably be expected to alter the conclusion reached by the 18 court.” Shrader v. CSX Transp., Inc. , 70 F.3d 255, 257 (2d Cir. 1995). Here, the district court 19 properly declined to grant relief because the arguments and allegations raised in the 20 reconsideration motion did not entitled Edwards to relief. 21 Finally, we note that appellees failed to file a brief in this appeal, despite requesting and 22 receiving from this Court an extension of time in which to do so. In fact, since requesting an 23 extension, appellees have made no filing with this Court whatsoever. While an appellee is of 24 course under no obligation to submit a brief, the vi ews of appellees will often be of assistance to 25 the Court, especially in dealing with claims made by uncounseled appellants. Moreover, it is 26

4discourteous to request an extension only to then cease all communication without notifying the 1 Court that the party has decided not to file a brief. 2 We have considered all of Edwards’s remaining arguments and find them to be without 3 merit. Accordingly, we AFFIRM the judgment and order of the district court. 4 5 FOR THE COURT: 6 Catherine O = Hagan Wolfe, Clerk 7 8 9

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