13-1738
Saunders v. Vinton

                     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 “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
30th day of January, two thousand fourteen.

PRESENT:
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                  Circuit Judges,
            MARGO K. BRODIE,*
                  District Judge.
_____________________________________

RANDALL SAUNDERS,

                      Plaintiff-Appellant,

               v.                                                   13-1738

BLAIR VINTON, NEVA LLOYD, HECTOR RIVERA,

                  Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                             Randall Saunders, pro se, Brooklyn, CT.




       *
      Judge Margo K. Brodie, of the United States District Court for the Eastern District of
New York, sitting by designation.
FOR DEFENDANTS-APPELLEES:                             Steven R. Strom, Assistant Attorney
                                                      General, for George Jepsen, Attorney
                                                      General, Hartford, CT.

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

Connecticut (Shea, J.).

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

DECREED that the judgment is AFFIRMED.

        Appellant Randall Saunders, pro se and incarcerated, brought an action under 42 U.S.C.

§§ 1983, 1985(2), and 1986 against Enfield Correctional Institution (“Enfield”) employees

Captain Blair Vinton, Lieutenant Neva Lloyd, and Correctional Officer Hector Rivera, alleging

that they conspired and retaliated against him as well as interfered with his legal mail in

violation of his right of access to the courts. Saunders appeals from the district court’s order

granting summary judgment to the defendants on his access to the courts claims, and sua sponte

dismissing his retaliation and conspiracy claims under 28 U.S.C. § 1915(e)(2)(B)(ii). Saunders

also moves for sanctions against appellees’ counsel, arising out of counsel’s failure to properly

redact an exhibit containing the home addressees of Saunders’s visitors at Enfield, as directed by

the district court.

        We review orders granting summary judgment de novo and focus on whether the district

court properly concluded that “there are no genuine issues of material fact and that the moving

party [was] entitled to judgment as a matter of law.” Miller v. Wolpoff & Abramson, LLP, 321

F.3d 292, 300 (2d Cir. 2003). We are “required to resolve all ambiguities and draw all factual

inferences in favor of the [non-movant]. The inferences to be drawn from the underlying

affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most


                                                 2
favorable to the [non-moving] party.” Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, 182

F.3d 157, 160 (2d Cir. 1999) (internal quotation marks omitted). Summary judgment is

appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).

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

§ 1915(e).” Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). The complaint must plead

“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Although all allegations contained in the complaint are

assumed to be true, this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). A claim will have “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 alleged.” Id. District courts should generally not dismiss a pro se complaint without

granting the plaintiff at least one opportunity to amend “when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112

(2d Cir. 2000). Leave to amend is not necessary, however, when it would be futile. See id.

          The district court properly granted summary judgment to the defendants on Saunders’s

access to the courts claim. Saunders’s argument on appeal that his former attorney, Martin

Zeldis, confirmed that documents were missing from his box of legal files fails. In the letter

from Zeldis that Saunders refers to, Zeldis stated that he had been advised that the file had been

given “in its entirety” to Saunders, but that Saunders had told him that it appeared to have been




                                                  3
tampered with. Thus, contrary to Saunders’s assertion, Zeldis did not confirm that documents

were missing from the file.

       The district court did not err in sua sponte dismissing Saunders’s §§ 1985(2), 1986, and

retaliation claims for failure to state a claim. Arguably, the district court could have granted

Saunders leave to amend before dismissing his claim under the second section of § 1985(2)

prohibiting conspiracies to impede or obstruct justice in state court. Saunders’s argument on

appeal that he intended to argue that he, as a prisoner, was a member of a protected class,

however, reveals that such amendment would have been futile. We have never held that

prisoners constitute a protected class, and other circuits have explicitly held that they do not.

See, e.g., Boivin v. Black, 225 F.3d 36, 42 (1st Cir. 2000) (holding that “prisoners simply are not

a suspect class” and collecting cases from other circuits). Accordingly, leave to amend was not

necessary. Cuoco, 222 F.3d at 112.

       Saunders’s argument that the district court failed to address the claim in his complaint

that the defendants retaliated against him by obstructing a January 2012 grievance filing is

similarly unavailing. In his complaint, Saunders alleged that he attempted to file a grievance a

few days after his missing box of legal files was discovered; a few days after that, he was

informed that his grievance had been sent to the wrong facility and that he had completed the

form incorrectly. He alleged that he then “dictated his grievance over the phone to his power of

attorney and had a copy sent to commissioner of correction with a copy to the warden . . . [and]

the deputy warden maintained he [would] investigate to resolution.” While the district court did

not address this allegation, it presumably failed to do so because Saunders’s complaint did not

make clear that this was intended to be an allegation of retaliation. In any event, Saunders


                                                  4
alleged that he immediately re-filed the grievance. Thus, any retaliation claim arising from this

set of facts would have failed, as the conduct did not deter him from continuing to file

grievances. See Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (“[W]e have previously

defined ‘adverse action’ objectively, as retaliatory conduct ‘that would deter a similarly situated

individual of ordinary firmness from exercising . . . constitutional rights.’”).

       Finally, we DENY Saunders’s motion for sanctions. Under Fed. R. App. P. 46(c), this

Court may discipline an attorney “for failure to comply with any court rule.” Saunders contends

that appellees’ counsel filed in this Court an exhibit containing not only the addresses of

Saunders’s visitors (which the district court had directed be redacted), but also the full name of a

minor child in violation of Fed. R. App. P. 25(a)(5) and Fed. R. Civ. P. 5.2(a)(3). This Court’s

Clerk’s Office has since sealed appellees’ appendix and directed counsel to file a new appendix,

redacting the information identified by the district court. Appellees’ counsel complied with this

order and submitted a corrected and redacted appendix on December 23, 2013. Additionally, in

responding to the district court’s December 17, 2013 Order to show cause for his failure to

comply with the order to redact, counsel for appellees indicated that no minor was involved, as

the individual in question was listed as being 18 years old, and that although counsel had

repeatedly sought to comply with the order, the redacted document was filed under seal and the

unredacted version remained on the public docket. Appellees’ counsel in a separate filing also

informed the district court that the inclusion of the street address in publicly filed documents was

unintentional and an error. Counsel apologized for this mistake. Upon review of the appellate

record, counsel’s failure to comply with court rules, if there was such failure, appears to be

unintentional. We, therefore, deny Saunders’s motion for sanctions. We leave it to the district


                                                  5
court’s discretion to decide whether counsel violated its rules or orders and whether sanctions

are appropriate in the district court.

        We have considered all of Saunders’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court and DENY the motion for

sanctions.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




                                                6
