Cordero v. Semple , 696 F. App'x 44 ( 2017 )

16-4197-cv
Cordero 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 “summary order”). A party citing 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 23rd day of August, two thousand seventeen.
PRESENT: JOHN M. WALKER, JR.,
JOSÉ A. CABRANES,
REENA RAGGI,
Circuit Judges.
JOSÉ LUIS CORDERO,
Plaintiff-Appellant, 16-4197-cv
v.
SCOTT SEMPLE, COMMISSIONER, SCOTT ERFFY,
WARDEN, STATE-PRISON, AVERY, CORRECTION
OFFICER, MCCAULEY, CORRECTION OFFICER,
Defendants-Appellees.
FOR PLAINTIFF-APPELLANT: José Luis Cordero, pro se, Cheshire, CT
FOR DEFENDANTS-APPELLEES: No appearance
Appeal from a judgment of the United States District Court for the District of Connecticut
(Vanessa L. Bryant, Judge).
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the December 12, 2016 judgment of the District Court be
and hereby is AFFIRMED.
Plaintiff-appellant José Luis Cordero, proceeding pro se, appeals the District Court’s sua sponte
dismissal of his claims against defendants-appellees, officials at the Cheshire Correctional Institution
(“CCI”). Cordero brought claims under 42 U.S.C. § 1983 (“Section 1983”), the First, Fifth, Eighth,
and Fourteenth Amendments to the United States Constitution, the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq., and the Connecticut Constitution.1 The District Court dismissed
the federal causes of action for failure to state a claim, and declined to exercise supplemental
jurisdiction over the state causes of action. Cordero appeals only the District Court’s dismissal of his
claims under Section 1983, the Eighth and Fourteenth Amendments to the United States
Constitution, and the ADA, and abandons any challenges to the dismissal of the other claims.
See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995). We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.
We review the sua sponte dismissal of a complaint de novo. McEachin v. McGuinnis, 357 F.3d
197, 200 (2d Cir. 2004). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Carlin v. Davidson Fink
LLP, 852 F.3d 207, 212 (2d Cir. 2017) (internal quotation marks omitted). Pro se submissions are
reviewed with “special solicitude,” and “must be construed liberally and interpreted to raise the
strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–75 (2d
Cir. 2006) (internal quotation marks and emphasis omitted).
Upon such review, we conclude that the District Court properly dismissed Cordero’s Section
1983 and Eighth Amendment conditions-of-confinement claim based on his placement in a double
cell. Double-celling is not per se unconstitutional, see Bell v. Wolfish, 441 U.S. 520, 542 (1979)
(Rehnquist, J.) (“We disagree with both the District Court and the Court of Appeals that there is
some sort of ‘one man, one cell’ principle lurking in the Due Process Clause of the Fifth
Amendment.”), and Cordero failed to allege any consequences of double-celling such as
“deprivations of essential food, medical care, or sanitation” or “increase[d] violence among inmates”
that might constitute the deprivation of a constitutional right, see Rhodes v. Chapman, 452 U.S. 337,
347–48 (1981). Accordingly, Cordero did not establish a prima facie case under Section 1983 and the
Eighth Amendment.
1
As permitted by statute, the District Court dismissed these claims prior to service on the
defendants. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A. Nonetheless, we have appellate jurisdiction over
an appeal on the sua sponte dismissal. See McEachin v. McGuinnis, 357 F.3d 197, 200–01 (2d Cir. 2004).
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We likewise conclude that the District Court correctly dismissed Cordero’s ADA claim. Title
II of the ADA provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132;
see also Wright v. N.Y. State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016). Assuming arguendo that his
HIV-status and mental disorders qualify as disabilities under the ADA, Cordero did not allege that
his conditions prevented him from participating in any programs or activities, much less that
reasonable accommodations were needed, requested, or refused. The District Court thus
appropriately dismissed Cordero’s ADA claim.
Upon independent review of the record, and for the reasons principally set forth in the
District Court’s orders and judgment, we find Cordero’s remaining arguments to be without merit.
CONCLUSION
For the foregoing reasons, we AFFIRM the December 12, 2016 judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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