Petition for Writ of Certiorari — Jose Luis Mattes Baez Carmona Lopez Cordero, Petitioner v. Connecticut Department of Correction, et al.

Case 18-775, Document 48, 07/12/2018, 2344115, Page? of 1

D. Conn.

I 8-cv-343

Covello, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

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,

12

in the City of New York, on the 1day of July, two thousand eighteen.

Present:

Reena Raggi,

Peter W. Hall,

Debra Ann Livingston,

Circuit Judges.

Jose Luis Mattes Baez Carmona Lopez Cordero,

Plaintiff-Appellant,

18-775

V.

United States Census Bureau, Department of Correction, Connecticut,

Defendants-Appellees.

Appellant, pro Se, moves for leave to proceed informa pauperis, to "have [his] actual identification

enforced by the Court, pursuant to 5 & 14

restored," and "to have [his] liberty interests

Amendments due process clause(s)." Upon due consideration, it is hereby ORDERED that the

motions are DENIED and the appeal is DISMISSED because it "lacks an arguable basis either in

law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also 28 U.S.C. § 1915(e).

.

.

.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court

~SECO 13

Appendix-A

4,

Case 3:18-cv-00343-AVC Document 9 Filed 03/14/18 Page 1 of 8

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

JOSE LUIS MATTOS BAEZ

CARMONA LOPEZ CORDERO,

plaintiff,

CASE NO. 3:18-cv-343 (AVC)

V.

DEPARTMENT OF CORRECTION, ET

AL.,

defendants.

RULING AND ORDER

The plaintiff, Jose Luis Mattos Baez Carmona Lopez Cordero,

filed this case pro se under 42 U.S.C. q 198,3. His complaint

was received on February 27, 2018, and on March 7, 2018, the

court granted his motion to proceed in forma pauperis. On March

6, 2018, Cordero filed an amended complaint naming two

defendants, the Department of Correction and the Bureau of the

Census. Cordero challenges his designation as Hispanic on his

prison identification card. He seeks damages as well as

declaratory and injunctive relief.

Under section 1915A of title 28 of the United States Code,

the court must review prisoner civil complaints and dismiss any

portion of the complaint that is frivolous or malicious, that

fails to state a claim upon which relief may be granted, or that

seeks monetary relief from a defendant who is immune from such

Appendix-B(1)

Case 3:18-cv-00343-AVC Document 9 Filed 03/14/18 Page 2 of 8

relief. Id. In reviewing a pro se complaint, the court must

assume the truth of the allegations, and interpret them

liberally to "raise the strongest arguments [they] suggest[]."

Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)

Although detailed allegations are not required, the

complaint must include sufficient facts to afford the defendants

fair notice of the claims and the grounds upon which they are

based and to demonstrate.

.

right. to relief.

-

Bell Atlantic-v.

Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations

are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)

.

The plaintiff must plead "enough facts to state a claim

to relief that is plausible on its face." Twombly, 550 U.S. at

LQ...

Nevertheless, it is well-established that "[p]ro se.

complaints 'must be construed liberally and interpreted to raise.

the strongest arguments that they suggest.'" Sykes v. Bank of

Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed.

Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also

Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010)

(discussing special rules of solicitude for pse litigants)

FACTS

The amended complaint alleges the following facts. Cordero

describes himself as "a miscegenized Americanized HispanicKj

Appendix-B(2)

Case 3:18-cv-00343-AVC Document 9 Filed 03/14/18 Page 3 of 8

Puerto Rican-Spanish-Latino-Boriqua-Taino-American person of

color." Cordero was born in Puerto Rico in September 1962. His

father, Encarnacion Mättos, is a member of the Native American

Taino tribe. Cordero's birth name is Jose Luis Mattos.

Upon admission to the Department of Correction, Cordero was

identified as Hispanic. His identification card includes an H

for Hispanic in the space for racial designation. Correctional

officials did not obtain his consent before so designating him.

Cordero filed a grievance to have the designation changed

because Hispanic is an ethnic, not a racial, designation. The

grievance and appeal were denied. Cordero was informed that the

Department of Correction's practice is to use racial/ethnic

codes consistent with other criminal justice agencies and that

the practice would not change.

ANALYSIS

Cordero argues that the unconsented classification has

deprived him of "access to any existing rights, privileges, or

immunities without notice or review, when and if attached to

present or prospective work, education, identification, inter

alia, when attached to specific race identification and

classification." He seeks an injunction directing the

defendants to use his DNA to identify his race; declaratory

3

Appendix-B( 3)

JI

Case 3:18-cv-00343-AVC Document 9 Filed 03/14/18 Page 4 of 8

relief to have that race noted in all of his records, including

on his identification card, or to assign him his father's race;

and compensatory damages in the form of $25,000,000.00 ora

scholarship for a correspondence law school education.

The court first notes that Cordero has not named proper

defendants. He brings this action pursuant to 42 U.S.C. § 1983,

and names two defendants, the Department of Correction, a state

agency, and the Census Bureau, a. federal agency.

To state a section 1983 claim, Cordero must allege facts

showing that a person acting under color of state law deprived

him of a right, privilege or immunity secured by the United

States Constitution or federal law. State agencies are not

persons within the meaning of section 198.3. See Bhatia v.

Connecticut Dep't of Children & Families, 317 F. App'x 51, 52

(2d Cir. 2009) (citing Will v. Michigan Dep't of State Police,

491 U.S. 58, 70-71 (1989)); Angileri v. Wu, No. 3:16-cv352(SRU), 2016 WL 3579073, at *3 (D. Conn. June 28, 2016) (as a

state agency, Department of Correction is not a person within

the meaning of section 1983). In addition, even if the amended

complaint could be construed to assert a state law claim, the

state cannot be sued without its consent. Mercer v. Champion,

139 Conn. App. 216, 224 (2012). (citing Horton v. Meskill, 172

4

Appendix-B( 4)

Case 3:18-cv-00343-AVC 'Document 9 Filed 03/14/18 Page 5 of

Conn. 615, 623 (1977))

.

Cordero alleges no facts suggesting

that the state has consented to suit in this case.

The Census Bureau is 'a federal agency. Thus, it does not

act under color of state law and is not 'a proper defendant in a

section 1983 action. Further, sovereign immunity protects

federal agencies from suit absent a waiver. F.D.I.C. v. Meyer,

510 U.S. 471, 475 (1994). For claims against federal agencies

seeking non-monetary relief, the Administrative Procedure Act

("APA") waives sovereign immunity. See 5 U.S.C. § 702. The

waiver applies even if the lawsuit is not filed pursuant to the

APA. See Gupta v. S.E.C., 796 F. Strnp. 2d 503, 509 (S.D.N.Y.

2011) (quoting Trudeau v. Fed.' Trade Comm'n, 456 F.3d 178, 186

(D.C. Cir. 2006)); see also Sharkey v. Quarantillo, 541 F.3d 75,

91 (2d

Cir. 2008) ("Section 702 of the APA 'waives the federal

government's sovereign immunity in actions [for non-monetary

relief against an agency or officer thereof] brought under the

general federal question jurisdiction statute.'" (quoting Lunney

v. United States, 319 F.3d 550,. 557-58 (2d Cir. 2003))).

In this case, although Cordero seeks injunctive relief, he

seeks that relief only from the Department of Correction. He

does not direct any request for relief to the Census Bureau and,

in fact, alleges no facts pertaining to the Census Bureau.

5

Appendix-B( 5)

Any

Case 3:18-cv-00343-AVC Document 9 Filed 03/14/18 Page 6 of 8

claim against the Census Bureau is -' barred by sovereign immunity.

Further, even if Cordero had named proper defendants, the

amended complaint must be dismissed. Cordero states that he

brings this action to redress the violation of his rights under

the Eighth Amendment, which protects inmates from cruel and

unusual punishment. When a court considers whether a punishment

is cruel and unusual, it considers "the evolving standards of

decency that mark the progress of a maturing-society." Graham

v. Florida, 560 U.S. 48, 58 (2010) (citation and internal

quotation marks omitted). Cordero alleges that he is designated

as Hispanic on his identification card. Research reveals no

cases holding that an alleged incorrect designation constitutes

punishment or violates current standards of decency. Thus, the

allegations do not support an Eighth Amendment claim.

Cordero generally states that this designation deprives him

of rights and privileges. He has not, however, identified even

one right denied to him because of the classification. Although

he correctly argues that Hispanic is an ethnic designation, not

a racial one, Cordero was informed that the Department of

Correction uses racial/ethnic codes consistent with other

criminal justice agencies. Research reveals no constitutionally

protected right to have a different designation on his

M.

Appendix-B(6)

Case 3:18-cv-00343-AVC Document 9 Filed 03/14/18 Page 7 of 8

identification card. See Houston v. Sheahan, No. 13-CV-6594FPG, 2017 WL 3425271, at *4_5 (W.D.N.Y. Aug. 9, 2017) (motion to

dismiss granted regarding inmate's claim for false records

because inmate failed establish that any false statements were

or would be relied upon in an unconstitutionally significant

manner) (citing Paine v. Baker, 595 F.2d 197, 201 (4th Cir.

1979))

.

Cordero has not alleged any facts showing that

correctional officials have relied, or would rely, on the

designation to his detriment in a constitutionally significant

way. Thus, his allegations do not support a due process claim.

See Pugliese v. Nelson, 617 F.2d 9169 923-24 (2d Cir. 1980)

(holding that inmates have no due process interest in avoiding

classification that might preclude or delay benefits).

Further, in the amended complaint, Cordero describes

himself as Hispanic, Latino, Spanish and Puerto Rican. Thus, he

has conceded that the designation, although not a racial

designation, is accurate.

Finally, the court questions the timeliness of Cordero's

complaint. Although he alleges that he questioned correctional

officials regarding his designation in March 2017, the

Department of Correction website indicates that Cordero has been

confined since September 1988. The limitations period for

7

Appendix-B( 7)

Case 3:18-cv-00343-AVC Document 9 Filed 03/14/18 Page 8 of 8

filing a section 1983 action is three years; Lounsbury v.

Jeffries, 25 F.3d 131, 134 (2d Cir. 1994)

.

There is no

indication that Cordero's designation has changed since his

admission. If that is correct, Cordero has been on notice of

the designation for nearly thirty years and the complaint would

have been filed over twenty-six years too late.

The complaint is DISMISSED pursuant to 28 U.S.C.

1915A(b) (1), for failure to state a cognizable claim. The clerk

is directed to enter judgment and close this case.

SO ORDERED this 14th day of March 2018 at Hartford,

Connecticut.

Is!

Alfred V. Covello

United States District Judge

[]

Appendix-B(8)

Case 3:18-cv-00343-AVC Document 10 Filed 03/16/18 Page 1 of 1

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

JOSE LUIS MATTOS BAEZ

CARMONA LOPEZ CORDERO,

plaintiff,

CASE NO. 3:18-cv-343 (AVC)

V.

CONNECTICUT DEPARTMENT OF

CORRECTION AND BUREAU OF

THE CENSUS

defendants.

JUDGMENT

This action having come before the Court for consideration

of the plaintiff's complaint and,

The Court having considered the complaint in this case and

having issued a ruling and order on March 14, 2018 pursuant to

28 U.S.C. section 1915A(b) (1), for failure to state a cognizable

claim, it is hereby,

ORDERED, ADJUDGED and DECREED that judgment be and is

hereby entered dismissing the complaint.

Dated at Hartford, Connecticut, this 16th day of March,

2018.

ROBIN TABORA, Clerk

By: /s/ Michael Bozek

Michael Bozek

Deputy Clerk

Entered on date:, 3/16/2018

Appendix-B(9)

Additional material

from this filing is

available in the

Clerk's Office.