Romano v. Lisson

16-2708
Romano v. Lisson, 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 “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
3rd day of October, two thousand seventeen.
Present:
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges,
_____________________________________
ANTHONY ROMANO,
Plaintiff-Appellant,
v. 16-2708
LISA LISSON, K. CROWLEY, T. CAMPBELL,
SCARVANI, EVERTT, STIRK, SCARELLI, CAPTAIN,
BLASK, SERGEANT, HAYES, SERGEANT, THE
JOHNSON LAW GROUP LLP, NAPOLI BERN RIPKASH
KOLNIK LLP,
Defendants.
_____________________________________
For Plaintiff-Appellant: BENJAMIN A. FLEMING (Ira M. Feinberg, Alan M.
Mendelsohn, on the brief), Hogan Lovells, New York,
NY
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Appeal from a judgment of the United States District Court for the Western District of
New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on June 16, 2016 is VACATED to
the extent set forth below, and the case is REMANDED for further proceedings consistent with
this order.
Anthony Romano (“Romano”) is a prisoner who was incarcerated at the Wende
Correctional Facility, a maximum-security prison located in Alden, New York. On February 1,
2016, Romano filed a handwritten § 1983 action against nine Wende officials and two law firms
alleging violations of his constitutional rights.
The complaint alleges that the prison officials deprived Romano of his access to the
phone and his legal mail and that the law firms improperly settled a civil suit on his behalf and
dropped him from another. More specifically regarding the allegations against the prison
officials, the complaint alleges that Evertt, a correctional officer, “tampered with all legal mail.”
Pl.-Appellant App. at 12. Additionally, eight Wende officials are alleged to have deprived him of
his phone privileges (or conspired to do so) from late November 2013 through 2014, cutting off
Romano’s contact with his attorneys (although it is not clear from the complaint which attorneys
he is referring to). The complaint specifies that Romano is raising Free Speech, Due Process,
Access to the Courts, and Right to Counsel claims, and that the officials’ and law firms’ conduct
violated his First, Eighth, and Fourteenth Amendment rights. Romano sought permission to
proceed in forma pauperis before the district court and moved for service of process on the
defendants.
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On June 16, 2016, the District Court for the Western District of New York (Arcara, J.)
granted Romano’s motion to proceed in forma pauperis and sua sponte dismissed the case with
prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b) on the grounds that Romano
failed to state a claim upon which relief can be granted. The court dismissed the § 1983 claims
against the two law firms because neither were state actors and the claims against the prison
officials on the grounds that granting leave to amend would be futile.
Romano filed a timely notice of appeal and moved to proceed in forma pauperis and for
appointment of counsel. On December 8, 2016, we granted both motions and affirmed the
judgment of the district court with respect to Romano’s claims against his private attorneys. As
to the remaining claims addressed herein, we assume the parties’ familiarity with the underlying
facts, procedural history, and issues before this Court, and discuss only those facts relevant to our
decision.
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We review de novo both “a district court’s sua sponte dismissal of an in forma pauperis
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B),” Fowlkes v. Ironworkers Local 40, 790 F.3d
378, 384 n.8 (2d Cir. 2015), and a district court’s denial of leave to amend on futility grounds,
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). We conclude that the district court erred in
denying Romano leave to amend as to his remaining claims. We therefore vacate the judgment
below as to these claims and remand to the district court for further proceedings consistent with
this opinion.
A complaint must state a plausible claim for relief to survive dismissal. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “In addressing the sufficiency of a complaint we accept as true all
factual allegations and draw from them all reasonable inferences; but we are not required to
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credit conclusory allegations or legal conclusions couched as factual allegations.” Nielsen, 746
F.3d at 62 (quoting Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013)). Even if a complaint
fails to state a claim, “leave to amend should be freely given, and a pro se litigant in particular
should be afforded every reasonable opportunity to demonstrate that he has a valid claim.”
Nielsen, 746 F.3d at 62 (quoting Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (internal
quotation marks and citation omitted)).
We have held that “a prisoner’s right to the free flow of incoming and outgoing mail is
protected by the First Amendment.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). A prison
may not “regularly and unjustifiably” interfere with a prisoner’s mail. Ahlers v. Rabinowitz, 684
F.3d 53, 64 (2d Cir. 2012) (quoting Davis, 320 F.3d at 351). The complaint makes only one
reference to mail tampering: that Evertt “tampered with all legal mail.” Pl.-Appellant App. at 12.
Romano argues on appeal that the word “all” suggests the prison systematically interfered with
his legal mail. But without more specifics, an allegation that prison officials interfered with “all
legal mail” is too conclusory to be plausible. The district court erred, however, in dismissing this
claim with prejudice. As we have said, “[a] pro se complaint should not be dismissed without the
Court granting leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Nielsen, 746 F.3d at 62 (quoting Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal brackets and quotation marks omitted)).
The district court erred in dismissing Romano’s phone-related allegations with prejudice
for the same reason. Although this Court has not addressed whether prisoners enjoy a First
Amendment right to make and receive phone calls, other Circuits have held they do in at least
some circumstances. See Johnson v. State of Cal., 207 F.3d 650, 656 (9th Cir. 2000); Tucker v.
Randall, 948 F.2d 388, 390–91 (7th Cir. 1991); see also Birth v. Pepe, No. 98 CV 1291 (RR),
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1999 WL 684162, at *2 (E.D.N.Y. July 21, 1999) (Raggi, J.). Romano lists eight officials who
either deprived him of his phone privileges or conspired to do so from November 2013 through
2014. While Romano’s allegations are sparse and we take no position here on the viability of a
claim grounded in these allegations, we conclude that Romano should have been offered the
opportunity to amend so as reasonably to set forth this claim.
Accordingly, we VACATE the judgment below to the extent that it dismissed with
prejudice Romano’s claims against the prison officials. We REMAND to the district court so
that Romano may be provided the opportunity to amend the complaint as to the aforementioned
claims and any related claims against the officials that the district court identifies as suitable for
amendment. In light of Romano’s asserted history of mental illness and the complexity of the
telephone access issue, which is a matter of first impression in this Circuit, we recommend that
the district court consider appointing counsel for Romano to help him prosecute this action. See,
e.g., Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 476 (2d Cir. 2006); see also Hodge v.
Police Officers, 802 F.2d 58, 60 (2d Cir. 1986).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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