Opinion
HHDCV175049609S
06-25-2019
Michael DALY v. Andrew FULLER
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
Before the court is a motion to dismiss a petition for a writ of mandamus in which the self-represented plaintiff, Michael Daly, an inmate, seeks an order of the court that Andrew Fuller, LPN, a Health Services Review Coordinator (HSR Coordinator) employed at the Osborn Correctional Institution, issue a dispositional response to the plaintiff’s request for a health services review (HSR request) that will afford the plaintiff an opportunity to file the appropriate administrative appeal. In the view of the plaintiff, the defendant’s response to his request for a health services review of "[r]eturned without disposition," is outside of his statutory authority. Because the plaintiff relies upon a section of the administration directives of the Department of Correction that is inapplicable to his HSR request, and thus does not assert a mandatory duty, the motion to dismiss is granted.
The following factual and procedural history is relevant to this decision. The plaintiff alleges in his complaint that on November 22, 2016, he filed an Inmate Administrative Remedy- Health Services Review pursuant to Inmate Grievance Procedure #12321-115-16. The gravamen of the plaintiff’s complaint begins with his committal to the custody of the commissioner of correction on a mittimus containing a detoxification watch. The plaintiff received a medical intake screening upon his admission to the Hartford Correctional Center (HCC) on June 27, 2016. Despite the watch placed on his mittimus, the plaintiff received no treatment for his opiate withdrawal from at least June 28, 2016 through July 1, 2016. On November 22, 2016, the plaintiff submitted a request for a Health Services Review. While the factual predicate for the requested review was the lack of treatment for his opiate withdrawal, the plaintiff nowhere articulates the nature of the review requested. This is significant because the applicable administrative directives provide for different responses depending on the nature of the review requested.
Although not clear from the complaint, the court surmises that while the plaintiff is currently an inmate at the MacDougall-Walker Correctional Institution he was, at the time of the filing of the request for review, located at the Osborn Correctional Institution (OCI).
The administrative directives interpret and apply the regulations promulgated to govern the department of correction. Pierce v. Lantz, 113 Conn.App. 98, 104, 965 A.2d 576 (2009). General Statutes § 18-81 provides that the commissioner of correction "shall establish rules for the administrative practices" for correctional institutions and facilities. Regs., Conn. State Agencies § 18-81-1 provides that the commissioner is responsible for the administration of the operations of the Department of Correction and the overall direction of all institutions, facilities and activities of the department.
The defendant’s response dated December 28, 2016 contained the "Returned without disposition" outcome and explained, "[w]e can’t answer for what happened at Hartford (HCC). It is going to be forwarded to Dr. Wu to evaluate. You have been treated properly here at OCI." After receiving no follow up the plaintiff wrote on February 15, 2017, to the defendant inquiring whether an evaluation had been conducted. Thereafter, on February 27, 2017, the plaintiff wrote to Richard Furey, Health Services Administrator, advised him of his health services review request, the response and his follow up letter to the defendant. Fuller responded, "Dr. Wu no longer works for UConn. I cannot answer for this." The complaint does not specify what Dr. Wu’s role was, if any, in determining the need for treatment for the plaintiff’s opiate withdrawal.
Although not dispositive of the present motion the court notes that A.D. c. 8.9.3.H. defines the phrase "Return without Disposition" as "The Administrative Remedy has not been written or processed according to Directive procedures."
The plaintiff’s complaint seeks an order from the court by way of mandamus compelling the defendant to respond to the plaintiff’s review request with one of the disposition responses mandated by Administrative Directives Department of Correction, c. 8.9(12)(A) (July 2012). This administrative directive permits an inmate who is affected by "a practice, procedure, administrative provision or policy or an allegation of improper conduct by a health services provider" to request a review of a "practice or procedure" and requires the HSR Coordinator to articulate an outcome in one of five enumerated dispositions: "Rejected, Denied, Compromised, Upheld or Withdrawn."
The administrative directives interpret and apply the regulations promulgated to govern the department of correction. Pierce v. Lantz, 113 Conn.App. 98, 104, 965 A.2d 576 (2009). General Statutes § 18-81 provides that the commissioner of correction "shall establish rules for the administrative practices" for correctional institutions and facilities. Regs., Conn. State Agencies § 18-81-1 provides that the commissioner is responsible for the administration of the operations of the Department of Correction and the overall direction of all institutions, facilities and activities of the department.
The defendant’s motion to dismiss asserts the court is deprived of subject matter jurisdiction over the plaintiff’s complaint because of the doctrine of sovereign immunity, which bars actions against the state without the state’s consent. This is so, in the view of the defendant, because the only potential exception to the doctrine of sovereign immunity, one involving an action for declaratory or injunctive relief alleging that the state officer against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute, is not applicable. The plaintiff objects to the motion on the grounds that it is untimely as having been filed late; that sovereign immunity does not apply to suits seeking mandamus brought to compel a public officer to perform public duties delegated to him, and that this is indeed an action against a state officer acting in excess of statutory authority and thus falls within a recognized exception.
"In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). "Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case ... [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts ... Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citation omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651. In the present case, the motion to dismiss is based on the complaint alone.
"It is a well-established rule of the common law that a state cannot be sued without its consent. [A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Citation omitted; internal quotation marks omitted.) Estate of Bochicchio v. Quinn, 136 Conn.App. 359, 366-67, 46 A.3d 239 (2012). "[W]hen an official acts in excess of his statutory authority and does not carry out government policy, an individual’s right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine." (Citations omitted, internal quotations marks omitted) C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 259, 932 A.2d 1053 (2007). In C.R. Klewin Northeast, an action in the nature of a writ of mandamus, the dispositive issue was whether the statute relied upon created a mandatory duty. Id., 260.
The plaintiff in the present case asserts not that there exists a statutory wavier of sovereign immunity or that the defendant acted pursuant to an unconstitutional statute. Rather, the plaintiff’s view is that the defendant acted in excess of his statutory authority because he failed to respond to his health review request with one of the responses mandated by A.D. c. 8.9.12(A). The plaintiff’s reliance on A.D. c. 8.9.12(A) as being applicable to the claims raised in his complaint is misplaced.
The defendant assets in his memorandum in support of the motion to dismiss simply that the plaintiff has not "offered any factual allegations that, if true, reasonably would support the conclusion that the defendant acted in excess of his statutory authority." The defendant offered no analysis of why an administrative directive does not rise to the level of a statutory mandate. Nevertheless, this issue need not be reached because a review of the plaintiff’s complaint and the applicable administrative directive reveals that the claimed mandatory duty is not applicable to the plaintiff’s complaint.
The plaintiff’s first objection, the untimeliness of the motion to dismiss, is easily rejected. "[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time ... Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009).
The plaintiff’s remaining two objections fail because the dispositional options set forth in A.D. c. 8.9.12 do not apply to his request for a health services review. A review of Administrative Directives Department of Correction, c. 8.9 is required. This directive provides for review of health services to inmates. A.D. c. 8.9.3 provides definitions for the directive. A.D. c. 8.9.3.1. defines a Review as "A review by an authorized health services staff member of: (1) an existing diagnostic or treatment decision, including a decision to provide no treatment [or] (2) an established policy, provision, procedure or practice, or the need for such." Similarly, A.D. c. 8.9.9 sets forth the two types of Health Services Review: "A. Diagnosis and Treatment" which is "[a] review of a diagnosis or treatment including a decision to provide no treatment, relating to an individual inmate. B. Review of an Administrative Issue. A review of a practice, procedure, administrative provision or policy, or an allegation of improper conduct by a health services provider."
There are thus two types of reviews, one of a "diagnosis or treatment" and a second involving an administrative issue as defined. The plaintiff does not specify which type of review he requested but a fair reading of his complaint suggests that it was the first. Exhibit A to the complaint, which provides the only information relative to the contents of the plaintiff’s HSR request, is comprised of a single page from the HSR request. In that request the plaintiff complains of his lack of treatment for his opiate withdrawal and does not question a "practice, procedure, administrative provision or policy, or an allegation of improper conduct."
Administrative Directives Department of Correction, c. 8.9.11, titled "Review of a Diagnosis or Treatment," provides that "An inmate, who is dissatisfied with a diagnosis or treatment that pertains to him may apply for a Health Services Review if informal resolution via inmate request was unsuccessful." The dispositions of such a review do not include the types of responses or dispositions alleged by the plaintiff to be applicable to his case. Rather, the five types of outcomes asserted by the plaintiff to be mandatory under his circumstances by the plaintiff, "Rejected, Denied, Compromised, Upheld or Withdrawn," appear only in A.D. c. 8.9.12. That sub-section is applicable only to a review of an "Administrative Issue" involving an "established policy provision, procedure or practice or the need for such." Because the plaintiff’s complaint cannot be construed properly to implicate an "Administrative Issue," his reliance on A.D. c. 8.9.12.A. as the source for a mandated disposition response is misplaced because that section does not apply to the nature of his complaint. Any evaluation of whether the plaintiff’s complaint implicates an excess of statutory authority by virtue of a disregard of the apparent strictures of the commissioner’s administrative directives is unnecessary.
For the foregoing reason the defendant’s motion to dismiss is granted.