Opinion
CV155016827S
09-05-2018
Devon SMITH v. James DZURENDA et al.
UNPUBLISHED OPINION
PETER EMMETT WIESE, JUDGE
I
PROCEDURAL HISTORY
This action arises from an inmate’s alleged loss of personal property. That loss stems from three specific dates alleged in the complaint: December 27, 2011, May 8, 2012, and December 4, 2012.
The plaintiff does not alleges any further dates or times. He does reference the "aforementioned dates and times." (Amend. Compl. passim. ) Due to the lack of other dates specified in the complaint, the court will view these dates as the instances that the plaintiff alleges violations occurred.
On March 17, 2017, the plaintiff, Devon E. Smith, filed a four-count amended complaint against the defendants, the Department of Corrections (DOC) Acting Commissioner James Dzurenda, DOC Captain James Watson at Cheshire Correctional Institute (CCI), Correctional Officer Ceasor Faraci at CCI in the position of first shift property officer, and Correctional Officer Andrew T. Moore in the position of second shift senior A & D room officer at CCI. They are being sued in their official and individual capacities. The counts include intimidation, retaliation and harassment, deliberate indifference, wanton, and maliciousness, intentional infliction of emotional distress, and negligent infliction of emotional distress.
On each of the dates listed in the complaint, the plaintiff alleges that the defendants had personal issues with the plaintiff possessing certain personal items and had them confiscated, even though the items were lawfully obtained and owned by the plaintiff. The plaintiff alleges that the defendants worked to intimidate and mock the plaintiff and retaliated against him by destroying or not returning certain property items.
The plaintiff was originally ordered by the court to file an amended complaint removing three items from his complaint: a hot pot, a TV remote, and a TV. See Plaintiff’s Motion for Order (# 163.00). The plaintiff filed his amended complaint on March 17, 2017, but did not remove references to the listed items from the amended complaint. The court will not consider any of the claims for these items as they were previously ordered stricken from the complaint by the plaintiff’s own request.
On April 4, 2017, the defendants filed a supplemental motion for summary judgment on the grounds that the plaintiff’s amended complaint is time barred by the three-year statute of limitations; even if the court finds that the claims are not time barred, the plaintiff’s official capacity claims are barred by the eleventh amendment of the U.S. constitution; the defendants are entitled to qualified immunity; and the defendants, as agents of the state of Connecticut, are entitled to statutory immunity on the plaintiff’s state law claims.
The plaintiff did not file a response. The court heard argument at a June 29, 2018 hearing.
The plaintiff did, however, file a document called an affidavit in support of a response to the defendant’s supplemental motion for summary judgment on July 16, 2018, after the hearing. However, pursuant to Practice Book § 17-45(b), "any adverse party shall file and serve a response to the motion for summary judgment within forty-five days of the filing of the motion, including opposing affidavits and other available documentary evidence." No such response was filed by the plaintiff. Additionally, the document that was filed is not compliant with Practice Book § 17-46 as it would not be admissible in evidence and sworn or certified copies of all papers and parts are not attached. When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly decide[s] the motion by looking only to the sufficiency of the [movant’s] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
II
DISCUSSION
A. Applicable Law- Motion for Summary Judgment
"Summary judgment may be granted where the claim is barred by the statute of limitations ... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute ..." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013).
"[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Cefaratti v. Aranow, 321 Conn. 637, 645-46, 138 A.3d 837 (2016). "Put differently, it is then incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists." (Internal quotation marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d 1145 (2014).
B. Unauthenticated Documents
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment ... Practice Book § [17-45], although containing the phrase including but not limited to, contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable ... [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Emphasis omitted; internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013).
"[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).
C. Statute of Limitations
In their memorandum in support of their motion for summary judgment, the defendants argue that the incidents that occurred before September 11, 2012, which is three years prior to the date that plaintiff filed and served his original complaint, are barred by the statute of limitations. Specifically, the defendants argue that the statute of limitations are "occurrence statutes." See Piteo v. Gottier, 112 Conn.App. 441, 445, 963 A.2d 83 (2009). As such, the time of the initial incident- December 27, 2011- would set the expiration of the statute of limitations three years from the date of the act complained of under the statute for tort actions. See General Statutes § 52-577 ("[n]o action founded upon a tort shall be brought but within three years from the date of the act complained of"). Thus, the defendants argue that any conduct that occurred prior to September 11, 2012 would be time barred.
Accordingly, the court finds that any conduct alleged to have occurred prior to September 11, 2012 is time barred by the applicable statute of limitations. This includes the following: conduct that occurred on December 27, 2011 regarding the plaintiff’s alleged loss of property; conduct during the subsequent interaction with the dog team; conduct that occurred during the retrieval of plaintiff’s property in the property room; conduct that relates to the return of plaintiff’s property by the defendant Faraci; conduct that occurred on May 8, 2012 regarding the plaintiff’s alleged loss of property during his transfer; and the alleged loss of the plaintiff’s Property File.
D. Remaining Allegations of December 4, 2012 Incident
i. New Factual Allegations
An amended complaint will be treated as filed at the time of the original complaint if it relates back to the original complaint. Jonap v. Silver, 1 Conn.App. 550, 555, 474 A.2d 800 (1984). "[A] party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same ... If a new cause of action is alleged in an amended complaint, however, it will [speak] as of the date when it was filed ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129-30, 788 A.2d 83 (2002).
In the present case, the plaintiff’s amended complaint is, in most instances, substantially similar to the original complaint filed in 2015. The additional facts that have been added to the amended complaint are contained in paragraph 28. Paragraph 28 alleges that prior to being moved to NCI, the plaintiff’s jewelry was taken from him, and upon its return to him at NCI, the charm and chain were "deliberately broken."
The plaintiff’s amended complaint alleges retaliation and a violation of the CCI Unit Directives during the December 4, 2012 incident. The original complaint does not lay out any factual basis or even mention the damage to the plaintiff’s jewelry. The original cause of action stemming from the December 4, 2012 conduct is that of retaliation, while the amended complaint attempts to add in further loss of property to his cause of action. Accordingly, the court finds that the plaintiff’s additional facts in paragraph 28 are new factual allegations that do not relate back to the original complaint and thus, state a new cause of action for conduct that occurred on December 4, 2012. The allegations of conduct that occurred on December 4, 2012, as contained in the amended complaint, will be taken as having been filed on March 17, 2017. Those new factual allegations contained in the amended complaint are outside the three-year statute of limitations.
ii. Remaining Allegations
The court finds that the remaining claims by the plaintiff are as follows: The plaintiff alleges in paragraph 22 of his amended complaint that on December 4, 2012, the defendant Moore attempted to house him with a "known homosexual" at CCI, which led the plaintiff to assault a CCI employee. The plaintiff further alleges that the defendant Moore failed to address the housing situation in retaliation for litigation filed against him by the plaintiff. Paragraph 26 alleges that following the incident of assault, numerous administrative complaints were filed against defendant Watson. In response to those complaints, the defendant allegedly falsely claimed that he was never told by staff of the housing situation with the plaintiff and the defendant was subsequently as the unit manager for the housing block.
The court finds that only the plaintiff’s claims with regard to the December 4, 2012 conduct remain after the time barred allegations are removed. Additionally, as there are no allegations against defendant Watson during the December 4, 2012 incident, the court finds that there are no remaining claims against defendant Watson.
E. Official Capacity Claims
In the present case, the defendants are being sued in their individual and official capacities. The plaintiff’s original complaint brought suit against the defendant Dzurenda in his official capacity, and the defendants Watson, Moore, and Faraci in their individual capacities. The plaintiff’s amended complaint does not distinguish in what capacities each of the defendants are being sued. As defendant Dzurenda was not served in his individual capacity, the court finds that the plaintiff cannot maintain any claims against him in his individual capacity. Therefore, the court will view the claims in the amended complaint as mirroring those of the original complaint with claims against all defendants in their official capacities and claims against defendants Moore and Faraci in their individual capacities.
Additionally, the defendant Faraci agreed to authorize the defendants’ counsel to accept service of process on his behalf in his individual capacity. See Defendant Faraci’s Response to Plaintiff’s Motion for Order (# 121.00).
During the June 29, 2018 hearing, the plaintiff abandoned his official capacity claims, leaving only his claims against the defendants in their individual capacities. He did not address any arguments made by the defendants at the hearing and has not presented any further arguments in reply to the defendants’ motion for summary judgment on the claims against the defendants in their official capacities. Thus, the court finds that the plaintiff’s claims against all the defendants in their official capacities are abandoned and only the plaintiff’s claims against defendants Moore and Faraci in their individual capacities remain.
F. Plaintiff’s Third Attempt at Litigation- Collateral Estoppel
The defendants argue in their motion for summary judgment that the plaintiff is attempting a third "bite at the same apple," effectively arguing that the plaintiff is barred by the doctrine of collateral estoppel, which is one of their special defenses.
"Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action ... For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Internal quotation marks omitted.) Pollansky v. Pollansky, 162 Conn.App. 635, 650, 133 A.3d 167 (2016).
"As the moving party seeking summary judgment, it [is] incumbent upon the defendants to show that the judgment ... in the [prior] action could not have been rendered without deciding the issues upon which the [present] action [is] predicated." Dowling v. Finley Associates, Inc., 248 Conn. 364, 378-79, 727 A.2d 1245 (1999).
While the defendants argue that the first and second suits raise the same claims against the same parties as in the present case, the two prior suits were dismissed; the first for failure to prosecute, and the second on sovereign immunity and lack of personal jurisdiction grounds. In the plaintiff’s second case, the defendants’ official capacity claims, which are nearly identical to the claims raised by the plaintiff in this suit, were dismissed on sovereign immunity grounds. The individual capacity claims were not fully litigated as the court, Abrams, J., found that the three defendants who were sued in their individual capacities- Watson, Faraci, and Moore- were not served properly. Therefore, the court finds that the plaintiff’s official capacity claims are barred by the doctrine of collateral estoppel, the plaintiff has not already litigated the claims remaining in the present action in his previous suits, and the doctrine of collateral estoppel does not apply to bar any further litigation of those claims.
Smith v. Faraci, Superior Court, judicial district of New Haven, Docket No. NNH-CV-12-5034373-S (July 30, 2013, Robinson, J.). The plaintiff brought suit against Faraci, "Unknown Moore," John Doe # 1, and John Doe # 2. The court, Robinson, J., dismissed the case for failure to prosecute, stating that "the plaintiff indicated that he was not prepared to go forward with the hearing."
Smith v. Dzurenda, Superior Court, judicial district of New Britain, Docket No. HHB-CV-13-5015900-S (December 21, 2015, Abrams, J.). The plaintiff brought suit against defendant Dzurenda, Jon Brighthaupt, Brian Vigor, John Johnson, and defendants Watson, Faraci, and "John Doe Moore." The plaintiff attempted to consolidate that suit with the present suit. That suit was dismissed on sovereign immunity grounds and improper service of process.
G. Sovereign Immunity
As the plaintiff is deemed to have abandoned his claims against the defendants in their official capacities, the court need not address the claims against the defendants in their official capacities. Nevertheless, because the plaintiff brought suit against the defendants Moore and Faraci in their individual capacities, the doctrine of sovereign immunity does not bar all of the plaintiff’s claims. See Miller v. Egan, 265 Conn. 301, 307, 828 A.2d 549 (2003).
"The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty." Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). "[B]ecause the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." Markley v. Dept. of Public Utility Control, 301 Conn. 56, 65, 23 A.3d 668 (2011). "Not only have [Connecticut courts] recognized the state’s immunity as an entity, but [they] have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state ... Exceptions to this doctrine are few and narrowly construed under our jurisprudence." (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007).
There are three exceptions to immunity enjoyed by the state and its officials: "(1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity; ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights; ... and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).
"If the plaintiff’s complaint reasonably may be construed to bring claims against the [defendants] in [their] individual [capacities], then sovereign immunity would not bar those claims." Miller v. Egan, supra, 265 Conn. 307. But merely because the plaintiff states that he is suing the defendants in their individual capacities does not make it true. Construction of pleadings is a question of law for the court’s determination, and the test for whether an action is brought against state employees in their individual or official capacities is set forth in the case of Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975).
In Spring, the Court stated that "[t]he vital test is to be found in the essential nature and effect of the proceeding." (Internal quotation marks omitted.) Id. Accordingly, the court must determine whether "the suit is, in effect, one against the state and cannot be maintained without its consent" and must, therefore, look to the following criteria: "(1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom the relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." Id. If the answers to all four inquiries are affirmative, then "the action is deemed to be against the state, and therefore, is barred." (Internal quotation marks omitted.) Cimmino v. Marcoccia, 149 Conn.App. 350, 358, 89 A.3d 384 (2014).
In the present case, the plaintiff’s remaining claims are against the defendants Moore and Faraci in their individual capacities. By applying the four Spring criteria, it is clear that the claims against the remaining defendants are, in fact, against the state and should be barred by sovereign immunity. Each of the defendants is a state official being sued in a matter in which the defendant represents the state, satisfying the first two criteria of Spring. The plaintiff is requesting injunctive relief against the defendants to stop their actions and to enact policies and procedures to prevent those actions and to replace the allegedly lost/damaged property. Those requests would be directed toward the state as the individual defendants would be unable to enact or enforce new DOC policies and procedures. As such, the Spring criteria show that the plaintiff’s claims are, in effect, against the state.
i. Monetary Damages
On claim for monetary damages, regardless of whether the plaintiff has alleged that state officers acted in excess of statutory authority, the plaintiff must seek waiver from the claims commissioner before bringing action against state. Miller v. Egan, supra, 265 Conn. 315-17. "In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so. [A] plaintiff who seeks to bring an action for monetary damages against the state must first obtain authorization from -the claims commissioner." (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 351.
In the present case, the plaintiff does not make any allegations nor does he provide the court with any evidence that he did, in fact, receive authorization from the claims commissioner to commence a suit for damages from the facts in this case. The plaintiff does not even respond to the defendants’ argument that he did not exhaust all of his administrative remedies. The plaintiff merely demands that the defendants "immediately replace all the property wrongfully lost/damaged/destroyed by defendants" as well as money and punitive damages as to each count.
Notwithstanding, the court finds that the proper procedure for the plaintiff to follow was to file a claim with the DOC lost property board pursuant to General Statutes § 18-81y. As he provides no allegations in his complaint regarding that authorization, and as the plaintiff did not file a claim with the lost property board or with the claims commissioner, the court finds that he cannot take advantage of this exception to the state’s sovereign immunity for money damages on the plaintiff’s state law claims.
General Statutes § 18-81y provides in relevant part: "The Commissioner of Correction shall establish a lost property board within the Department of Correction to hear and determine any claim by an inmate of a correctional facility who seeks compensation ... for lost or damaged personal property ... If the board denies a claim ... the inmate may ... present the claim to the Claims Commissioner ..."
ii. Injunctive Relief
But, the sovereign immunity enjoyed by the state is not absolute. The Supreme Court has recognized three narrow exceptions: "(1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights ... and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority." Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 349.
As construed by the court, reduced to their essential elements, and viewed in a light most favorable to him, the plaintiff alleges that the defendants wrongfully and with malicious intent deprived him of personal property. He is requesting injunctive relief to stop the defendants from taking further action against him and to return or replace all of his property.
The defendants argue that the plaintiff fails to state a claim for injunctive relief because his case is moot. Specifically, they argue that the plaintiff is no longer being housed in the same facility as defendant Moore. They argue that the claims for injunctive relief against defendant Faraci are also moot as he is retired and no longer works for the DOC or CCI.
The court finds that the claims for injunctive relief against defendant Faraci are moot, as he is no longer an employee of the state. However, there is no guarantee that the plaintiff and defendant Moore will not be housed together in the future. The plaintiff’s allegations of retaliation for filed litigation if housed with defendant Moore is a situation where the scenario is capable of repetition yet evading review.
As the burden is on the defendants to show that there are no genuine issues of material fact as to the defendants’ intent in their actions, which they have failed to do through affidavits or other evidence submitted to the court, the court finds that there are genuine issues of material fact as to the defendants’ intent with regard to their conduct. See Hospital of Central Connecticut v. Neurosurgical Associates, P.C., 139 Conn.App. 778, 793, 57 A.3d 794 (2012) ("summary judgment is ordinarily inappropriate where an individual’s intent and state of mind are implicated" (internal quotation marks omitted) ).
H. Statutory Immunity
Under General Statutes § 4-165, state officials shall not be "personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment." The plaintiff alleges in count two of his amended complaint that the defendants’ actions were "intentional," "wanton," and "malicious." (Amend. Compl., Count Two.)
"In order to establish that the defendants’ conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one’s acts ... [Such conduct] is more than negligence, more than gross negligence ... [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ... [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ... Indeed, in some instances, the mere fact that an official has acted in excess of his or her authority may suffice to prove that the conduct was wanton, reckless or malicious." (Citations omitted; internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 379-80, 902 A.2d 814 (2002).
In the present case, the plaintiff alleges that, though the defendants’ conduct was in the discharge of their duties as correctional officers, the defendants’ conduct was wanton and malicious. The plaintiff further alleges that the defendants’ conduct, including defendant Watson’s conduct in failing to address the plaintiff’s housing situation in retaliation for litigation filed against defendant Watson, caused him to assault a CCI employee. However, neither the plaintiff nor the defendants provide the court with any evidentiary proof to show that there are no genuine issues of material fact as to the defendants’ intentions. "[S]ummary judgment is ordinarily inappropriate where an individual’s intent and state of mind are implicated." (Internal quotation marks omitted.) Hospital of Central Connecticut v. Neurosurgical Associates, P.C., supra, 139 Conn.App. 793.
As such, the court finds that there are genuine issues of material fact as to whether the defendants acted with the requisite state of consciousness in reckless disregard of the plaintiff’s rights.
I. Failure to Exhaust Administrative Remedies
There are genuine issues of material fact as to whether the plaintiff administratively exhausted his remedies with regard to the loss of his property, specifically his sneakers.
The defendants attached an affidavit of Debra Synott, a captain and statewide property liaison with the DOC. The affidavit states that "[a]ll property claims have to be submitted in accordance with Administrative Directive 9.6 Inmate Administrative Remedies § 16 (See Attached)." (Aff. of Debra Synott ¶ 2.) However, the defendant fails to attach a copy of the Administrative Directives or any other documentation as to the proper procedures that inmates should utilize in situations of lost or damaged property.
The affidavit; Defendant’s Motion for Summary Judgment, Exh. G (# 175.00); is the only exhibit to contain a certificate of authenticity. The only copy of the DOC’s Administrative Directives in the record is an unauthenticated copy of the relevant Directives attached to the plaintiff’s document labeled as an affidavit, dated June 27, 2018. See Plaintiff’s Affidavit (# 213.00).
The defendants later argue that the plaintiff failed to utilize a post-deprivation remedy under § 18-81y, but again fail to present any evidence showing what the proper procedures at the DOC were with regard to deprivation of property. While this procedure has been found to satisfy the due process clause; see Jimenez v. Melendez, Superior Court, judicial district of Hartford, Docket No. CV-14-5038461-S (June 16, 2016, Huddleston, J.); there is still a question with regard to if the plaintiff exhausted his administrative remedies.
Accordingly, the court finds that the defendants have failed to show that there are no genuine issues of material fact as to whether the plaintiff administratively exhausted his remedies with regard to his sneakers.
J. Federal Claims: 42 U.S.C. § 1983
Section 1983 of title 42 of the United States Code provides in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ..."
While the plaintiff does not expressly state a § 1983 claim, the court reads the plaintiff’s pleadings liberally and will address the arguments. See Ajadi v. Commissioner of Correction, 280 Conn. 514, 549, 911 A.2d 712 (2006).
"A state, as an entity having immunity under the eleventh amendment to the United States constitution, is not a ‘person’ within the meaning of § 1983 and thus is not subject to suit under § 1983 in either federal court or state court ... This rule also extends to state officers sued in their official capacities. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)." Miller v. Egan, supra, 265 Conn. 311.
In the present case, the plaintiff makes constitutional claims against the defendants. In order to state a claim under 42 U.S.C. § 1983, "a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." (Internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 762, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1253 (2005).
i. Qualified Immunity
"Under federal law, the doctrine of qualified immunity shields officials from civil damages liability for their discretionary actions as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated ... Qualified immunity is an immunity from suit rather than a mere defense to liability and, therefore, protects officials from the burdens of litigation for the choices that they make in the course of their duties ... Thus, the United States Supreme Court has recognized qualified immunity for government officials [when] it [is] necessary to preserve their ability to serve the public good or to ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service." (Citations omitted.) Brooks v. Sweeney, 299 Conn. 196, 216, 9 A.3d 347 (2010); see also Braham v. Newbould, 160 Conn.App. 294, 301, 124 A.3d 977 (2015).
"Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct ... [The United States Supreme Court] recently reaffirmed that lower courts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first." (Citation omitted.) Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011); see also Traylor v. Gerratana, 148 Conn.App. 605, 612, 88 A.3d 552, cert. denied, 312 Conn. 901, 902, 91 A.3d 908, 112 A.3d 778, cert. denied, 135 S.Ct. 444, 190 L.Ed.2d 336 (2014). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Brooks v. Sweeney, supra, 299 Conn. 217.
In the present case, the plaintiff alleges that defendant Moore attempted to house him with a "known homosexual." (Amend. Compl., ¶ 22.) The plaintiff further alleges that defendant Watson refused to address the housing situation "in retaliation for the litigation filed against him by [the] plaintiff." (Amend. Compl., ¶ 24.) The defendants argue that they are still entitled to qualified immunity because they acted with "objective reasonableness" at all times. While the defendants state their beliefs in their brief, there is no supporting evidence attached to the motion for summary judgment that shows that the defendants believed that their actions were objectively reasonable. The defendants fail to attach any affidavits of the named defendants to show their intent, meaning that summary judgment is inappropriate. See Hospital of Central Connecticut v. Neurosurgical Associates, P.C., supra, 139 Conn.App. 793.
In viewing the allegations in a light most favorable to the plaintiff, and considering the lack of affidavits from both parties, the court finds that there are still serious issues of genuine material fact with regard to the defense of qualified immunity.
K. Eighth Amendment Violations
The parties both agree that prison officials have a duty to make reasonable efforts to ensure the proper handling of inmate property in accordance with DOC Administrative Directives. The parties disagree, however, as to whether the plaintiff sufficiently showed that the conditions of his incarceration posed a substantial risk of serious harm and/or that the prison official was deliberately indifferent to his medical needs or safety.
"[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference ... The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’ " Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
It is well settled that the decision where to house inmates is at the core of prison administrators’ expertise. See Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). The plaintiff alleges that the he was housed in an area that was not designated for "high security" inmates, which the plaintiff was at the time of the incident. The plaintiff alleges that the defendants’ conduct was what caused him to allegedly assault a CCI employee and that the defendants’ conduct was "against the responsibilities they are entrusted [with] as [a] part of their employment as law enforcement officers." (Amend. Compl., ¶ 33.)
The plaintiff alleges that the defendants acted with deliberate indifference in their conduct towards him, specifically in the disappearance of some items of the plaintiff’s property. The defendants argue that the prison official must have known of the risk and disregarded it. While the defendants address the allegations against them with regard to the plaintiff’s lost property, they fail to address any incorporated claims regarding the plaintiff’s safety while being housed in a particular area of CCI. Additionally, the defendants have not provided any support of their claims that the defendants did not possess a sufficiently culpable state of mind as to show that there are no genuine issues of material fact.
Thus, the court finds that there remain genuine issues of material fact as to whether the defendants acted with deliberate indifference to the plaintiff’s safety.
III
CONCLUSION
For the stated reasons, the court finds that the plaintiff’s claims for conduct occurring prior to September 11, 2012 are barred by the three-year statute of limitations. Additionally, the plaintiff’s claims for monetary damages on state law claims and relief for his missing sneakers are barred on the grounds that the plaintiff failed to first receive authorization from the claims commissioner to file suit and he failed to exhaust his administrative remedies, respectively. The court reiterates that the plaintiff abandoned any official capacity claims that he had against the defendants at the June 29, 2018 hearing.
The defendants’ motion for summary judgment is denied as to conduct occurring after September 11, 2012. This includes the following claims: the plaintiff’s claims of intimidation, retaliation and harassment contained in count one regarding the defendants’ alleged refusal to address the housing situation at CCI on December 4, 2012; the plaintiff’s claims of deliberate indifference, wantonness and maliciousness in count two regarding the defendants’ conduct during the December 4, 2012 incident; and the plaintiff’s claims for intentional and negligent infliction of emotional distress as contained in counts three and four.
So ordered.