Opinion
No. CV 09 4009523
February 3, 2010
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS [103, 122]
The petitioner, Sylvester Traylor, seeks a writ of mandamus. Mr. Traylor is the plaintiff in a medical malpractice action pending in this court. See Sylvester Traylor, Administrator of the Estate of Roberta Mae Traylor v. Bassam Awwa, M.D. et al., CV 06 5001159S. In the medical malpractice action, Mr. Traylor is a plaintiff as the administrator of the estate of his late wife. He is also a plaintiff in his individual capacity; he claims a loss of consortium.
In this mandamus action, the respondent is "The Honorable Chief Court Administrator Justice Barbara Quinn, on behalf of the New London District Superior Court of Connecticut, located at 231 Capitol Ave Hartford, CT 06106." Amended Writ of Mandamus, August 12, 2009, ¶ 4.
231 Capitol Ave., Hartford is the location of the Chief Court Administrator's office.
In his complaint herein, which he captioned "Amended Writ of Mandamus," petitioner Traylor states: ". . . the Petitioner, Sylvester Traylor, in case number # CV-06-50011595, at all times hereinafter mentioned, has been the duly appointed and qualified administrator of the estate of the late, Roberta Roberta Mae Traylor, the Petitioner's wife." Amended Writ of Mandamus, August 12, 2009, ¶ 1.
Mr. Traylor is not an attorney. Nevertheless, he has been representing the estate of his late wife in the malpractice case. However, on December 21, 2009, the court ordered that Mr. Traylor may no longer represent the estate. Sophie Ellis (Executrix of the Estate of Jane Huberman) v. Jeffrey Cohen, 118 Conn.App. 211 (December 1, 2009). Mr. Traylor was given until April 21, 2010 to have an attorney enter an appearance for the estate. If an attorney does not appear on behalf of the estate by that date, the action on behalf of the estate will be dismissed.
The respondent Awwa is a psychiatrist practicing at the respondent Connecticut Behavioral Health Associates P.C. in New London. Petitioner's wife, Roberta Mae Traylor, was a patient of Dr. Awwa. Amended Writ of Mandamus, August 12, 2009, ¶ s 6-8.
In his complaint in this mandamus action, petitioner alleges in part:
9. The Petitioner has a legal interest in the act of the Second Respondents in case number CV-06-50011595, to perform duty of the late Honorable Judge Hurley's discovery orders hereto attached marked Exhibit "A." (In the table of contents hereto attached the Petitioner has outlined each of Judge Hurley's outstanding orders.) The petitioner does hereby move the above First Respondent, The Honorable Chief Court Administrator Justice Barbara Quinn, to compel the New London District Court to enforce the late Honorable Judge Hurley's Orders, and reinstate a Default Judgment against the Second Respondents, for the following reasons:
10. The New London District Court judges continue to reopen defaults and ignore the Second Respondent's, counsel continual failure to appear for scheduled hearings while the Second Respondents remains in default for failure to file an answer to Judge Hurley's Orders. The Pro Se, Petitioner contention is that he has been substantially prejudiced against because of his Pro Se status as a litigant which is a violation of his Equal Protection Rights, under the 14th Amendment of the U.S. Constitution (Due Process). As a Pro Se litigant, the Petitioner would not have been given ten 10 unprecedented opportunities to file an answer to any order of court.
Amended Writ of Mandamus, August 12, 2009, ¶ s 9-10, p. 2.
In his Prayer for Relief, petitioner Traylor asks, among other things —
2. The Petitioner does hereby moves the above First Respondent, The Honorable Chief Court Administrator Justice Barbara Quinn, to compel the New London District Court to enforce the late Honorable Judge Hurley's Orders, and reinstate a default judgment. See entry 211.
3. The Petitioner does hereby request, a hearing on damages to be rescheduled, so that the Petitioner may resume his due process rights and seeking judicial remedies to the medical malpractice upon the Petitioner's deceased wife, Roberta Mae Traylor.
Amended Writ of Mandamus, August 12, 2009, Prayer for Relief, ¶ s 2-3, p. 11.
Now before the court, are the respondents' motions to dismiss. Defendant's Motion to Dismiss, July 17, 2009, [103] and Defendants' Connecticut Behavioral Health Associates, P.C. And Bassam Awwa, M.D.'s Motion to Dismiss, October 2, 2009. [122].
In each of their motions to dismiss, the respondents claim that mandamus does not lie where there is a right of appeal regarding the complained of actions.
The nature of mandamus is unusual:
"Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Citations omitted; internal quotation marks omitted.) Miles v. Foley, supra, 54 Conn.App. [645,] 653 [(1999)]. Miles v. Foley, 253 Conn. 381, 391 (2000).
Petitioner Traylor asks this court to issue a writ of mandamus against the Chief Court Administrator requiring the Chief Court Administrator to require New London judges to change decisions those judges have made in the malpractice case. As the court understands the issue, Judge Hurley entered discovery orders requiring the malpractice defendants to disclose certain materials and information to the plaintiff. Plaintiff maintains the defendants have not complied with Judge Hurley's orders. Plaintiff moved in the malpractice case to have Judge Hurley's orders enforced. One or more New London judges have held that the malpractice defendants were not in violation of the Judge Hurley's orders. What petitioner Traylor seeks in this mandamus action is to have this court order the Chief Court Administrator to order the New London judges to change their decisions and find that the malpractice defendants are in violation of Judge Hurley's orders.
The Chief Court Administrator does not have the authority to do what the Petitioner seeks. Hartford Courant Company v. Pellegrino, 380 F.3d 83 (2 Cir. 2004), involved judicial orders sealing court files. The Second Circuit held that the Chief Court Administrator did not have the .authority to unseal files which had been sealed judicially, i.e., by judges.
It is true, however, that neither the Chief Court Administrator nor the Chief Justice are vested, in their administrative capacity, with the authority to overturn orders issued by other judges or to open statutorily sealed files. They are, therefore, not able to provide relief to the plaintiffs insofar as that relief would require them to grant access to documents that are sealed by statute or judicial order.
Hartford Courant Company v. Pellegrino, 380 F.3d 83, 97 (2 Cir. 2004).
Our Supreme Court has said the discretionary authority of the Chief Court Administrator "although broad, is not unbridled." Pamela B. v. Ment, 244 Conn. 296, 318 (1998). That case involved the lengthy delays occurring when children were removed from their parents' custody by the defendant commissioner of children and families. It was claimed that the parents were being denied their right to a timely evidentiary hearing to challenge the state's basis for the removal orders. The delays, it was claimed, were caused by the inadequate number of judges assigned to hear Juvenile Matters. Among other claims for relief, plaintiff sought an order directing the Chief Court Administrator to allocate sufficient resources to the Superior Court for Juvenile Matters so as to eliminate the lengthy delays. The Supreme Court agreed with the plaintiff that the Chief Court Administrator "cannot formulate or interfere with the rules of practice and procedure that directly control the conduct of particular litigation." Pamela B. v. Ment, 244 Conn. 296, 326 (1988).
Hartford Courant Company and Pamela B. inform that the Chief Court Administrator cannot, and does not have the power to, interfere with judicially imposed orders. No law imposes on the Chief Court Administrator a mandatory and non-discretionary duty to order the New London Superior Court judges to take certain actions in Petitioner's malpractice action.
What petitioner seeks from the Chief Court Administrator calls upon the exercise of her discretion. The need for her to exercise her discretion negates issuance of a writ of mandamus. Mandamus may be invoked only when the officer to whom the writ would run has failed to take action mandated by law.
Finally, both motions to dismiss now before the court are primarily based on the proposition that mandamus does not lie in this case because the questioned judicial orders in the malpractice case are reviewable on appeal. Respondents correctly rely upon Huggins v. Mulvey, 160 Conn. 559 (1971). The Supreme Court stated in Huggins —
Nor is mandamus a proper remedy where, in regular course, a lower court's decision may be reviewed upon appeal. See Maryland v. Soper, 270 U.S. 9, 29, 46 S.Ct. 185, 70 L.Ed. 456. Neither mandamus nor a writ of prohibition is warranted in situations in which the right of appeal from the action complained of exists. Ex parte United States, 263 U.S. 389, 393, 44 S.Ct. 130, 68 L.Ed. 351; Ex parte Tiffany, 252 U.S. 32, 37, 40 S.Ct. 239, 64 L.Ed. 443; see Ex parte Muir, 254 U.S. 522, 534, 41 S.Ct. 185, 65 L.Ed. 383.
The petition which the plaintiffs seek permission to file makes no allegation whatever that the Superior Court lacks jurisdiction in any of the matters complained of nor, indeed, is there any basis for such an allegation. The action of the court in all of the matters which are complained of could properly be made an issue in an appeal from the final judgment. The plaintiffs' rights are fully protected by the remedy of appeal which is open to them at the conclusion of the case now pending in the Superior Court./f Huggins v. Mulvey, 160 Conn. 559, 561 (1971).
Petitioner Traylor does not claim that any of the orders in the malpractice action cannot be the subject of an appeal once the malpractice action has been concluded. Those orders may be reviewed upon appeal. Therefore, mandamus does not lie.
For the foregoing reasons, the motions to dismiss are granted.
On December 21, 2009, the court ordered that the parties and counsel were to take no further action in these cases until counsel appeared for the estate. The court ordered that no filings be made in these cases and, if anything was submitted for filing the clerk would return it without filing same.
If any party desires to appeal the decision made herein, that party may do so and the no filing restriction shall not apply with respect to filings for the appeal.