Opinion
NNHCV175038715
09-05-2018
Ian WRIGHT v. James DZURENDA et al.
UNPUBLISHED OPINION
OZALIS, J.
I.
FACTUAL AND PROCEDURAL HISTORY
On July 24, 2017, the plaintiff, Ian Wright, filed a three-count complaint against former Commissioners of the Department of Correction James Dzurenda and Leo Arnone, current Commissioner Scott Semple, and state marshal Steven Pichiarallo. According to the complaint, the Department of Correction provided the plaintiff with insufficient access to a typewriter and to notarial services in violation of his right of access to the courts under the provisions of due process clause, the equal protection clause, the privileges and immunities clause of Article IV, and the first amendment of the United States Constitution. Counts one and two alleged that the defendants Dzurenda, Arnone, and Semple ("defendants") knew or should have known that his rights were violated by the policies of the Department and the practices of Department staff. On October 23, 2017, the defendants filed the present motion to dismiss with accompanying memorandum in support, challenging the subject matter jurisdiction of the court to hear the plaintiff’s claims in counts one and two. The plaintiff filed an objection to the defendants’ motion on November 17, 2017, with an accompanying memorandum and affidavit containing exhibits. The present motion was argued before the court on June 28, 2018.
This court is aware of the plaintiff’s self-represented status and takes the same into consideration. "Although [this court] will not entirely disregard our rules of practice, [it does] give great latitude to pro se litigants in order that justice may both be done and be seen to be done ... For justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can [this court] disregard completely our rules of practice." (Internal quotation marks omitted.) Shobeiri v. Richards, 104 Conn.App. 293, 296, 933 A.2d 728 (2007).
The plaintiff has filed multiple amended complaints since the defendants filed their motion to dismiss. Because the jurisdiction of the court has been questioned by the present motion to dismiss, filed on October 23, 2017, the court must resolve that issue before considering any further motions, including motions to amend the complaint. "Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." Federal Deposit Ins. Corp. v. Peabody N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); see also, e.g., D’Attilo v. Statewide Grievance Committee, 329 Conn. 624, 636 (2018) (same). Accordingly, the court takes the original complaint as the operative complaint for the present motion.
Whereas the present motion to dismiss does not concern the counts against the defendant Pichiarallo, this memorandum will hereinafter refer to the defendants Dzurenda, Arnone, and Semple as "the defendants."
II.
DISCUSSION
The defendants have moved to dismiss counts one and two of the complaint under the doctrine of sovereign immunity, which defendants argue deprives the court of jurisdiction over the plaintiff’s claims in those counts. The defendants’ application of sovereign immunity rests on three grounds: (1) the alleged harms denying the plaintiff’s access to the courts are not ongoing, and, therefore, there is no means of providing prospective relief for the plaintiff; (2) money damages are inappropriate in an action against the defendants exercising their official capacities; and (3) the defendant lacks standing in count two because he has failed to allege any injury as a result of his claims. The plaintiff contends: (1) the harms created by the denial of his right to access the courts are ongoing; (2) he is only seeking injunctive relief against the defendants in their official capacities; and (3) that he does not lack standing in count two because he has suffered actual injury due to his limited access to notarial services.
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "[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). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015). "[W]hen sovereign immunity is claimed as a defense to a cause of action pursuant to § 1983, federal sovereign immunity jurisprudence preempts analysis under state law." Sullins v. Rodriguez, 281 Conn. 128, 133, 913 A.2d 415 (2007).
In the present case, the plaintiff alleges injuries caused by the defendants in both their official and their individual capacities. However, because § 1983 jurisprudence requires consideration of very different factors in each capacity, this court will consider the allegations in counts one and two first as against the defendants in their official capacities and then as against the defendants in their individual capacities.
A. Official Capacities- Prospective Relief
In the defendants’ motion to dismiss, the defendants contend that the doctrine of sovereign immunity denies jurisdiction to the court in the present action. "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends ... The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property." (Internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 396-97, 968 A.2d 416 (2009).
An action brought against state officials in their official or individual capacities, however, may overcome sovereign immunity under the provisions of 42 U.S.C. § 1983. "[A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State." (Internal quotation marks omitted.) Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n.10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). "[A] suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally." Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999).
42 U.S.C. § 1983 provides, in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of 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 in redress."
In considering the allegations of the complaint against the defendants in their official capacities, the court must first determine as a threshold matter whether the defendants are state officials exercising any official capacity. Although the parties have not raised this issue, because it implicates the court’s subject matter jurisdiction, the court is compelled to consider the issue at its own initiative. "[W]ith respect to the propriety of a reviewing court raising and deciding an issue that the parties themselves have not raised, that the reviewing court ... must do so when that issue implicates the court’s subject matter jurisdiction." Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 128, 84 A.3d 1196 (2014).
The complaint as pleaded does not allege that defendants Dzurenda and Arnone are currently officials of the State of Connecticut, and, therefore, no action can be brought against them in their official capacities. "[A]ctions involving claims for prospective declaratory or injunctive relief are permissible provided the official against whom the action is brought has a direct connection to, or responsibility for, the alleged illegal action." (Internal quotation marks omitted.) Davidson v. Scully, 148 F.Supp.2d 249, 254 (S.D.N.Y. 2001), aff’d, 120 Fed.Appx. 393 (2d Cir. 2005). Accordingly, the counts against defendants Dzurenda and Arnone in their official capacities are dismissed, leaving allegations in counts one and two against them only for conduct in their individual capacities.
The only defendant who is currently a state official with supervisory authority over the plaintiff is the defendant Semple, who is the current Commissioner of Correction for the State of Connecticut. The court will, therefore, consider the motion to dismiss as it relates to official capacities only as it concerns the defendant Semple. The defendant Semple argues that the first and second counts of the complaint should be dismissed because the plaintiff only alleges the denial of the plaintiff’s access to the courts in completed court actions, rendering impossible any prospective relief. The plaintiff responds that the policies causing his injury "did and continue to deny him access to the court" and that "[i]t cannot be said that the plaintiff will not be denied adequate access to a typewriter or adequate notarial service by the defendants in the future, therefore, a declaratory judgment should be granted." Pl.’s Memo in Supp. of Obj., 2-3.
The plaintiff’s claims in counts one and two allege the denial of the plaintiff’s right under the United States constitution of access to the courts. It is well established that prisoners have a constitutional right of access to the courts that must be adequate, effective, and meaningful. See Sadler v. Commissioner of Correction, 100 Conn.App. 659, 661, 918 A.2d 1033, cert. denied, 285 Conn. 901, 932 A.2d 593 (2007); see also Bounds v. Smith, 430 U.S. 817, 821-22, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). At its base, a claim alleging the violation of the right of access to the courts requires a showing of two elements: "a plaintiff must show that the defendant’s conduct was deliberate and malicious, and that the defendant’s actions resulted in actual injury to the plaintiff." Banks v. County of Westchester, 168 F.Supp.3d 682, 692 (S.D.N.Y. 2016). Once the elements of that constitutional violation have been established, only an ongoing violation of federal law can provide the plaintiff with standing to bring an action seeking prospective relief. "In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." (Emphasis added; internal quotation marks omitted.) Verizon Maryland Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002).
As the plaintiff notes in his objection, he enjoys no freestanding constitutional right to a typewriter. See, e.g., Taylor v. Coughlin, 29 F.3d 39, 40 (2d Cir. 1994) (there is "no constitutional right to a typewriter as an incident to the right of access to the courts"). As required by Practice Book § 67-2, however, the Appellate Court requires typewritten briefs. Likewise, some court documents require notarial certification. The plaintiff argues, therefore, that his rights to adequate access to a typewriter and notarial services are implicated in his right of access to the courts. The plaintiff does not allege, however, that he currently has any actions pending before the Appellate Court, meaning that his constitutional rights are not currently being violated in any case, and the plaintiff’s assertion that he may be denied access to a typewriter or notarial services in the future is a harm too speculative to provide him with standing now. As the complaint has been plead, the plaintiff lacks standing to bring the claims in counts one and two against the defendant Semple in his official capacity. "[B]ecause the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss." Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012).
Practice Book § 67-2 provides, in relevant part: "Briefs and appendices shall be typewritten or clearly photocopied from a typewritten original on white 8 1/2 by 11 inch paper."
The court notes that the plaintiff did not assert that his case remains viable under the "capable of repetition but evading review" exception, which applies to mootness, not standing. "In general, a case becomes moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome ... We have recognized an exception to the general rule in cases that are ‘capable of repetition, yet evading review.’ ... In the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine was limited to the situation where two elements combined: (1) the challenged action was, in its duration, too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." (Citations omitted; internal quotation marks omitted.) Murphy v. Hunt, 455 U.S. 478, 481-82, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982); see also Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 191, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ("if a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of repetition yet evading review will not entitle the complainant to a federal judicial forum").
Accordingly, counts one and two of the complaint seeking prospective relief against the defendants in their official capacities are dismissed.
B. Official Capacities- Money Damages
The defendants have also moved to dismiss counts one and two of the complaint on the ground that it is unclear whether the plaintiff seeks money damages against the defendants in their official capacities and as a matter of law such recovery is prohibited. It is firmly established that no § 1983 action brought against state officials in their official capacities may seek money damages. See, e.g., Braham v. Newbould, 160 Conn.App. 294, 308, 124 A.3d 977 (2015) ("A state official sued in his official capacity for monetary damages is also not subject to suit under § 1983"). As the plaintiff notes in his objection, "The plaintiff’s claim[s] against the defendants in their ‘official capacities’ seek injunctive and declaratory relief," not money damages. The plaintiff further acknowledged during oral argument on the present motion that he was not seeking money damages against the defendants for actions pursued in their official capacities. In light of clear law barring the recovery of money damages against officials for conduct in their official capacities, and the plaintiff’s clear position that he is not seeking money damages from the defendants in their official capacities, this issue is moot and requires no action from this court.
C. Individual Capacities- Money Damages
Although money damages are not available against the defendants in their official capacities, the plaintiff’s claims for money damages do relate to the claims he brought against the defendants in their individual capacities.
To establish a claim against state officials in their individual capacities brought under § 1983, the plaintiff must overcome the doctrine of 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." (Internal quotation marks omitted.) Braham v. Newbould, supra, 160 Conn.App. 301. Although the defendants have not challenged in their motion to dismiss counts one and two, claims brought against them in their individual capacities, because qualified immunity implicates subject matter jurisdiction, the court is required to consider this issue as well at this time. Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 128.
"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." Ashcroft v. Al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). In the present action, the plaintiff does not allege conduct on the part of the defendants that violates clearly established law protecting his right of access of the courts. "Insofar as the right [of access to the courts] vindicated by Bounds is concerned, meaningful access to the courts is the touchstone ... and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program [or typewriter access] hindered his efforts to pursue a legal claim." (Citation omitted; internal quotation marks omitted.) Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The plaintiff asserts that his actions before the Appellate Court suffered as a result of inadequate access to a typewriter, but has not described what sufficient access would entail, nor has he explained how this allegedly limited access caused his actions to fail. In the second count, the plaintiff does not assert that he has suffered an actual injury concerning notarial services beyond an unwelcome delay in access to the services. "Mere delay in being able to work on one’s legal action or communicate with the courts does not rise to the level of a constitutional violation." (Internal quotation marks omitted.) Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003).
Additionally, the plaintiff "must show that the defendant’s conduct was deliberate and malicious" in causing his injury. Banks v. County of Westchester, supra, 168 F.Supp.3d 692. In the present action, the plaintiff has failed to demonstrate that the defendants acted deliberately or maliciously. Indeed, the correspondence submitted with plaintiff’s objection to this motion to dismiss demonstrates that personnel under the defendants’ supervision attempted multiple times to address his concerns by increasing his access to a typewriter.
Having failed to demonstrate how his right of access to the courts was violated, the plaintiff has failed to overcome the doctrine of qualified immunity as against the defendants in their individual capacities. "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Braham v. Newbould, supra, 160 Conn.App. 302.
Accordingly, counts one and two as against the defendants in their individual capacities are dismissed.
CONCLUSION
Based on the foregoing, counts one and two of the complaint are dismissed in their entirety.