No. CV 0404890
November 22, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS INMATE'S ACTION AS VIOLATIVE OF, INTER ALIA, POLICY OF EXHAUSTION OF REMEDIES AND SOVEREIGN IMMUNITY.
Plaintiff Peter Ventura, an inmate at the Connecticut Department of Corrections (hereafter Department), brings this lawsuit in two counts. In the first count the plaintiff alleges that the Department has caused his "exercise of religion to be burdened by the denial of free/donated religious materials of the Christian faith from reliable and legitimate sources . . . while allowing free/secular materials to reach inmates . . ."
In the second count, the plaintiff alleges that the Department "has burdened [his] exercise of religion by threats of disciplinary action if [he] preaches, teaches or fellowships in the Christian faith in any prison recreational day room or yard even though other inmates are approved to use said same areas for card games, dominoes, chess games . . ." and the enjoyment of other secular materials.
The plaintiff asserts that the complained of practices of the Department violate Connecticut General Statute 52-571b which states, inter alia, the following:
The state or any political subdivision of the state shall not burden a person's exercise of religion . . . except
(b) [t]he state . . . may burden a person's exercise of religion only if it demonstrates that application of the burdened to the person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.
This statute provides further that "[a] person whose exercise of religion has been burdened . . . may assert that violation as a claim . . . in a judicial proceeding and obtain appropriate relief against the state . . ." Sec. 52-571b(c)
As for relief, the plaintiff seeks a declaratory judgment stating that the aforesaid practices and policies are a violation of Connecticut General statutes Section 52-571b, and as such illegally burden his exercise of religion. The plaintiff also requests this court to issue an injunction prohibiting the Department from taking such actions as alleged. The plaintiff also seeks compensatory monetary damages in the amount of one dollar for himself and punitive damages in the amount of $2099 to be paid to a nonprofit organization.
The Department responds by arguing that the plaintiff has failed to exhaust his administrative remedies, and that his claims are barred by the doctrine of sovereign immunity. The Department further argues that it recognizes the plaintiff's right to religious expression by allowing him to have religious materials, and attend religious gatherings that are supervised by ministers or other religious authorities under the direction of the Department. It claims that for security reasons it cannot allow inmates to run their own religious services.
I. Count One: Religious Burden Re Denial of Publications Exhaustion of Administrative Remedies
In his memorandum in opposition to the Motion to Dismiss the plaintiff claims that the Department burdens his religion by disallowing him to receive fundamentalist Baptist Bible-related publications. The regulations of the Department provide a mechanism for the plaintiff to have appealed the rejection of any publications sent to him from outside the facility. Subsection c of Regulation 18-81-39 states the following:
Notice of Rejection. Where a publication is found unacceptable, the Unit Administrator shall promptly advise the inmate in writing of the decision and the reasons for it . . . The inmate shall be allowed to appeal to the Commissioner or designee within 15 days of receipt of the rejection letter.
Certainly, the lack of exhausting administrative remedies is an appropriate basis for challenging legal standing to bring or maintain a lawsuit. Pet v. Department of Health Services, 207 Conn. 346 (1988). However, in his memorandum in opposition to the Motion to Dismiss the plaintiff cites several letters to the Department which he characterizes as showing his exhaustion of its administrative remedies concerning his requested publications.
The Issue of Sovereign Immunity
The Department argues that the "appropriate relief" contemplated by Connecticut General statutes Section 52-571b(c) is injunctive relief and not monetary damages, and that to the extent that the plaintiff seeks monetary damages he is barred from doing so by the doctrine of sovereign immunity. Nevertheless, the State of Connecticut through the action of the Legislature has passed a statute by which it has authorized a procedure for seeking its consent to be sued.
Section 4-160(a) of the Connecticut General Statutes provides that "[w]hen the Claims Commissioner [of the State of Connecticut] deems it just and equitable, he may authorize suit against the state on any claim which in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable."
The plaintiff responds to the defense of sovereign immunity by stating in his objection that he withdraws any claim for monetary damages.
II. Count Two: Religious Burden Re Denial of Preaching; Leading Religious Gatherings in Recreational Areas
As stated above, the plaintiff claims that the Department is burdening his religion by prohibiting him from preaching, teaching or in that way associating with inmates in the recreational day room or yard while allowing other inmates to engage in secular activities (e.g. playing card games, etc.) in those physical areas. The Department cites the case of Benjamin v. Coughlin, 905 F.2d 571 (2d Cir. 1989), as standing for the proposition that the Second Circuit, which includes Connecticut, approves department regulations that limit group prayer sessions to those which can be supervised by religious officials authorized by the department. The Department also points out that its practices allow penal religious services that are conducted by authorized religious officials. Accordingly, the Department argues that it complies with mandated constitutional standards while safeguarding itself and other inmates against situations in which unfettered freedom of expression in recreational areas may be misused to foment illegal plans and/or dangerous activities.
In response the plaintiff argues that the Department previously allowed him to engage in proselytizing activities. He further claims that the defendant burdens his exercise of religion by disallowing him to take his Bible into a recreational area for his personal use. The latter point clearly is worthy of judicial review.
Denial of Motion to Dismiss
Inasmuch as the plaintiff asserts that he has complied with the principle of administrative exhaustion, and he claims that the Department is denying him the right to have his Bible for his use during the recreational period when other inmates are allowed to use secular materials, the court finds that it is appropriate to determine whether the plaintiff's exercise of religion has been burdened, as this concept is embraced within Section 52-571b.
Accordingly, the Motion to Dismiss is denied.
Clarance J. Jones, Judge