Opinion
HHBCV145016058S
12-23-2015
John Kaminski v. Lynn Milling et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (158.00, 161.00)
Robert E. Young, Judge.
FACTS AND PROCEDURAL HISTORY
In his amended complaint dated March 3, 2015 but filed March 5, 2015, the plaintiff, an incarcerated prisoner, seeks remedies against the defendants concerning legal representation or access to the courts; medical care and treatment; and his transfer from one correctional facility to another. The defendants are current or former employees of the State of Connecticut: Lynn Milling, former director of the Office of Classification and Population Management; Leo Arnone, former commissioner of the Department of Corrections (the department); Shanon Beckford, a registered nurse and employee of Correctional Managed Health Care; and Vanoun De Hove, a captain employed by the department.
Count one claims " Denial of Meaningful Access to the Courts, " and appears to allege the denial of the federal constitutional right of access to the courts. The count alleges the following relevant facts. During Arnone's tenure to the present time, the department entered into a contract with Sydney T. Schulman, d/b/a Schulman and Associates, d/b/a Inmate Legal Assistance Program (ILAP), to provide federally mandated legal assistance to all inmates. Arnone has failed to ensure that this contract with the ILAP effectively provides inmates with meaningful access to the courts. The plaintiff has commenced a separate action against Schulman and the ILAP to force compliance with federal law. However, because Schulman and the ILAP are defendants in the other action, there is a conflict of interest which bars them from representing the plaintiff in the present action. Furthermore, Arnone has declined to appoint other private counsel to the plaintiff, as permitted by contract, and has even advised that his institutions should no longer provide inmates with any legal material or any form of legal assistance. As a result, the plaintiff has been denied meaningful access to the courts, and the plaintiff has been forced to file the present action pro se.
In enumerating his counts, the plaintiff has failed to comply with Practice Book § 10-26.
The plaintiff cites to Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), overruled in part by Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), and Lewis v. Casey, supra, 518 U.S. 343.
Count two claims " plain and simple negligence." Count two incorporates the allegations in count one, and further alleges the following relevant facts. The plaintiff has had a medical condition which began in 2004, with symptoms of back pain and numbness on one side of the body. In December 2011, the plaintiff was working in the commissary at the MacDougall-Walker Correctional Institution (MacDougall-Walker), when he experienced chronic nerve pain, and fell to the floor. For the next ninety days, the medical department would evaluate him routinely, conducting tests and taking x-rays. On April 9, 2012, the plaintiff could no longer walk, and was admitted to the prison hospital ward for evaluation. On April 17, 2012, a prison nurse harassed the plaintiff into walking. The plaintiff was only able to walk the length of the hallway with a wheeled walker and assistance from a nursing assistant. That same day, the plaintiff was transferred to Corrigan Radgowski Correctional Center (Corrigan), and placed in a nonmedical cell. The plaintiff could not walk to the medicine line, and had to forego medication, and even showering. Beckford, Milling and Arnone acted negligently in authorizing the transfer of the plaintiff when he was hospitalized at MacDougall-Walker, unable to walk. In addition, Milling, Arnone and De Hove acted negligently in authorizing the transfer, which was a " swap" because another inmate, James Biggs, was being transferred from Corrigan to MacDougall-Walker " as a matter of convenience, not necessity."
The plaintiff alleges that it was later diagnosed as stenosis and nerve damage.
Referred to only as " Paula."
Count three is a claim of " Deliberate Indifference, " which appears to allege the violation of the eighth amendment to the United States Constitution, namely, the infliction of cruel and unusual punishment arising out of alleged inadequate medical care. Count three incorporates the allegations in count one and count two, and further alleges that Beckford, Milling and De Hove acted with deliberate indifference in authorizing the transfer from the medical ward at MacDougall-Walker to the general population at Corrigan, even though the plaintiff could not walk. The plaintiff also alleges that Milling acted with deliberate indifference by authorizing " swap" for inmate Biggs without regard for the plaintiff's medical needs, condition, and prognosis.
The plaintiff does not cite to the eighth amendment, but the allegations, viewed in a light most favorable to the plaintiff may be interpreted to allege such a claim. In addition, the defendants have viewed the claim as such, and the plaintiff has not indicated that this is an incorrect interpretation Finally, it is presumed that the plaintiff is not attempting to bring a tort claim as Connecticut has yet to recognize a common-law tort for " deliberate indifference."
Count three does not allege any misconduct as to Arnone.
On August 21, 2015, the defendants filed a motion for summary judgment (158.00). In support, the defendants submitted various documents, including: a letter announcing that the law firm Bansley & Anthony will be running the Inmate Aid Program; the transcript from the July 14, 2015 deposition of the plaintiff; copies of the plaintiff's relevant medical records; and an affidavit of Rikel Lightner, a registered nurse. On September 14, 2015, the plaintiff filed an objection to the motion for summary judgment (162.00). In support, the plaintiff submitted numerous documents, including notice or correspondence regarding various complaints and claims against state employees and ILAP counsel. On the same day, the plaintiff filed his own motion for summary judgment (161.00), as well as a response to the affidavit of Lightner. These matters were heard at short calendar on October 26, 2015.
Each party has attached to their submissions uncertified and unauthenticated documents. Although each party has failed to comply with Practice Book § 17-45, they agreed at oral argument that the court should consider the other's submissions. Therefore, the court will consider these submissions as if they were properly certified and authenticated. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006); but see Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012). However, the court does not consider as evidence submissions which would properly be admissible only upon the taking of an oath. Such submissions are noted in the body or footnotes of this memorandum.
The handwritten documents submitted by the plaintiff include many complaints and factual allegations that are outside the scope of the present complaint. More importantly, the allegations in these documents were not made under oath by the plaintiff and are not admissible as evidence. Therefore, the court does not consider them. Practice Book § 17-46.
ANALYSIS
I
Defendants' Motion for Summary Judgment (158.00)
The defendants move for summary judgment on the ground of lack of subject matter jurisdiction. More specifically, as to count one, the defendants argue that the claim for denial of access to the courts is now moot because the alleged shortcomings in providing legal services have been addressed by retaining new counsel. Furthermore, as to all three counts, the defendants contend that sovereign immunity applies to the official capacity claims, and that statutory immunity applies to any claims against the defendants in their individual capacity. Finally, the defendants argue that, even if the court finds that it has subject matter jurisdiction, summary judgment should be granted on the merits as to count one, denial of access to the courts, and count three, " deliberate indifference."
The plaintiff objects as to all grounds raised by the defendants. As to mootness, the plaintiff argues that his claim in count one is that the defendants have not provided adequate legal assistance, and that the claim is not moot simply because the attorneys have been replaced with different counsel. The plaintiff also argues that his claims are not barred by sovereign or statutory immunity, and that the defendants have not met their burden on the merits.
A
Subject Matter Jurisdiction
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " A motion to dismiss properly attacks the jurisdiction of the court . . . and mootness implicates a court's subject matter jurisdiction." (Citation omitted.) We the People of Connecticut, Inc. v. Malloy, 150 Conn.App. 576, 581-82 n.3, 92 A.3d 961, cert. denied, 314 Conn. 919, 100 A.3d 850 (2014).
Furthermore, " [c]laims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). Accordingly, " a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).
In addition, the doctrine of federal qualified immunity also implicates the court's subject matter jurisdiction, and is a proper ground for the motion to dismiss. Chapman v. Chapdelaine, Superior Court, judicial district of Tolland, Docket No. CV-12-5005693-S (October 17, 2013, Graham, J.) (56 Conn. L. Rptr. 932, 933), citing Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011), and Tuchman v. State, 89 Conn.App. 745, 747, 763, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). See also Miller v. Arnone, Superior Court, judicial district of New Haven, Docket No. CV-13-5034503-S (January 30, 2015, Wilson, J.); Brahm v. Newbould, Superior Court, judicial district of New Haven, Docket No. CV-12-5034199-S (December 26, 2012, Zemetis, J.); Brody v. Arnone, Superior Court, judicial district of Hartford, Docket No. CV-11-5035229-S (June 2, 2011, Domnarski, J.).
Thus, although the defendants have moved for summary judgment, the motion to dismiss standard will be applied to all issues regarding subject matter jurisdiction, including mootness, sovereign immunity, statutory immunity, eleventh amendment immunity, and qualified immunity. See generally Sethi v. Yagildere, 136 Conn.App. 767, 770 n.6, 47 A.3d 892, cert. denied, 307 Conn. 905, 53 A.3d 220 (2012) (" although the use of a motion for summary judgment may be a proper vehicle to raise issues of subject matter jurisdiction in some cases . . . generally, [t]he proper procedural vehicle for disputing a party's standing is a motion to dismiss . . . We see no reason to deviate from the general practice in the present case. Consequently, we treat the defendant's motion for summary judgment as a motion to dismiss." [Citations omitted; internal quotation marks omitted.])
" 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.) Id., 651.
" In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 651-52.
" Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). " [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). Nevertheless, 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.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).
i
Mootness (Count one)
" Mootness is a question of justifiability that must be determined as a threshold matter because it implicates [the] court's subject matter jurisdiction . . ." (Internal quotation marks omitted.) Valvo v. Freedom of Information Commission, 294 Conn. 534, 540, 985 A.2d 1052 (2010). " Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties." (Internal quotation marks omitted.) Wilcox v. Ferraina, 100 Conn.App. 541, 547, 920 A.2d 316 (2007). " The test for determining mootness is whether a judgment, if rendered, would have any practical legal effect upon an existing controversy. Thus, the central question in a mootness problem is whether a change in the circumstances that prevailed at the beginning of the litigation has forestalled the prospect for meaningful, practical, or effective relief." Statewide Grievance Committee v. Burton, 282 Conn. 1, 13, 917 A.2d 966 (2007).
In count one, the plaintiff has alleged that he has been denied proper access to the court because of insufficient legal services that were provided by Schulman and Associates. The plaintiff has also alleged that there is a conflict of interest because he has sued Schulman, and Arnone has failed to provide him with other counsel.
The defendants argue that the plaintiff's claim is now moot because the department has not renewed its contract with Schulman and Associates. The department has entered into a contract with the Bansley Law Firm for the provision of legal assistance to inmates, including assistance in the identifying, articulating, researching, and preparing of legal claims with regard to civil matters.
The new contract has rendered the issue regarding the conflict of interest moot. Nevertheless, the change in counsel does not, in itself, provide reasonable assurance that there is no reasonable expectation that the alleged violation may reoccur. The defendants have not provided evidence that would show, in greater detail, how the new counsel will provide for proper access to the courts.
Although not admissible evidence, the plaintiff has stated in his objection that his " request for assistance in directing the State to secure criminal filing in the matter of assault by a Corrections Officers on this Plaintiff on [November] 20, 2014, and/or assisting him in filing a [§ ]1983 Federal Suit, Plaintiff has been ignored by the new contractee . . ."
ii
Eleventh Amendment Immunity (Count One and Count Three)
The plaintiff seeks relief for claims arising under federal law in count one and count three. Any federal claims for monetary damages against the defendants in their official capacities may be barred by eleventh amendment immunity.
Even though the parties did not raise eleventh amendment immunity, the doctrine implicates subject matter jurisdiction, and is addressed sua sponte.
" The elements of, and the defenses to, a federal cause of action are defined by federal law." (Internal quotation marks omitted.) Sullins v. Rodriguez, 281 Conn. 128, 134, 913 A.2d 415 (2007). " [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." Id., 133. " Nevertheless, the Supreme Court has taken the view that Congress did not intend to defeat traditional notions of sovereign immunity in enacting § 1983. Quern v. Jordan, [440 U.S. 332, 341, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)]. Instead, these principles inform the meaning of the term 'person' as used in § 1983." Sullins v. Rodriguez, supra, 140.
Although on the face of the complaint the plaintiff did not bring the present action pursuant to § 1983, the plaintiff seeks monetary damages for the violation of a federal constitutional right. " [U]nder the federal constitution, a claim for monetary damages for an alleged violation of constitutionally guaranteed rights can only be made pursuant to a federal statute such as 42 U.S.C. § 1983 or through a ' Bivens [v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 2001, 29 L.Ed.2d 619 (1971)]-type' analysis." (Footnote omitted.) Tremblay v. Webster, Superior Court, judicial district of New London, Docket No. 530898 (March 1, 1996, Hendel, J.) (16 Conn. L. Rptr. 260, 260). " Section 1983 provides a civil claim for damages against any person who, acting under color of state law, deprives another of a right, privilege or immunity secured by the Constitution or the laws of the United States . . . Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." (Citation omitted.) Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993), cert. denied, 512 U.S. 1240, 114 S.Ct. 2749, 129 L.Ed.2d 867 (1994).
" 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." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 311, 828 A.2d 549 (2003). " [A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office . . . As such, it is no different from a suit against the State itself." (Citation omitted.) Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). " 'A suit generally may not be maintained directly against the State itself, or against an agency or department of the State, unless the State has waived its sovereign immunity.' Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982).
Suits seeking monetary damages may not be brought against the state or its agencies and departments, pursuant to § 1983; rather, only suits for injunctive relief may be maintained against the state. Quern v. Jordan, [ supra, 440 U.S. 338] (1979). State officers acting in their official capacity may, typically, only be sued for injunctive or declaratory relief. Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)." Richards v. Connecticut Dept. of Corrections, 349 F.Supp.2d 278, 288 (D.Conn. 2004).
" The distinction [between official and individual capacity suits] hinges upon from whom the plaintiff seeks a remedy. Official capacity suits seek, in all aspects other than the party named as defendant, to impose liability on the government. Personal capacity suits, in contrast, aim to impose liability directly on officials for actions taken under color of state law." Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 87 (2d Cir. 1991). " [W]hen the face of a complaint fails to state clearly whether a government official is being sued in his official capacity, or his individual capacity, or both, courts look to [t]he course of proceedings to determine the nature of the liability to be imposed." (Internal quotation marks omitted.) Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993), cert. denied, Relin v. Frank, 510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993). As such, under applicable federal law, an action may be brought against the defendants in both the official capacity and the individual capacity. See, e.g., Yorktown Medical Laboratory, Inc. v. Perales, supra, 90. Furthermore, an unambiguous statement in the complaint regarding the capacity in which the defendant is sued may be determinative. See Sullins v. Rodriguez, supra, 281 Conn. 141 (" In this case, the plaintiff's complaint is unambiguous. It states that the defendant 'is sued in his individual capacity.' Such an articulation of the defendant's capacity is sufficient to commence a § 1983 claim against a state officer in his individual capacity.").
The widely cited test set forth in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975), used to determine whether a state action against defendants is in individual or official capacities, is not applicable to § 1983 claims. " [A]lthough the test set forth in Spring [ v. Constantino, supra, 563, ] and Miller [v. Egan, supra, 265 Conn. 301, ] is an appropriate mechanism for our state courts to determine the capacity in which the named defendants are sued in actions asserting violations of state law, to employ that test to divest state courts of jurisdiction to hear otherwise cognizable § 1983 claims would be to erect a constitutionally impermissible barrier to the vindication of federal rights. See Howlett v. Rose, [496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990)]." (Internal quotation marks omitted.) Sullins v. Rodriguez, supra, 281 Conn. 128.
In the present case, both the complaint and summons explicitly specify that the defendants are all sued in both their personal and official capacities. As such, the plaintiff's federal claims in count one and count three are brought in both individual and official capacities.
Because the state has not waived sovereign immunity, the defendants, as state employees, are immune from claims seeking monetary damages resulting from the performance of their official duty. The only remaining issue as to the official capacity claims is whether the defendants are immune from the federal claims seeking injunctive and declaratory relief.
" [U]nder the venerable doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a plaintiff may sue a state official acting in his official capacity--notwithstanding the Eleventh Amendment--for 'prospective injunctive relief' from violations of federal law." In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007). " 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 [1] alleges an ongoing violation of federal law and [2] seeks relief properly characterized as prospective." (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 to the first prong, in determining whether an ongoing violation exists, the court asks, does the enforcement of the law amount to a continuous violation of plaintiffs['] constitutional rights or a single act that continues to have negative consequences for plaintiffs . . . As to the second prong, where the relief requested by a plaintiff is an injunction against state officials, this satisfies the requirement that the relief sought be prospective in nature." (Citation omitted; internal quotation marks omitted.) King v. McIntyer, United States District Court, Docket No. 9:11CV 1457, (N.D.N.Y. February 20, 2014).
The United States Supreme Court has clarified that " the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim." Verizon Maryland, Inc. v. Public Service Commission of Maryland, supra, 535 U.S. 646. Nevertheless, " [w]hen a complaint fails to allege either an ongoing violation of federal law or prospective relief that can be granted by the parties sued, however, the complaint fails to meet the basic pleading requirements of the Ex parte Young exception." Soloviev v. Goldstein, United States District Court, 104 F.Supp.3d 232, (E.D.N.Y. 2015).
Here, the plaintiff explicitly seeks injunctive and declaratory relief. As to count one, the plaintiff alleges that Arnone has failed to ensure that the contract with the ILAP effectively provides inmates with meaningful access to the courts. In addition, the plaintiff alleges that he has filed suit in order to force compliance with federal law that requires the defendants to provide inmates with meaningful access to the courts. As to count three, in the " jurisdiction #3" section of the complaint, the plaintiff alleges that he is requesting declaratory and injunctive relief as to the lack of a policy concerning hospital transfers, which involves all of the defendants.
In the plaintiff's memorandum, presumably as to count three, the plaintiff explains that Former Commissioner Arnone was sued in his official capacity for injunctive and declaratory purposes to address a problem in his administration, namely, to treat the medical needs of inmates as a matter of equal importance as issues regarding safety and security. The plaintiff states that he is asking for injunctive relief in order to resolve this issue so that no other inmate will incur similar harm as the plaintiff did on April 17, 2012.
Based on the foregoing, as to count one and count three, the plaintiff has adequately alleged a continuous violation because the plaintiff seeks to remedy the defendants' policies regarding meaningful access to the courts and the defendants' response to serious medical needs, especially as it relates to hospital transfers. The plaintiff seeks prospective relief because he has requested injunctive relief against the defendants. The plaintiff has satisfied the " straightforward inquiry" of the Ex parte Young doctrine, and the court does not need to reach the merits of the underlying claims. As such, even though the defendants, in their official capacity, are immune from any claims for monetary damages for count one and count three, the defendants are not immune from the plaintiff's claims for declaratory and injunctive relief as to those counts.
iii
Federal Qualified Immunity (Count One and Count Three)
The remaining federal claims against the defendants in their individual capacity, seeking monetary relief, may be barred by qualified immunity. " 'Qualified immunity' protects an official from liability under federal causes of action but is not generally understood to protect officials from claims based on state law." Jenkins v. New York, 478 F.3d 76, 86 (2d Cir. 2007). " [A] claim for qualified immunity from liability for damages under [42 U.S.C.] § 1983 raises a question of federal law . . . and not state law. Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials . . . Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (Citation omitted; internal quotation marks omitted.) Morgan v. Bubar, 115 Conn.App. 603, 625, 975 A.2d 59 (2009). Qualified immunity reflects the " concern that for the public benefit, public officials be able to perform their duties unflinchingly and without constant dread of retaliation." Amore v. Novarro, 624 F.3d 522, 530 (2d Cir. 2010). The standard " is forgiving and protects all but the plainly incompetent or those who knowingly violate the law." (Internal quotation marks omitted.) Id.
Even though the parties did not raise qualified immunity, the doctrine implicates subject matter jurisdiction, and is addressed sua sponte.
" In Saucier [v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)], this Court mandated a two-step sequence for resolving government officials' qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right . . . Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was 'clearly established' at the time of the defendant's alleged misconduct." (Citations omitted.) Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In reconsidering this analysis, the court in Pearson v. Callahan, supra, 223, concluded: " [W]hile the sequence set forth . . . is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id., 236. In interpreting the two-step qualified immunity sequence, the Connecticut Supreme Court stated: " A [governmental] defendant will be entitled to qualified immunity if either (1) his actions did not violate clearly established law or (2) it was objectively reasonable for him to believe that his actions did not violate clearly established law." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 217-18, 9 A.3d 347 (2010).
" In determining whether a particular right was clearly established at the time an official acted, courts typically consider (1) whether the right in question was defined with reasonable specificity; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful." (Internal quotation marks omitted.) Bradway v. Gonzales, 26 F.3d 313, 318 (2d Cir. 1994). The determination of whether the right at issue was clearly established must be undertaken in light of the specific context of the case, not as a broad general proposition. Saucier v. Katz, supra, 533 U.S. 201; see also Zieper v. Metzinger, 474 F.3d 60, 67-68 (2d Cir. 2007) (noting that the qualified immunity analysis must be undertaken in a " particularized" sense). " The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." (Internal quotation marks omitted.) Distiso v. Wolcott, 352 Fed.Appx. 478, 481 (2009), citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Finally, " [q]ualified immunity shields the defendants only from claims for monetary damages and does not bar actions for declaratory or injunctive relief." Adler v. Pataki, 185 F.3d 35, 48 (2d Cir. 1999).
For the reasons that will be addressed in the summary judgment portion of this memorandum (section B), the plaintiff has failed to allege facts that make out a violation of a constitutional right. More specifically, the plaintiff has failed to show that the defendants violated his first amendment right of meaningful access to the courts, or his eighth amendment right to be free from deliberate indifference to his serious medical need. As such, the defendants' actions did not violate clearly established law. At the very least, it was objectively reasonable for the defendants to believe that their actions did not violate clearly established law. Thus, for the foregoing reasons, the defendants are protected in their individual capacity by qualified immunity.
iv
Sovereign Immunity (Count Two)
" 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). " We have long recognized the common-law principle that the state cannot be sued without its consent . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer [or agent] concerning a matter in which the officer [or agent] represents the state is, in effect, against the state . . . Therefore, we have dealt with such suits as if they were solely against the state and have referred to the state as the defendant . . . The doctrine of sovereign immunity protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." (Citation omitted; internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 751, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
" Our Supreme Court . . . has recognized that when an action against the state seeks damages as well as declaratory or injunctive relief, each should be treated separately. See, e.g., Barde v. Board of Trustees, 207 Conn. 59, 60-61, 539 A.2d 1000 (1988) (treating separately plaintiff's claims for injunctive relief, damages; as to damages, plaintiff required to proceed through claims commissioner; as to injunctive relief, plaintiff must establish constitutional violations); Fetterman v. University of Connecticut, 192 Conn. 539, 553, 473 A.2d 1176 (1984) (treating separately claims for damages, declaratory relief)." Tuchman v. State, supra, 89 Conn.App. 752 n.4.
" It has long been recognized that [w]hen a plaintiff brings an action for money damages against the state, he must proceed through the office of the claims commissioner pursuant to chapter 53 of the General Statutes, § § 4-141 through 4-165. Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity." (Internal quotation marks omitted.) Id., 752.
" 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. The fact that the state is not named as a defendant, however, does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . . To determine whether an action is against the state or against a defendant in his individual capacity, we look to the four criteria established by our Supreme Court in Somers [v. Hill, 143 Conn. 476, 123 A.2d 468 (1956)], and as explained further in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975). If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred. Id., 568. The criteria are: (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 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." (Citation omitted; internal quotation marks omitted.) Kenney v. Weaving, 123 Conn.App. 211, 216, 1 A.3d 1083 (2010).
Here, the first Spring criterion is satisfied because both the summons and complaint identify all of the defendants by their official titles, and all of the defendants are state officials. The second criterion is met because the present action involves interactions with the plaintiff that only occurred during the course of the defendants' employment, and the actions against the defendants concern a matter in which they represented the state. The fourth criterion is met because any judgment against the defendants would operate to control the activities of the state, namely, the role of the director and other defendants in transferring prisoners to medical facilities, and the role of the commissioner of corrections in providing legal services to prisoners.
It is the third criterion, whether the state is the real party against whom relief is sought, which is the crucial element in the present case. " Analysis under [the third criterion] requires scrutiny of the complaint because it has been established that the right of a plaintiff to recover is limited to the allegations of [the] complaint . . . The court may also look to the summons for the manner in which the plaintiff references the defendants and the addresses provided for the defendants. Miller v. Egan, 265 Conn. 301, 308-09, 828 A.2d 549 (2003) . . ." (Citations omitted; internal quotation marks omitted.) Hanton v. Williams, Superior Court, judicial district of New Haven, Docket No. CV-09-5030962-S (June 3, 2011, Wilson, J.).
Here, the plaintiff has brought claims against the defendants regarding the administration of the legal assistance program, and the authorizing of the transfer of the plaintiff from MacDougall-Walker to Corrigan. These acts were performed as part of the defendants' official duties. In addition, although the summons states that the defendants are sued in both their personal and official capacity, only the defendants' work addresses are listed, and, except for Milling, their official title appears next to their name. Therefore, the state is the real party against whom relief is sought, and the third criterion is also satisfied. Because all four criteria are satisfied, the negligence claim is really a claim against the state.
Despite the four criteria being met, the plaintiff may still avoid the bar of the doctrine of sovereign immunity by demonstrating that a recognized exception applies. " Exceptions to this doctrine [of sovereign immunity] 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). " [T]he sovereign immunity enjoyed by the state is not absolute. There are [three] 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." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).
" For a claim made pursuant to the first exception, [the] court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity . . . For a claim made pursuant to the second exception, complaining of unconstitutional acts, [the court requires] that [t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests . . . For a claim under the third exception, the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations . . . In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Citations omitted; internal quotation marks omitted.) Id., 349-50.
As to the first exception, the legislature has not waived the state's immunity. Furthermore, as to the second and third exception, the plaintiff's negligence claim does not allege violation of the plaintiff's constitutional rights or wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority. Although the second exception may potentially apply to count one and count three, these claims were addressed separately under the federal immunity analysis. Thus, the plaintiff's claim for negligence is barred by the doctrine of sovereign immunity.
v
Statutory Immunity (Count Two)
The defendants are sued in their official capacity and are immune from suit due to sovereign immunity. As a result, the court does not need to address the defendants' statutory immunity ground for granting the motion to dismiss. Nevertheless, in the interest of judicial thoroughness, and to the extent that the defendants are being sued in their individual capacity, the defendants' statutory immunity ground will be discussed.
Statutory immunity is only discussed as an alternative ground, to the extent that sovereign immunity does not apply. The Supreme Court has held that " where a state official is sued in both her official and individual capacities, if sovereign immunity does not apply to the claim against her in her official capacity, the statutory immunity may then apply to the claim against her in her individual capacity. Thus, before determining whether and to what extent the defendants are shielded by the statutory immunity provided by § 4-165, it is appropriate to determine whether the claims against them are barred by the common-law doctrine of sovereign immunity." Shay v. Rossi, 253 Conn. 134, 162-63, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003). " If the defendants have established their defense of sovereign immunity, they need not demonstrate their compliance with § 4-165." Martin v. Brady, 64 Conn.App. 433, 438, 780 A.2d 961 (2001), aff'd, 261 Conn. 372, 802 A.2d 814 (2002). " [Statutory] immunity provided by § 4-165 does not apply if the doctrine of sovereign immunity does apply." Hultman v. Blumenthal, supra, 67 Conn.App. 620. Likewise, " statutory immunity provided by § 4-165 applies where sovereign immunity does not apply." Shay v. Rossi, supra, 165.
General Statutes § 4-165(a) provides: " No state officer or employee shall 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. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter."
" [S]tate employees may not be held personally liable for their negligent actions performed within the scope of their employment. This provision of statutory immunity to state employees has a twofold purpose. First, the legislature sought to avoid placing a burden upon state employment. Second, § 4-165 makes clear that the remedy available to plaintiffs who have suffered harm from the negligent actions of a state employee who acted in the scope of his or her employment must bring a claim against the state 'under the provisions of this chapter, ' namely, chapter 53 of the General Statutes, which governs the office of the claims commissioner." (Footnote omitted.) Miller v. Egan, supra, 265 Conn. 319. " State employees do not, however, have statutory immunity for [1] wanton, reckless or malicious actions, or for [2] actions not performed within the scope of their employment. For those actions, they may be held personally liable, and a plaintiff who has been injured by such actions is free to bring an action against the individual employee." Id.
a
Wanton, Reckless, or Malicious Conduct Exception
" [The Supreme Court has] never definitively determined the meaning of wanton, reckless or malicious as used in § 4-165. In the common-law context, however, we have stated: In order to establish that the defendants' conduct was wanton, reckless, willful, 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." (Emphasis added; internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 379, 802 A.2d 814 (2002).
In count two, the plaintiff alleges " plain and simple negligence." Based on the nature of the cause of action, count two does not fall within the exception for wanton, reckless, or malicious. The plaintiff did not allege conduct that is more than negligence.
In addition, the record as to the defendants' conduct does not support a claim for recklessness.
b
Outside the Scope of Employment Exception
" In order to determine if a state actor's conduct is caused in the discharge of his or her duties or within the granted statutory authority, it is necessary to examine the nature of the alleged conduct and its relationship to the duties incidental to the employment." Martin v. Brady, supra, 261 Conn. 377.
In count two, the plaintiff has alleged that Beckford, Milling and Arnone acted negligently in authorizing the transfer of the plaintiff when he was hospitalized at MacDougall-Walker, unable to walk. In addition, Milling, Arnone and De Hove acted negligently in authorizing the transfer, which was a " swap" involving another inmate, Biggs.
Arnone is the former commissioner of the Department of Corrections, Milling is the former director of Offender Classification and Population Management, Beckford is the supervising nurse, and De Hove is the captain within the Department of Corrections, and the second shift supervisor. The plaintiff has not alleged in his complaint that any of the defendants acted outside the scope of their duties. The only admissible evidence that possibly supports the argument that any of the defendants acted outside the scope of their duties concerns Beckford. In his deposition, the plaintiff testified: " I see no reason why a nurse who had no authority to lower my medical level without doctor's approval lowered my medical level other than to justify being able to move me legitimately in a regular transport with no consideration." (Defendant's Exhibit E, pp. 13-14.) The plaintiff is not a medical expert and has offered no medical opinion in support of his assertion. He has offered no admissible evidence which establishes that Beckford acted outside the scope of her duties.
As such, the plaintiff has not alleged facts or presented evidence that would show that any of these defendants acted outside the scope of their duties as employees of the state of Connecticut Department of Correction or Correctional Managed Health Care. Thus, the scope of employment exception is also not applicable, and the defendants are immune to the extent the negligence claims is brought against them in their individual capacity.
B
Summary Judgment on Merits
Even though eleventh amendment immunity and qualified immunity apply as to the claims for monetary damages for count one and count three, the defendants are not immune as to claims for injunctive relief. Therefore, the court addresses the defendants' motion for summary judgment as to those counts.
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 381 [now § 17-46].
i
Count One: Constitutional Right of Access to the Courts
" It is well established that prisoners have a constitutional right of access to the courts . . . [and that such access must be] adequate, effective and meaningful . . . Decisions of the United States Supreme Court have consistently required [s]tates to shoulder affirmative obligations to assure all prisoners meaningful access to the courts . . . Bounds [v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)] does not [however] guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." (Citation omitted; internal quotation marks omitted.) Sadler v. Commissioner of Correction, 100 Conn.App. 659, 661, 918 A.2d 1033, cert. denied, 285 Conn. 901, 938 A.2d 593 (2007).
" [T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law . . . Such assistance, however, may take many forms . . . Practices or regulations are invalid under Bounds only if the prisoner is denied access to both legal assistance and legal materials." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 661-62.
" Although the right of access to the courts is fundamental, neither the United States Supreme Court nor our Supreme Court has delineated precisely what procedures are necessary to satisfy the right. Our Supreme Court, however, has provided examples of tools that are sufficient. Reasonable access to a law library within the correctional facilities . . . consultation with attorneys or their representatives through the mails and personal visits and consultation with attorneys over the telephone within department guidelines . . . are all valid methods of ensuring that inmates are not denied the access to the courts to which they are entitled by the fourteenth amendment and article first, § 10 [of the Connecticut constitution] . . . Our Supreme Court has also stated that the appointment of standby counsel satisfies the state's obligation to provide access to its courts, at least when the party has waived a right to appointed counsel . . . The analysis to determine whether the right to access has been satisfied does not vary depending on whether the character of the trial is civil or criminal." (Citations omitted; internal quotation marks omitted.) Wilson v. Commissioner of Correction, 104 Conn.App. 224, 240, 932 A.2d 481 (2007).
" In addition, [i]nsofar as the right 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 hindered his efforts to pursue a legal claim." (Internal quotation marks omitted.) Id., 662, citing Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). In other words, " a plaintiff cannot prevail on a right of access to courts claim unless he can show that the defendants' conduct prevented him from filing a potentially successful claim in court." (Internal quotation marks omitted.) Hannon v. Schulman and Associates, United States District Court, Docket No. 3:15CV583 (JAM), (D.Conn. June 1, 2015).
" Accordingly, an inmate might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known . . . Alternatively, he might show that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint." (Citation omitted; internal quotation marks omitted.) Id., citing Lewis v. Casey, supra, 518 U.S. 351.
Here, the plaintiff has brought count one only against former commissioner Arnone. The plaintiff has not presented any admissible evidence as to the right of access claim, and, more specifically, as to the actual injury the plaintiff suffered from being allegedly denied access to the courts.
In fact, the plaintiff has not even alleged facts in his complaint that would indicate that the shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. The only injury alleged is that the " plaintiff is unwillingly forced to file this complaint pro se." Even under a motion to strike standard, such an allegation is not, in itself, sufficient to show actual injury under Lewis v. Casey, supra, 518 U.S. 343.
Moreover, in the present action, the plaintiff has successfully initiated three claims against multiple defendants. In his objection to the present motion for summary judgment, the plaintiff submitted a lengthy memorandum with multiple citations to applicable case law. As such, the plaintiff has failed to show that he suffered an actual injury regarding access to the courts as to the present action.
In addition, the court takes judicial notice of the numerous civil actions that the plaintiff brought against various defendants. The plaintiff has commenced at least nine other civil actions. The plaintiff has not submitted any admissible evidence, nor has he alleged or argued that any of his actions were dismissed because of inadequate legal assistance.
He is represented by counsel in two habeas corpus actions. Of note, in one of the habeas proceedings he is represented by Attorney Bansley, whose legal services he vociferously disparages in his pleadings in the instant action.
The plaintiff briefly discussed his access to the court's claim during his deposition, but the only injury alleged is that he was forced to file as a self-represented party. (Defendants' Exhibit E, pp. 11, 50, 52, 53.) The additional evidence filed by the plaintiff, even if relevant, is not under oath, and therefore not for the court's consideration. Practice Book § 17-46.
Thus, the plaintiff has failed to show that there is a genuine issue of material fact that he has suffered an actual injury, namely, that the defendants' conduct prevented him from filing a potentially successful claim in court. See Sadler v. Commissioner of Correction, supra, 100 Conn.App. 663-64 (" [T]he fact that the petitioner has had prior access to the court system and still has pending cases, belies his claim that he has been denied access to the courts . . . [O]ur review of the record leaves us with the firm conviction that the petitioner has failed to demonstrate that he has been denied reasonable access to the courts").
ii
Count Three: " Deliberate Indifference"
" The [e]ighth [a]mendment prohibits the infliction of cruel and unusual punishments . . . This includes punishments that involve the unnecessary and wanton infliction of pain . . . In order to establish an [e]ighth [a]mendment claim arising out of inadequate medical care, a prisoner must prove deliberate indifference to [his] serious medical needs . . . The standard of deliberate indifference includes both subjective and objective components. First, the alleged deprivation must be, in objective terms, sufficiently serious . . . Second, the [government official] must act with a sufficiently culpable state of mind." (Citations omitted; internal quotation marks omitted.) Faraday v. Commissioner of Correction, 288 Conn. 326, 338, 952 A.2d 764 (2008).
The plaintiff testified in his deposition that he had suffered from serious and chronic back pain (above the left hip), had difficulty walking, and had experienced numbness in his left leg. For the purposes of this summary judgment motion, there is a genuine issue of material fact as to whether the plaintiff has met the objective prong of the Eighth Amendment claim, namely, the existence of a serious medical condition. See Ponce v. Manava, United States District Court, Docket No. 9:13CV274 (NAM/TWD), (N.D.N.Y. March 27, 2015) (collecting New York district court cases for the proposition that " [s]evere back pain can rise to the level of a 'serious medical condition'").
The critical issue before the court is whether there is a genuine issue of material fact as to the second, subjective, prong, which requires that the plaintiff show that the defendants had a sufficiently culpable state of mind. " An official acts with the requisite deliberate indifference when that official knows of and disregards an excessive risk to inmate health or 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 . . . Thus, an official's failure to alleviate a significant risk that he should have perceived but did not [does not violate the eighth amendment]." (Citations omitted; footnote omitted; internal quotation marks omitted.) Faraday v. Commissioner of Correction, supra, 288 Conn. 338-39.
" Accordingly, to establish a claim of deliberate indifference in violation of the eighth amendment, a prisoner must prove that the officials' actions constituted more than ordinary lack of due care for the prisoner's interests or safety . . . [D]eliberate indifference is a stringent standard of fault . . . requiring proof of a state of mind that is the equivalent of criminal recklessness . . . Consequently, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the [e]ighth [a]mendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner . . . In other words, negligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim . . . At the same time, however, while mere medical malpractice is not tantamount to deliberate indifference, certain instances of medical malpractice may rise to the level of deliberate indifference; namely, when the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces a conscious disregard of a substantial risk of serious harm." (Citations omitted; internal quotation marks omitted.) Id., 339-40.
" The fact that plaintiff might have preferred an alternative treatment or believes that he did not get the medical attention he desired does not rise to the level of a constitutional violation . . . It is well established that disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of their intervention implicate medical judgments and not the Eighth Amendment." (Citation omitted.) Jones v. Smith, United States District Court, Docket No. 9:09CV1058 (GLS/ATB), (N.D.N.Y. September 30, 2015).
" In cases where a prisoner has actually received medical treatment, deliberate indifference will not be found unless the medical attention rendered was so woefully inadequate as to amount to no treatment at all." (Internal quotation marks omitted.) Bost v. Acevedo, United States District Court, Docket No. 9:12CV1548, (N.D.N.Y. March 16, 2015). Thus, the Second Circuit district courts have generally found that the plaintiff has not met his burden as to the culpable state of mind prong where the record shows that there has been significant and adequate medical treatment by the defendant. See, e.g., Bost v. Acevedo, supra, United States District Court, Docket No. 9:12CV1548 (recommending that summary judgment be granted where the evidence showed that there is no genuine issue of material fact that treatment was not woefully inadequate because inmate saw medical staff thirteen times over a period of 106 days to treat back pain, the inmate was prescribed medication, and the inmate received x-rays and an MRI); Perez v. Hawk, 302 F.Supp.2d 9, 21 (E.D.N.Y. 2004) (granting defendants' motion to dismiss where evidence showed that prisoner was seen thirty times by medical staff, was given medication, and tested).
In the present case, the defendants have submitted, in relevant part, the affidavit of Rikel Lightner, a registered nurse and Health Service Administrator at MacDougall-Walker, as well as copies of relevant medical records. Lightner states that the plaintiff was admitted to MacDougall-Walker on April 11, 2012, for exacerbation of chronic back pain, with an alteration in mobility. (Defendant's Exhibit H, ¶ 5.) The admission record states that the plaintiff is to remain in the " infirmary housing until ability to walk returns." (Defendant's Exhibit H, ¶ 6.) As described in the physician's evaluation on April 12, 2012, the plaintiff demonstrated an ability to stand and ambulate slowly. (Defendant's Exhibit H, ¶ 8.) On April 12, 2012, the doctor ordered that the plaintiff was to be encouraged to ambulate at least twice a day. (Defendant's Exhibit H, ¶ 9.) There are a number of clinical notes by nurses that document that the plaintiff was ambulating while in the infirmary. (Defendant's Exhibit H, ¶ 10; see also Defendant's Exhibit F.) On April 17, 2012, the plaintiff was provided with a walker, replacing his cane, to provide greater support. (Defendant's Exhibit H, ¶ 11.) On the same day, the plaintiff's ambulation was observed by a registered nurse, who documented that he walked without difficulty or pain with the walker. (Defendant's Exhibit H, ¶ 12.) The doctor subsequently wrote that the plaintiff was ambulating better with the use of a walker, and ordered his discharge to the general population. (Defendant's Exhibit H, ¶ 13.) The plaintiff was then transferred to Corrigan and assessed upon intake by a registered nurse. (Defendant's Exhibit H, ¶ 15.) The plaintiff's transfer was due to a medical necessity of another inmate with whom a separation profile existed. (Defendant's Exhibit H, ¶ 16; see also Defendant's Exhibit 1.) The intake nurse also observed that the plaintiff ambulates without difficulty with the use of the walker, and referred the plaintiff to the general population. (Defendant's Exhibit H, ¶ 17.)
The plaintiff objects to the description of Lightner as a registered nurse in the affidavit, but does not provide admissible evidence to show that the description is incorrect.
The plaintiff has failed to submit relevant and admissible evidence that would support a claim of deliberate indifference against any of the defendants. The crux of the plaintiff's deliberate indifference claim is against Beckford, the supervising nurse. In the complaint, the plaintiff alleges that Beckford transferred him from the medical ward in the MacDougall-Walker to the general population in Corrigan, knowing he could not walk, and failing to alert the medical unit in Corrigan of his medical need. In his deposition, submitted by the defendants, the plaintiff does nothing to clarify the nature of his allegations against Beckford, other than to say that " [t]hey had to reduce my level to an average medical level three to get me to move, and that's where Shanon Beckford came into play with this . . . I see no reason why a nurse who had no authority to lower my medical level without doctor's approval lowered my medical level other than to justify being able to move me legitimately in a regular transport with no consideration." (Defendant's Exhibit E, pp. 13-14.)
Despite the allegations in the plaintiff's complaint and his deposition testimony, there is no evidence before the court that Beckford, or any of the other defendants, had knowledge of the plaintiff's condition that would amount to a conscious disregard of the serious condition or harm. To the contrary, the evidence submitted by the defendants shows that the nurses repeatedly observed that the plaintiff walked without difficulty or pain with the walker on the day of the transfer, and on many of the days leading up to the transfer. Thus, even if the plaintiff's deposition raises a genuine issue of material fact as to whether the plaintiff could walk or was experiencing pain on the day of the transfer, or even as to whether Beckford was acting without proper authority, the defendants have submitted uncontroverted evidence that shows that there is no genuine issue of material fact that they did not have any knowledge that these medical conditions existed on the day of the transfer that would amount to a conscious disregard.
The plaintiff, an inmate, is not qualified to speak as to the precise nature of the defendants' official duties.
Moreover, in cases where a prisoner has actually received medical treatment, deliberate indifference will not be found unless the medical attention rendered was so woefully inadequate as to amount to no treatment at all. Here, there is no genuine issue of material fact that the plaintiff received substantial and adequate medical treatment, including several visits by a doctor (Defendant's Exhibit E, pp. 23, 30), frequent monitoring by registered nurses until he was able to walk without pain with the help of a walker (Defendant's Exhibit H, ¶ ¶ 8-13; see also Defendant's Exhibit F), an x-ray taken in 2004 (Defendant's Exhibit E, p. 23), a failed attempt to have the plaintiff undergo an MRI in early May 2012 (Defendant's Exhibit E, p. 43), and consistent provision of medications (Defendant's Exhibit E, pp. 16, 27-28, 71-77; see also Defendant's Exhibit F). Thus, there is no genuine issue of material fact that the defendants did not act with deliberate indifference to the plaintiff's medical needs.
ORDER
The defendants' motion for summary judgment (158.00) as to all three counts is granted.
II
Plaintiff's motion for summary judgment (161.00)
The plaintiff moves for summary judgment on the merits. The motion and memorandum refer to the arguments contained in his objection to the defendants' motion for summary judgment. In conclusion, the plaintiff " asks this court to consider all the facts made available and deny [the defendants'] request for Summary Judgment and instead approve Plaintiff's Summary Judgment Motion and award injunctive relief against the Dept. of Corrections and insure medical safeguards are established for all transfers and award compensatory damages to Plaintiff as requested." The plaintiff further seeks the court to undertake other reviews of contracts and directives of the Department of Corrections.
As the court grants the defendants' motion for summary judgment, which disposes of the plaintiff's action, the court does not reach the plaintiff's motion for summary judgment (161.00).
Under the motion to dismiss standard, the allegations in the complaint must be construed in favor of the nonmoving party. As such, the court treats count one and count three as claims for monetary damages pursuant to § 1983.