Opinion
No. CV 09-4011295S
September 16, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The defendant department of correction and its defendant employees have moved to dismiss this administrative appeal that alleges that the plaintiff inmate was not given a procedurally-correct disciplinary hearing. The complaint fails on subject matter jurisdictional grounds as the administrative appeal relates to a department of correction disciplinary action. See General Statutes § 4-166(2); Townsend v. Hogan, 115 Conn.App. 671, 974 A.2d 65 (2009); Francis v. Chevair, 99 Conn.App. 789, 916 A.2d 86, cert. denied, 283 Conn. 901, 926 A.2 669 (2007) which hold that such matters do not constitute contested cases. Since this is not a contested case, it is not a final decision under § 4-166(3) and cannot be appealed under § 4-183(a).
While the complaint as filed had a June 2, 2008 return date and the motion to dismiss was filed on July 28, 2008, subject matter jurisdiction may not be waived and a motion to dismiss may be filed at any time. Practice Book § 10-33.
Section 51-197b must be read in context with § 4-166(2).
Further, the court declines to reach the plaintiff's constitutional claim of denial of due process. See Townsend v. Hogan, supra, 115 Conn.App. 673, n. 1. The complaint states that it is an administrative appeal, and its vague claims of constitutional violation were not clarified by any subsequent amendment or brief. For example, the complaint and the attachments fail to set forth the exact discipline. Also, there is no statement in the complaint that a liberty interest of the plaintiff has been violated. See District Attorney's Office for the Third Judicial District v. Osborn, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009).
The motion to dismiss is therefore granted.