Opinion
CV164007897S
06-15-2018
Herminio SOTOMAYOR (Inmate #224557) v. WARDEN
UNPUBLISHED OPINION
OPINION
Mullarkey, J.T.R.
The petitioner filed a pro se petition for a writ of habeas corpus on March 7, 2016. The pro se petition was amended twice by the petitioner, who is self-represented. The operative complaint, the second amended petition dated December 8, 2017, alleges implicitly that he is not receiving adequate medical care while in the custody of the respondent warden. More specifically, the petitioner alleges that he requires a special hearing aid and accessory thereto. The respondent’s return denies the petitioner’s allegations and asserts that the petitioner has been provided consistent and adequate medical care, and that the Department of Correction (DOC) has not been deliberately indifferent to his medical needs.
The parties appeared before this court on January 22 and May 30, 2018, for a trial on the merits. The petitioner presented testimony in support of his claims. The respondent called four witnesses: Colleen Gallagher, Program Director of Quality Improvement/Health & Addiction Services with DOC; Dr. Monica Farinella, MD; DOC Deputy Warden Ronald Cotta; and Dr. Erin Perez, an Audiologist. Both parties entered documents into evidence.
For the reasons articulated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.
APPLICABLE LEGAL STANDARD
"The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. In its prohibition of cruel and unusual punishments, the Eighth Amendment places restraints on prison officials, who may not, for example, use excessive physical force against prisoners. The Amendment also imposes duties on these officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates." (Internal citations and quotation marks omitted.) Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
"The [e]ighth [a]mendment prohibits the infliction of cruel and unusual punishments. U.S. Const. amend VIII. This includes punishments that involve the unnecessary and wanton infliction of pain. Gregg v. Georgia, 428 U.S. 153, 173 , 49 L.Ed.2d 859 (1976)." Faraday v. Commissioner of Correction, 288 Conn. 326, 338, 952 A.2d 764 (2008). "The eighth amendment, which applies to the states through the due process clause of the fourteenth amendment to the United States constitution; see, e.g., Rhodes v. Chapman, 452 U.S. 337, 344-45, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); ‘prohibits detention in a manner that constitutes cruel and unusual punishment.’ Hunnicutt v. Commissioner of Correction, 67 Conn.App. 65, 66, 787 A.2d 22 (2001). ‘Cruel and unusual punishment refers to punishment that involves the unnecessary and wanton infliction of pain or is grossly disproportionate to the severity of the crime.’ Santiago v. Commissioner of Correction, [ 39 Conn.App. 674, 683, 667 A.2d 304 (1995) ]. Under the eighth amendment, ‘prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates ...’ (Citation omitted; internal quotation marks omitted.) Farmer v. Brennan, [supra, 511 U.S. 832]." Fuller v. Commissioner of Correction, 75 Conn.App. 133, 136, 815 A.2d 208, cert. denied, 263 Conn.App. 65, 66, 787 A.2d 1217 (2003).
"Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism ..." (Citation omitted.) Washington v. Meachum, 238 Conn. 692, 733-34, 680 A.2d 262 (1996); see also State v. Fernandez, 254 Conn. 637, 656, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001) ("... not within the province of the judiciary to micromanage prisons").
"The punishment of incarcerated prisoners ... effectuates prison management and prisoner rehabilitative goals. Admittedly, prisoners do not shed all constitutional rights at the prison gate, but lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law." Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). "The limitation on prisoners’ privileges and rights also follows from the need to grant necessary authority and capacity to federal and state officials to administer the prisons. See, e.g., Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). ‘Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.’ Id., at 84-85, 107 S.Ct. 2254. To respect these imperatives, courts must exercise restraint in supervising the minutiae of prison life. Id. ..." McKune v. Lile, 536 U.S. 24, 37, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002).
"A court may entertain only those habeas petitions that address an illegal confinement or deprivation of liberty. General Statutes § 52-466(a); Vincenzo v. Warden, [ 26 Conn.App. 132, 137, 599 A.2d 31 (1991) ]." Abed v. Commissioner of Correction, 43 Conn.App. 176, 179, 682 A.2d 558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996). "Every injury suffered ... at the hands of an inmate does not necessarily translate into constitutional liability for prison officials. See [Farmer v. Brennan, supra, 511 U.S. 834]. In challenging the conditions of confinement, the prisoner must meet two requirements. First, the alleged deprivation of adequate conditions must be objectively, sufficiently serious; id. ; such that the petitioner was denied ‘the minimal civilized measure of life’s necessities ...’ (Citation omitted; internal quotation marks omitted.) Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Second, the official involved must have had a sufficiently culpable state of mind described as ‘deliberate indifference’ to inmate health or safety. Farmer v. Brennan, supra, 511 U.S. 834. In that context, subjective deliberate indifference means that ‘a prison official cannot be found liable under the [e]ighth [a]mendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety ...’ Id., 837." Fuller v. Commissioner of Correction, supra, 75 Conn.App. 137; see also Wheway v. Warden, 215 Conn. 418, 431-32, 576 A.2d 494 (1990).
FACTUAL FINDINGS AND DISCUSSION
The trial of the petitioner’s claims in his amended petition occurred on January 22 and May 30, 2018. The petitioner was self-represented. It was difficult to get him to understand that his claims in his first petition which were not incorporated into his amended petition were no longer at issue.
In his attachment to the initial pro se petition, filed March 7, 2016, the petitioner complained about: pain in his nose and difficulty keeping his eyes open after he was purportedly sprayed with pepper spray; pain in his sinus tubes; difficulty breathing; hearing deficits (e.g., bilateral hearing loss), but only being prescribed one hearing aid instead of two; tinnitus; back pain; chest pain; and additional pain and problems with both eyes. As relief the petitioner listed getting a left hearing aid, an MRI for his back, neck and chest, and a check of his nose, sinus and chest. Additionally, the petitioner requested to be housed in a single cell because of this litany of ailments.
More than one year later, on August 31, 2017, with no return filed by the respondent, the petitioner filed an amended petition accompanied with attachments. See Practice Book § 23-32 (petition may be amended at any time prior to the time the respondent files a return). The first amended petition identified only the petitioner’s hearing as a basis for his complaint. The petitioner for the first time identified the Americans With Disabilities Act (ADA) in the context of his request to DOC for special head set to hear the television or radio. The gist of the first amended petition is that the petitioner requires special hearing equipment that is not being provided by DOC.
On December 8, 2017, another half-year later, with still no return filed by the respondent, the petitioner again amended his petition. In the second amended petition, the operative complaint, the petitioner raises issues pertaining to his left hearing aid, needing remote accessories for the hearing aid, malfunctioning of the right hearing aid, that the hearing aid hurts his ear, and tinnitus (i.e., ringing in his ear). On December 15, 2017, the respondent filed a return that generally denies the petitioner’s claims.
"Under our case law, it is well settled that ‘a party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same ... If a new cause of action is alleged in an amended complaint ... it will [speak] as of the date when it was filed ... A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief ... A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but whe[n] an entirely new and different factual situation is presented, a new and different cause of action is stated.’ " (Citations omitted; internal quotation marks omitted.) Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 798, 945 A.2d 955 (2008), citing and quoting Wagner v. Clark Equipment Co., 259 Conn. 114, 129-30, 788 A.2d 83 (2002).
"In a writ of habeas corpus alleging illegal confinement the application must set forth specific grounds for the issuance of the writ including the basis for the claim of illegal confinement ... The petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action ... The principle that a plaintiff may rely only upon what he has alleged is basic ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint ... While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations[,] it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised ... The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise." (Internal citations and quotation marks omitted.) Jenkins v. Commissioner of Correction, 52 Conn.App. 385, 406, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999); see also Hasan v. Warden, 27 Conn.App. 794, 798, 609 A.2d 1031, cert. denied, 223 Conn. 917, 614 A.2d 821 (1992).
"... Pursuant to Practice Book § 23-32, [t]he petitioner may amend the petition at any time prior to the filing of the return. Following the return, any pleading may be amended with leave of the judicial authority for good cause shown ... While our courts have been liberal in permitting amendments ... this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment ... The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 147 Conn.App. 748, 759-60, 83 A.3d 1174, cert. denied, 311 Conn. 928, 86 A.3d 1057 (2014); Pierce v. Commissioner of Correction, 100 Conn.App. 1, 6-7, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007); Hasan v. Warden, supra, 27 Conn.App. 798.
"The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise ... The petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action ... The principle that a plaintiff may rely only upon what he has alleged is basic ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint ... A complaint includes all exhibits attached to it. See Practice Book § 10-29; ...
"[T]he interpretation of pleadings is always a question of law for the court ... [T]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ... [T]he [petition] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, [courts] will not conclude that the [petition] is insufficient to allow recovery." (Citations omitted; emphasis in original; internal quotation marks omitted.) Lorthe v. Commissioner of Correction, 103 Conn.App. 662, 668-69, 931 A.2d 348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).
Applying these tenets to the present case, the court acknowledges that the petitioner, who is self-represented, was permitted by Practice Book § 23-32 to amend the petition at will until such time as the respondent filed a return. It is unclear, however, whether the amendments to the initial petition were intended to narrow the claims or elaborate on them. The lack of a return enabled this meandering of claims. Given all the foregoing, the court will construe the petitioner’s claims broadly and realistically as challenging the medical care provided by DOC. Any claimed surprise or prejudice by the respondent is unfounded in light of the significant delay in filing a return.
The petitioner testified at length about his hearing problems and the medically dubious ancillary results from them including "wavering" and outbursts.
DOC Program Director Colleen Gallagher testified that she has been in that post for over fifteen years and holds a masters degree in health care administration. She oversees all coordinators in DOC who address inmates’ complaints under the ADA. She has personally responded to the petitioner’s claims, met with him, and authorized the purchase of noise reducing headphones which were not medically required. At first the petitioner refused to wear them because no cord linking these headphones to audio source was provided. The petitioner eventually accepted them but wanted to be able to wear them when out of his cell. This was denied at a level four security institution for safety reasons and because the contract the petitioner signed per his request limited them to in-cell use.
Dr. Monica Farinella, MD, testified that she reviewed the petitioner’s medical and mental health records (Respondent’s Exhibits A, B, and C) and found no medical reason for the petitioner to have a single cell. Those cells are reserved for persons who use are contagious and would have no effect on hearing loss.
Deputy Warden Cotta testified that the petitioner was not qualified for a medical bed and he would be reluctant to evict an inmate with severe medical issues to accommodate the petitioner’s request. The Deputy Warden did, however, offer the petitioner the opportunity to pick any inmate on his unit for a cellmate.
Dr. Erin Perez, Audiologist and Assistant Professor at University of Connecticut Medical Center, has had the petitioner as a patient since October 31, 2017. She tested the petitioner and fitted him with a left hearing aid to supplement the right one he had since September 2015. When the petitioner complained about the one hearing aid, Dr. Perez had it modified to add a fourth setting to give low level masking for tinnitus. When the petitioner still complained of the plugged vent hole in the right hearing aid designed to equalize pressure when the wearer speaks, the doctor had the plug removed when the petitioner threatened to not wear it otherwise. One hearing aid was sent back to the manufacturer upon the petitioner’s complaint accompanied by an ultimatum that its microphone was working properly. No defect was found. The doctor testified she had acted to "appease" the petitioner. She further testified that the petitioner is fit appropriately on both ears and his tinnitus does not cause his claimed "waver" or imbalance.
A review of the exhibits, particularly petitioner’s exhibits 2, 3, 27, 36, 42 and respondent’s exhibit B, supports the medical and security testimony in this trial. The petitioner has totally failed to show any evidence of "deliberate indifference" to his medical needs. See Faraday v. Commissioner of Correction, supra ; Hunnicutt v. Commissioner of Correction, supra ; Santiago v. Commissioner of Correction, supra .
The petitioner’s claims in the present matter do not specifically allege a constitutional violation. The amended petition does not explicitly allege that the petitioner is being subjected to cruel and unusual punishment. Nor is there evidence that the respondent has been deliberately indifferent to the petitioner’s health or safety because the respondent knows of and disregards an excessive risk to inmate health or safety. Wheway v. Warden, supra, 215 Conn. 431-32; Fuller v. Commissioner of Correction, supra, 75 Conn.App. 137. Based upon all the foregoing, the court concludes that even if the amended petition is viewed to allege a violation of the eighth amendment prohibition against cruel and unusual punishment, the petitioner has failed in his burden of proof.
CONCLUSION
Judgment shall enter for the respondent and the petition for a writ of habeas corpus is denied.
It is so ordered.