Opinion
CV155017038S
08-10-2016
Gary Stocking v. Scott Semple
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
PETER EMMETT WIESE, JUDGE.
I
PROCEDURAL HISTORY
On November 25, 2015, the plaintiff, Gary Stocking, filed his complaint, alleging violation of state law and federal law by the defendant, Scott Semple, the Commissioner of Correction. The plaintiff's complaint does not clearly separate, identify, or number the various distinct causes of action, and it is thus difficult to identify these claims. Nevertheless, it appears that the plaintiff has brought five separate causes of action: (1) a state tort claim for medical malpractice; (2) " Fraud and Discrimination" in violation of both federal and state law; (3) violation of the eighth amendment to the United States constitution; (4) a constitutional claim for the denial of access to the courts; and (5) violation of the first amendment to the United States constitution.
The plaintiff filed a motion to amend on June 8, 2016. On June 27, 2016, the court denied the motion to amend, stating: " The Motion to Amend the Complaint is denied without prejudice. The proposed amended complaint is not attached to the motion."
As to the claim for medical malpractice, the plaintiff alleges the following relevant facts. On June 20, 2011, the plaintiff was misdiagnosed with Hepatitis C while in state custody. The plaintiff was not offered any treatment or psychological counseling for the potentially fatal viral infection that causes terminal liver disease. The plaintiff received the diagnosis on November 15, 2011, shortly after his mother died, and he became depressed and suicidal. On April 9, 2015, at the Osborn Correctional Institution, the plaintiff was informed by a female nurse, Rodriguez, that he does not have Hepatitis C.
As to the " Fraud and Discrimination" claim, the plaintiff alleges that, at the Osborn Correctional Institution, he was informed by Counselor Smith that the plaintiff would not be reviewed for a halfway house because his sentence is less than two years. The plaintiff claims that this is false because the Department of Correction Administrative Directive 9.2 states that the plaintiff must be within eighteen months of the end of his sentence to be eligible for the halfway house.
Department of Correction Administrative Directive 9.2(11)(B), regarding Residential Program Placement, states: " Eligibility Criteria. An inmate may be eligible for transfer to a residential work or education program when the following criteria are met: a. Be classified level 2 or 3; b. Be within 18 months of estimated discharge date or Voted to Parole date; c. Must not be serving the mandatory portion of Driving While Intoxicated, Section 14-227(a) of the Connecticut General Statutes or a Driving under Suspension offense that originally was related to a Driving while Intoxicated, Section 14-215(c) sentence of the Connecticut General Statutes; d. Remain discipline free of a Class A offense during the preceding 120 days; e. Remain discipline free of a Class B offense during the preceding 60 days; f. Have no return from escape, to include absconding from parole, within the past six (6) months (may be waived at the discretion of the Unit Administrator); g. Remain free of community release program failure during the preceding 120 days; h. Have no pending charges or detainers unless bond has been posted except pending out of state charges below risk level 4 with official verification that the state will not extradite; i. Met the requirements for participation in job opportunities, employment preparation, educational placement or substance abuse training and education; j. Must not be a designated Security Risk Group member; k. Favorable recommendations for inmates with a sex offense treatment need score greater than 1 shall be forwarded to the Director of Offender Classification and Population Management for review and approval in consultation with appropriate Mental Health staff and, 1. Must submit to felony DNA requirements, if applicable. Class A and B disciplinary reports may be waived at the discretion of the Unit Administrator."
As to the claim for the violation of the eighth amendment, the plaintiff claims, in part, that the allegations of medical malpractice and " Fraud and Discrimination" are also a violation of the eighth amendment. The plaintiff further alleges the following violations under the eighth amendment. On August 27, 2014, the plaintiff was denied access to toothpaste and an envelope despite requesting these items in writing. On September 12, 2014, the plaintiff was crammed into a 300 square foot room that was locked at night, so that inmates were forced to wait for hours before being given access to the bathroom or to water. On March 9, 2015, the plaintiff was moved from Cheshire Correctional Institution to Osborn Correctional Institution, where he was housed in a one-person cell with another inmate, and was forced to sleep in a top bunk with no ladder. In addition, the plaintiff was provided contaminated water and was exposed to improper ventilation. More specifically, as to ventilation, there was no smoke detector or sprinkler in case of fire, and " the vent was clogged with caked on dust." As to the water, the water from the sink in the plaintiff's cell turned his cellmate's sock into a " dark rusty brown color, " which meant that the water was contaminated. Finally, the department of correction has an unconstitutional policy in regard to Department of Correction Administrative Directive 6.10, because an inmate is not considered indigent until ninety days from the time that the inmate's account balance is less than $5. This means that the inmate is deprived of basic human rights such as soap, shampoo, toothpaste, and envelopes during that ninety-day time period.
Department of Correction Administrative Directive 6.10(3)(E), defining " Indigent Inmate, " states: " An inmate shall be considered indigent when he or she has less than five dollars ($5.00) on account at admission or when the monetary balance in his or her inmate trust account, or in any other known account, has not equaled or exceeded five dollars ($5.00) at any time during the preceding ninety (90) days."
As to the claim that the defendant failed to provide him with proper access to the courts, the plaintiff alleges that he was denied envelopes which he requested " to notify the courts because [he] had become indigent." The plaintiff further alleges that, while at Cheshire Correctional Institution, he was continually denied access to the library to make legal copies, and was also denied access to notarial services to authenticate his documents. Moreover, the plaintiff was restricted to filing only one grievance per month while at the Osborn Correctional Institution, and was thus not able to grieve all his issues.
Finally, as to the violation of the first amendment, the plaintiff alleges that the Department of Correction has continually denied him access to religious services since December 23, 2012. The plaintiff further alleges that he has filed four separate grievances on this issue, and that this constitutes deliberate indifference.
As to relief, the plaintiff requests punitive monetary damages against the defendant. The plaintiff states that he has brought the present action against the defendant in both his official and individual capacity, for $10 million.
Even though Semple is the only named defendant, the plaintiff seeks damages from Semple and the state of Connecticut.
On December 21, 2015, the defendant filed a motion to dismiss. On December 29, 2015, the plaintiff filed an objection to the motion. The matter was heard at short calendar on May 23, 2016.
The defendant did not submit any authenticated exhibits. The only exhibit is a copy of the criminal conviction case detail that was printed from the state of Connecticut judicial branch website.
The plaintiff did not submit any exhibits.
On July 6, 2016, the plaintiff filed a " motion to dismiss without prejudice." The plaintiff filed the motion " on the ground that [his] original complaint is defective and cannot be amended at this point in time and that [he] may resubmit a new complaint in the future with this court or some other court regarding similar issues."
II
DISCUSSION
" [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). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). Moreover, " [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). Thus, " 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, " [t]he doctrines of sovereign immunity and federal qualified immunity also implicate the court's subject matter jurisdiction." 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. Comm'r of Revenue Servs., 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 Braham v. Newbould, 160 Conn.App. 294, 308-09, 124 A.3d 977 (2015) (affirming the court's dismissal of the plaintiff's federal claims against the defendants in their individual capacities for money damages even though federal qualified immunity was raised sua sponte).
Finally, the doctrines of standing and mootness both implicate subject matter jurisdiction, and are properly raised by a motion to dismiss. See Janulawicz v. Commissioner of Correction, 310 Conn. 265, 270, 77 A.3d 113 (2013) (" [J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." [Internal quotation marks omitted.])
" [P]risoner's alleged failure to exhaust administrative remedies properly is the focus of a motion to strike rather than a motion to dismiss, as it does not implicate the subject matter jurisdiction of the court." Johnson v. Rell, 119 Conn.App. 730, 734 n.4, 990 A.2d 354 (2010).
" 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).
In the present case, the defendant argues that the court should dismiss the plaintiff's action for lack of subject matter jurisdiction on the ground that: (1) the plaintiff lacks standing as to his denial of access to the courts claim and eighth amendment claims; (2) the plaintiff's claims are moot because the plaintiff is no longer in the custody of the Department of Correction; (3) the plaintiff's claims are barred by sovereign immunity, statutory immunity, and qualified immunity; (4) the plaintiff's claims are barred for lack of exhaustion of administrative remedies; and (5) for lack of personal involvement.
The last two grounds do not implicate jurisdiction, and are not properly raised by motion to dismiss. See Johnson v. Rell, 119 Conn.App. 730, 733-34 n.4, 990 A.2d 354 (2010) (" prisoner's alleged failure to exhaust administrative remedies properly is the focus of a motion to strike rather than a motion to dismiss, as it does not implicate the subject matter jurisdiction of the court"); Osuch v. Hull, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-4014443-S, (July 17, 2012, Jennings, J.T.R.) (" The subject matter jurisdiction of a court is not implicated when a respondeat superior claim is brought in a § 1983 action. The proper procedural vehicle to attack such a claim would be a motion to strike, as the challenge being made, in effect, is that the plaintiff has failed to state a legally sufficient cause of action against the supervisor defendant").
A
Standing (Access to the Courts Claim and Eighth Amendment Claims)
" Standing . . . is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002).
1. Denial of Access to the Courts
" To establish standing for a claim for the denial of access to the courts, an inmate must show that he has suffered an 'actual injury' traceable to the challenged conduct of prison officials--that is, that a 'nonfrivolous' legal challenge to his judgment of conviction or conditions of confinement 'had been frustrated or was being impeded' due to the actions of prison officials. Lewis v. Casey, 518 U.S. 343, 351-53, 355, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)." Amaker v. Fischer, 453 Fed.Appx. 59, 63 (2d Cir. 2011). " [T]he constitutional basis for the right [of access to the courts] appears to be unsettled." (Internal quotation marks omitted.) Doe v. Central Intelligence Agency, 576 F.3d 95, 105 n.7 (2d Cir. 2009). The " [d]ecisions of [the United States Supreme Court] have grounded the right of access to courts in the Article IV Privileges and Immunities Clause . . . the First Amendment Petition Clause . . . the Fifth Amendment Due Process Clause . . . and the Fourteenth Amendment Equal Protection . . . and Due Process Clauses." (Citations omitted.) Christopher v. Harbury, 536 U.S. 403, 415 n.12, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002).
Although the constitutional basis of the right is not settled, " [i]t 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).
In the present case, the plaintiff has not identified the constitutional basis for his right to access to the courts.
" [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.
" 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, supra, 518 U.S. 351. 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 & 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.
In the present case, although the plaintiff alleges that he has been denied access to the copier and to notarial services, as well as access to legal envelopes, the plaintiff has not alleged facts that would show that these deprivations resulted in actual injury. Moreover, in the present action, the plaintiff has successfully brought multiple claims against the defendant. In his objection to the present motion to dismiss, the plaintiff submitted a memorandum with citations to case law and statutes. 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 may also take judicial notice of other civil actions that the plaintiff brought against various defendants. The plaintiff has commenced at least two other actions: Stocking v. Austin, Docket No. CV-15-5017037-S, and Stocking v. Sullivan, Docket No. CV-15-5017039-S. The plaintiff has not submitted any admissible evidence, nor has he alleged or argued, that either of his actions was dismissed because of inadequate legal assistance.
Thus, based on the foregoing, the plaintiff has failed to show that he has suffered an actual injury, namely, that the defendant's 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").
2. Eighth Amendment
Although the plaintiff's complaint includes many general grievances about the conditions of the prison, in contrast to Johnson v. Rell, 119 Conn.App. 730, 738 n.8, 990 A.2d 354 (2010), the plaintiff has also alleged direct injury. Specifically, the plaintiff alleges that he was not provided with toothpaste, even though he requested the item in writing. Moreover, the plaintiff alleges that, on September 12, 2014, he was deprived of water and the use of the bathroom " for hours." Even if the plaintiff's claims do not adequately allege an eighth amendment violation, the plaintiff has sufficiently alleged direct injury for the purposes of standing. Accordingly, the court must next address federal sovereign immunity as to any official capacity claims, as well as federal qualified immunity as to any remaining individual capacity claims, including the plaintiff's first amendment, eighth amendment, and fraud and discrimination claims.
In Johnson, the plaintiff's " complaint enumerated a laundry list of conditions at [Osborn] which are the basis of [his] constitutional challenge. Specifically, he alleged that Osborn is overcrowded, averring that [t]he cells . . . were originally built as single cells containing one bed per cell, a desk, a toilet and sink and a storage chest . . . A vast majority of the cells at [Osborn] now contain two inmates per cell. The plaintiff also alleged, inter alia, that [t]he ventilation system is grossly inadequate; that [t]he heating system is . . . inadequate and ineffective; that [t]he plumbing is not in adequate and working condition; that various fire hazards exist within Osborn; that [t]he procedures for the cleaning of cells . . . are inadequate; that [t]he shower facilities . . . are deplorable; that [r]ecreation[al] opportunities . . . are grossly inadequate; that [t]he dining facilities and food preparation areas . . . are unsanitary; and that [t]he staffing of the medical department . . . is grossly inadequate. Exposure to such conditions, he alleged, constituted cruel and unusual punishment in violation of the eighth amendment to the United States constitution." (Internal quotation marks omitted.) Id., 732-33.
B
Federal Sovereign Immunity
Any remaining federal claims for monetary damages against the defendant in his official capacity may be barred by federal sovereign immunity.
" 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). As such, " [w]hen sovereign immunity is claimed as a defense to a cause of action pursuant to [42 U.S.C.] § 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." (Footnote omitted.) Sullins v. Rodriguez, supra, 140.
Although the plaintiff does not allege that he commenced his federal constitutional claims under § 1983, " 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 -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).
" [A] state 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 . . . A state official sued in his official capacity for monetary damages is also not subject to suit under § 1983. [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; internal quotation marks omitted.) Braham v. Newbould, supra, 160 Conn.App. 308-09.
" '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 Dep't 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]. 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. Conn. Dep't of Corr., 349 F.Supp.2d 278, 288 (D. Conn. 2004).
As recently explained by our Appellate Court, " [t]he United States Supreme Court in Will [ v. Michigan Dept. of State Police, 491 U.S. 58, 71 n.10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)] recognized, however, on the basis of its prior decisions in Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), and Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), that a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State." (Internal quotation marks omitted.) Braham v. Newbould, supra, 160 Conn.App. 309.
Before addressing the defendant's immunity, however, the court must first determine whether the defendant is sued in his individual or official capacity. " 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). Under federal law, an action may be brought against the defendants in both the official capacity and the individual capacity. See id. In addition, an unambiguous statement in the complaint regarding the capacity in which the defendants are 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 test set forth in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975), which is used to determine whether a state action against defendants is in the individual or official capacity, is not applicable to federal § 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, the complaint explicitly states that the defendant is sued in both his personal and official capacity. As such, the plaintiff's federal claims are brought in both the individual and official capacity.
Furthermore, because the state has not waived sovereign immunity, the defendant, as a state employee, is immune from claims seeking monetary damages resulting from the performance of his official duty. Here, because the plaintiff is only seeking monetary damages, and has not requested injunctive or declaratory relief, the federal claims against the defendant in his official capacity are barred by federal sovereign immunity.
The federal sovereign immunity analysis has been applied to the plaintiff's federal claims, even though the plaintiff has not alleged that the action was brought pursuant to § 1983. Nevertheless, even if state sovereign immunity analysis is applied, the plaintiff's federal claims would still be barred because the undisputed evidence shows that the claims commissioner has not authorized the plaintiff to initiate the action for money damages against the state, and the plaintiff is not seeking injunctive or declaratory relief. See Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).
C
Federal Qualified Immunity
The remaining federal claims against the defendant in his individual capacity may be barred by qualified immunity. " [A] claim for qualified immunity from liability for damages under § 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." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 216, 9 A.3d 347 (2010).
" Under federal law, the doctrine of qualified immunity shields officials from civil damages liability for their discretionary actions as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Qualified immunity is an immunity from suit rather than a mere defense to liability and, therefore, protects officials from the burdens of litigation for the choices that they make in the course of their duties . . . Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus, the United States Supreme Court has recognized qualified immunity for government officials [when] it [is] necessary to preserve their ability to serve the public good or to ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service. Wyatt v. Cole, 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992)." (Internal quotation marks omitted.) Brooks v. Sweeney, supra, 299 Conn. 216.
" Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct . . . We recently reaffirmed that lower courts have discretion to decide which of the two prongs of qualified immunity analysis to tackle first." (Internal quotation marks omitted.) Braham v. Newbould, supra, 160 Conn.App. 302, citing Ashcroft v. al- Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011).
It is well-established that " [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).
As to the first prong for qualified immunity, " a court . . . is required to articulate the elements of a constitutional violation and, taking the facts in the light most favorable to the plaintiff, determine whether there would be a violation of the plaintiff's constitutional rights under those facts." (Internal quotation marks omitted.) Brooks v. Sweeney, supra, 299 Conn. 217, citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). " This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable." (Internal quotation marks omitted.) Brooks v. Sweeney, supra, 299 Conn. 217, citing Saucier v. Katz, supra, 533 U.S. 201.
The first prong will be addressed first in the present case. As such, in regard to the claims for the violation of the first amendment, the violation of the eighth amendment, and " Fraud and Discrimination" in violation of federal law, the court must determine whether there would be a violation of the plaintiff's constitutional rights under the alleged facts.
1. First Amendment
" [A]lthough prisoners do not abandon their constitutional rights at the prison door, [l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system . . . Accordingly, the Court held that a challenged prison regulation is judged under a reasonableness test less restrictive than that ordinarily applied: a regulation that burdens a protected right passes constitutional muster if it is reasonably related to legitimate penological interests . . .
" Courts must evaluate four factors in making the reasonableness determination: [1] whether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective; [2] whether prisoners have alternative means of exercising the burdened right; [3] the impact on guards, inmates, and prison resources of accommodating the right; and [4] the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests . . . The first . . . factor is more properly labeled an element because it is not simply a consideration to be weighed but rather an essential requirement . . .
" The prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs . . . The defendants then bear the relatively limited burden of identifying the legitimate penological interests that justify the impinging conduct; the burden remains with the prisoner to show that these [articulated] concerns were irrational." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006).
The Second Circuit court recently observed that " [i]t has not been decided in [the Second] Circuit whether, to state a claim under the First Amendment's Free Exercise Clause, a prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs." (Internal quotation marks omitted.) Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014). The United States District Court of Connecticut has reasoned that " [o]ther courts within this circuit have noted that the Second Circuit has applied this standard without specifically adopting it. Thus, they follow suit and will continue to apply the substantial burden test until the Second Circuit holds otherwise . . . This court will follow that approach." (Citation omitted.) Hayes v. Bruno, United States District Court, Docket No. 3:14CV1203 (AWT), (D.Conn. March 21, 2016).
" It is well established that prisoners have a constitutional right to participate in congregate religious services . . . A prisoner's right to practice his religion is, however, not absolute." (Citation omitted.) Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). " [A]n individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individual's own scheme of things, religious." (Internal quotation marks omitted.) Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003). The court must be wary of " question[ing] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." (Internal quotation marks omitted.) McEachin v. McGuinnis, 357 F.3d 197, 201 (2d Cir. 2004).
In the present case, the plaintiff has failed to allege or present evidence that he belongs to any particular religious group or denomination. More importantly, regardless of whether the plaintiff belongs to a specific organized religion, the plaintiff has failed to allege any facts or submit any evidence that would indicate that his religious beliefs were " sincerely held" or that his beliefs were " substantially burdened." The complaint only states that he was denied access to religious services and that he has previously filed grievances. Thus, the plaintiff has failed to allege a viable first amendment constitutional claim.
2. Eighth Amendment Claims
The eighth amendment prohibits the infliction of " cruel and unusual punishments." U.S. Const., amend. VIII. Under the eighth amendment, officials may not " create inhumane prison conditions, deprive inmates of basic necessities, or fail to protect their health or safety." Overton v. Bazzetta, 539 U.S. 126, 137, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003). " [T]he Constitution does not mandate comfortable prisons." Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Instead, the eighth amendment requires that " [c]onditions must not involve the wanton and unnecessary infliction of pain . . ." Id., 347. " There are three basic theories pursuant to which inmates customarily bring Eighth Amendment claims: (1) denial of adequate medical care; (2) unconstitutional conditions of confinement unrelated to medical care; and (3) failure to protect." Randle v. Alexander, 960 F.Supp.2d 457, 470 (S.D.N.Y. 2013).
" To state an Eighth Amendment claim based on conditions of confinement, an inmate must allege that: (1) objectively, the deprivation the inmate suffered was sufficiently serious that he was denied the minimal civilized measure of life's necessities, and (2) subjectively, the defendant official acted with a sufficiently culpable state of mind . . . such as deliberate indifference to inmate health or safety." (Internal quotation marks omitted.) Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013).
" To meet the objective element, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health . . . Thus, prison officials violate the Constitution when they deprive an inmate of his basic human needs such as food, clothing, medical care, and safe and sanitary living conditions . . . [T]here is no static test to determine whether a deprivation is sufficiently serious; the conditions themselves must be evaluated in light of contemporary standards of decency . . . Moreover, conditions of confinement may be aggregated to rise to the level of a constitutional violation, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise." (Citations omitted; internal quotation marks omitted.) Id.
To meet the subjective element, " [a]n 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, 288 Conn. 326, 338-39, 952 A.2d 764 (2008).
" 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.
In other words, " [t]he 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. 9:09CV 1058 (GLS/ATB), (N.D.N.Y. September 30, 2015).
In the present case, as to the conditions of confinement, the plaintiff does not allege any facts or submit any evidence that the defendant acted with deliberate indifference. The plaintiff does not allege that the defendant was aware of facts from which an inference could be drawn that a substantial risk of serious harm exists. More specifically, the plaintiff does not allege any facts that would show that the defendant knew that the plaintiff was denied access to envelopes or toothpaste, or that he was crammed into a small 300 square foot room that was locked at night, or that he was forced to wait for hours before being given access to the bathroom or to water, or that he was provided with allegedly contaminated water and was exposed to improper ventilation. In fact, the plaintiff's complaint only mentions the defendant in the request for relief.
As to medical care, the plaintiff is essentially alleging that he was negligently misdiagnosed, and that this constitutes medical malpractice because an incorrect diagnostic test was performed and because there was a delay in examination and treatment. In the absence of any allegation or evidence that the doctor or nurse acted with a conscious disregard of a substantial risk of serious harm, the plaintiff's complaint that a physician or nurse has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the eighth amendment. Furthermore, much like with the claim for conditions of confinement, the plaintiff does not allege that the defendant, who is not a physician or nurse, was aware of the plaintiff's medical condition or any medical risks.
Therefore, for the reasons stated, the plaintiff has failed to state a viable eighth amendment violation claim.
3. Fraud and Discrimination
The plaintiff has failed to cite to any case law that would support the argument that Counselor Smith's allegedly incorrect application of Administrative Directive 9.2 states a claim for either an eighth amendment violation, or for " Fraud and Discrimination." A review of the relevant law does not reveal that the defendant has violated the eighth amendment and/or engaged in fraud and discrimination.
D
State Sovereign Immunity
The court must address state sovereign immunity because there is a passing reference to state claims, such as medical malpractice and " Fraud and Discrimination."
" 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, supra, 89 Conn.App. 751.
" 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 . . . 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." (Citation omitted; internal quotation marks omitted.) Kenney v. Weaving, 123 Conn.App. 211, 216, 1 A.3d 1083 (2010).
" To determine whether an action is against sthe 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 . . . 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, supra, 123 Conn.App. 216.
Here, the first Spring criterion is satisfied because the defendant is a state official, namely, the Commissioner of Correction. The second criterion is met because the present action involves interactions with the plaintiff that only occurred during the course of the defendant's employment, and the claims against the defendant concern a matter in which he represented the state, namely, acting as the Commissioner of Correction. The fourth criterion is satisfied because any judgment against the defendant would operate to control the activities of the state, including the treatment of prisoners.
The defendant is identified as the commissioner of the Department of Correction in both the summons and the request for relief.
The third criterion, whether the state is the real party against whom relief is sought, is the critical element in the present case. The third criterion may be satisfied when " damages sought by the plaintiff are premised entirely on injuries alleged to have been caused by the defendants in performing acts that were part of their official duties." Cimmino v. Marcoccia, 149 Conn.App. 350, 359-60, 89 A.3d 384 (2014); see also Somers v. Hill, supra, 143 Conn. 480; Macellaio v. Newington Police Dep't, 142 Conn.App. 177, 181, 64 A.3d 348 (2013); Kenney v. Weaving, supra, 123 Conn.App. 216-17. " 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.).
In the present case, the plaintiff seems to bring claims under state law against the defendant, including medical malpractice and " Fraud and Discrimination" in violation of state law. Except for the request for relief, the plaintiff does not name the defendant in any of the allegations, and has not alleged that the defendant personally participated in any of the alleged unlawful acts. As such, the present action is necessarily based on acts that the defendant performed in his official capacity as commissioner. In addition, in the summons, the defendant is identified by his official title as commissioner, and only his work address is listed. Therefore, the state is the real party against whom relief is sought, and the third criterion is also satisfied.
Thus, because all four criteria are satisfied, the claims for medical malpractice and " Fraud and Discrimination" in violation of state law are really against the state. Even though the four criteria are satisfied, the plaintiff may, nevertheless, avoid the bar of the doctrine of sovereign immunity by showing 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). " 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." (Internal quotation marks omitted.) Id., 350.
" For a claim made pursuant to the first exception, this 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." (Internal quotation marks omitted.) Id., 349-50. Furthermore, " [i]n the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." Id., 351. If the plaintiff does not receive authorization from the claims commissioner, then " the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity." (Internal quotation marks omitted.) Tuchman v. State, supra, 89 Conn.App. 752.
In the present case, the plaintiff only seeks monetary damages, and does not request injunctive or declaratory relief. As such, sovereign immunity bars the plaintiff's state claims unless either the state has statutorily waived immunity, or the claims commissioner has authorized the plaintiff to initiate the action for money damages against the state. Here, the plaintiff has not alleged or argued that the state has statutorily waived immunity. Moreover, even though the plaintiff refers to a claim filed with the claims commissioner, numbered 23196, it is the plaintiff's burden to prove subject matter jurisdiction. The plaintiff has not submitted any documents in support. Thus, the undisputed evidence shows that the claims commissioner has not authorized the plaintiff to initiate the action for money damages against the state.
Therefore, for the foregoing reasons, the plaintiff's state claims, including medical malpractice and " Fraud and Discrimination" in violation of state law, must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity.,
When sovereign immunity applies, the court does not need to address statutory immunity. 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.
The defendant's alternative arguments that the plaintiff's claims are barred for lack of exhaustion of administrative remedies and for lack of personal involvement will not be addressed because, for the foregoing reasons, there is a lack of subject matter jurisdiction as to all of the plaintiff's claims. Likewise, even though mootness implicates subject matter jurisdiction, the issue will not be addressed because there is a lack of subject matter jurisdiction on other grounds.
III
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to dismiss the plaintiff's entire complaint.
SO ORDERED.
The Appellate Court held that, " [b]y the plaintiff's own admission, the complaint is comprised of a laundry list of conditions at Osborn with which he takes issue, but nowhere in the complaint does he allege any injuries arising therefrom . . . Taken in a light most favorable to the plaintiff, his complaint alleges that Osborn contains overcrowded and inhumane conditions. Nevertheless, absent an allegation of direct injury, it remains the province of the political branches to shape that institution of government. Absent an allegation of direct injury, the plaintiff lacked standing to invoke the jurisdiction of the court." (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., 738-39.