Opinion
NNHCV175038715
09-05-2018
Ian WRIGHT v. James DZURENDA, et al.
UNPUBLISHED OPINION
OZALIS, J.
I.
FACTUAL AND PROCEDURAL HISTORY
On July 24, 2017, the plaintiff, Ian Wright, filed a three-count complaint (original complaint) against several defendants, including the defendant Steven Pichiarallo (defendant), sounding in alleged violations of the plaintiff’s constitutional rights while he was incarcerated. The third count of the original complaint alleged that the defendant, a state marshal, failed to properly serve the intended defendants of a separate action, resulting in that action’s dismissal. According to the complaint, the defendant’s failure constituted a violation of the plaintiff’s right of access to the courts under the United States constitution. The defendant filed a motion to strike the third count on September 21, 2017, which was granted by the court on November 24, 2017 (Vitale, J.) . The plaintiff subsequently filed a substituted complaint on December 6, 2017, modifying the third count to allege that the defendant’s failure constituted a violation of the plaintiff’s rights under article first, § § 8, 10, 13, and 20 of the Connecticut constitution, and adding a fourth count sounding in negligence against the defendant. The defendant filed the present motion, his second motion to strike, on December 20, 2017. The plaintiff filed a request to amend the substituted complaint on February 13, 2018, incorporating the same changes to the third count and the additional fourth count as was contained in the substituted complaint. The defendant did not object to the amendment. The present motion was argued before this court on June 28, 2018.
This court is aware of the plaintiff’s self-represented status and takes the same into consideration. "Although [this court] will not entirely disregard our rules of practice, [it does] give great latitude to pro se litigants in order that justice may both be done and be seen to be done ... For justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can [this court] disregard completely our rules of practice." (Internal quotation marks omitted.) Shobeiri v. Richards, 104 Conn.App. 293, 296, 933 A.2d 728 (2007).
Because the present motion concerns only the defendant Steven Pichiarallo, this memorandum will refer to him as "defendant" unless otherwise noted.
Article first, § 8 of the Connecticut constitution provides: "In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger."
Article first, § 10 of the Connecticut constitution provides: "All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."
Article first, § 13 of the Connecticut constitution provides: "No person shall be attainted of treason or felony, by the legislature."
Article first, § 20 of the Connecticut constitution provides: "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin."
II.
DISCUSSION
The defendant moves to strike the third count of the substituted complaint because it fails to plead facts necessary to maintain such an action. The third count alleges that the plaintiff’s rights of access to the courts under the Connecticut constitution were violated by the defendant’s conduct. "[A] party may challenge the legal sufficiency of an adverse party’s claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).
To evaluate the legal sufficiency of the third count, we must first establish the scope of the plaintiff’s rights under the Connecticut constitution. Our Supreme Court has generally interpreted the state and federal constitutions as providing essentially equivalent protections in matters relating to the right of access to the courts. See State v. Fernandez, 254 Conn. 637, 657, 758 A.2d 842 (2000). Under federal law, "[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." (Emphasis added.) Bounds v. Smith, 430 U.S. 817, 828, 52 L.Ed.2d 72, 97 S.Ct. 1491 (1977). "Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action." (Internal quotation marks omitted.) United States v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 941 F.2d 1292, 1295 (2d Cir. 1991), cert. denied, 502 U.S. 1091, 112 S.Ct. 1161, 117 L.Ed.2d 408 (1992). "Those seeking to vindicate their rights in court enjoy a constitutional right of access to the courts that prohibits state actors from impeding one’s efforts to pursue legal claims." (Emphasis added.) May v. Sheahan, 226 F.3d 876, 883 (7th Cir. 2000). The duty to ensure a confined person’s constitutional right of access to the courts falls, therefore, on the shoulders of the state and its actors. "State marshals are not, however, state employees and are explicitly forbidden from employment by the state while they are serving as marshals ... Rather, state marshals are independent contractors ..." (Citation omitted.) Kim v. Emt, 153 Conn.App. 563, 569, 102 A.3d 137, cert. denied, 315 Conn. 908, 105 A.3d 236 (2014). If the defendant’s conduct could be considered to implicate the plaintiff’s constitutional rights of access to the courts, it would have to be shown that the plaintiff was engaged in state action. This the plaintiff has failed to do.
This court previously granted the defendant’s motion to strike the third count of the plaintiff’s complaint, sounding in the defendant’s right of access to the courts under the United States constitution, in part because the plaintiff failed to allege that the defendant’s conduct could be considered "state action." Wright v. Dzurenda, Superior Court, judicial district of New Haven, Docket No. CV- 17-5038715-S (November 24, 2017, Vitale, J.) . In the defendant’s amended complaint, the third count now cites a violation of the plaintiff’s right to access the courts under the Connecticut constitution. Our Supreme Court ruled in State v. Fernandez, supra, 254 Conn. 657, that a previous finding that "there was no denial of access to the courts and no denial of the right to self-representation under the United States constitution eliminate[d] the need for [the court] to evaluate the [same] claim on state constitutional grounds." Likewise, although the plaintiff in the present action invokes the Connecticut constitution instead of the United States constitution as the basis of his claim, he has not presented any new allegation that would suggest service of a complaint by a state marshal constitutes "state action." Accordingly, the defendant’s motion to strike the third count of the substituted complaint is granted.
In his motion, the defendant also moved to strike the fourth count of the substituted complaint, arguing it was inappropriately added after the defendant’s previous motion to strike. In oral argument before this court on June 28, 2018, the defendant withdrew that portion of the present motion, acknowledging that the plaintiff’s subsequent amended complaint, which included the fourth count, cured that error. The defendant did not object to that amendment. Accordingly, this court declines to consider the defendant’s motion to strike the fourth count.
III.
CONCLUSION
Based on the foregoing, the defendant’s motion to strike the third count of the substituted complaint is granted and the motion to strike the fourth count of such complaint is denied.