Opinion
HHDCV175045715S
01-23-2019
Daniel DIAZ v. Counselor Maribel BERRIOS et al.
UNPUBLISHED OPINION
Dubay, J.
I
Procedural History
On August 16, 2017, the plaintiff, Daniel Diaz, filed his ten-count complaint, which alleges that the defendant, Counselor Berrios, in her individual capacity, violated the plaintiff’s federal and state constitutional rights. The plaintiff asserts his federal constitutional rights pursuant to 42 U.S.C. § 1983 and his parallel state constitutional rights pursuant to state tort law. The plaintiff alleges the following facts. The defendant is an employee of the state of Connecticut and works for the Department of Corrections. The defendant discriminated against the plaintiff by failing or refusing "to secure a working typewriter so that the plaintiff could meet his filing deadlines." The defendant "retaliated against the plaintiff by claiming that she would ‘set the plaintiff up and issue [him] a disciplinary report’ if the plaintiff kept complaining about the unit typewriter." (Emphasis omitted.) The defendant "devised a scheme to deny the plaintiff access to the courts" by "flatly refus[ing] to give the plaintiff his [two additional pre-approved legal phone] calls." The defendant’s acts and omissions described constitute a deprivation of the plaintiff’s constitutional rights and these acts were "carried out under color of law but had no justification or excused and were gratuitous, illegal, malicious, improper, and unrelated to activities which employees" in the defendant’s position may "legally engage in the course of protecting persons, the public or ensuring civil order." At all relevant times, the defendant acted "outside the scope of her duties and jurisdiction, nonetheless, acted wilfully, knowingly, maliciously and purposefully with the specific intent to deprive the plaintiff of his right[s] to: due process of law; equal protection of law; freedom from racial discrimination; freedom of association; deprivation of liberty; cruel and unusual punishment." The plaintiff prays for monetary damages as well as declaratory and injunctive relief.
Each paragraph of the complaint is labeled as a separate count, but the entire complaint is styled as a "U.S. 1983 Civil Rights Lawsuit."
The return of service indicates that the defendant’s full name is Maribel Berrios. "Counselor" is simply the defendant’s title.
On June 28, 2018, the defendant moved for summary judgment (#112) and filed a memorandum of law in support thereof (#113). Attached to her memorandum of law, the defendant submitted the following evidence: (1) a sworn affidavit of the defendant; (2) an inmate request form dated June 6, 2017; (3) an administrative directive concerning inmate communications; (4) three inmate request forms dated June 2, 2017; June 8, 2017; and June 19, 2017; (5) the plaintiff’s legal phone call log for June 2017; (6) an administrative directive concerning inmate administrative remedies; (7) a housing card indicating the plaintiff’s specific housing location while incarcerated; and (8) a sworn affidavit of Jessica Bennet.
On August 9, 2018, the plaintiff filed his opposition (#114) to the defendant’s motion for summary judgment. The plaintiff submitted an affidavit (#115) in support of his opposition, to which he attached three exhibits: (1) an inmate request form dated July 8, 2016; (2) an inmate request form dated June 21, 2017; and (3) another inmate request form dated September 25, 2017. The court heard oral argument on the defendant’s motion on November 26, 2018.
II
Discussion
"[I]t is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party ... we are also aware that [a]lthough we allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with the relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Berka v. Middletown, 181 Conn.App. 159, 163, 185 A.3d 596, cert. denied, 328 Conn. 939, 184 A.3d 268 (2018).
"Practice Book § 17-49 provides that summary 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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which ... entitle him to a judgment as a matter of law ..." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). "[O]nly [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [does] the burden [shift] to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013).
The defendant moves for summary judgment on the plaintiff’s complaint on five grounds: (1) the defendant is statutorily immune to any state law claims pursuant to General Statutes § 4-165; (2) the plaintiff has failed to exhaust his administrative remedies; (3) the plaintiff lacks standing; (4) the plaintiff fails to state a cause of action that should be heard by the court; and (5) the plaintiff’s claim under 42 U.S.C. § 1983 is barred by the doctrine of qualified immunity.
Section 4-165 provides that: "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."
Section 1983 provides that: "Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Some of the specific legal grounds the defendant relies upon in moving for summary judgment call into question the subject matter jurisdiction of the court and must be disposed of before the court may consider the underlying merits of the case. Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004) ("[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... and the court must fully resolve it before proceeding further with the case." [Internal quotation marks omitted]). "[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). "[Subject matter] [j]urisdiction ... is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Esposito v. Specyalski, supra. "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
"Pursuant to the Prison Litigation Reform Act of 1995 ... [n]o action shall be brought with respect to prison conditions under section 1983 ... or any other [f]ederal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted ... Exhaustion is mandatory and applies to all inmate suits about prison life ... [P]roper exhaustion [is required], which necessitates completion of the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit ... [The Appellate Court] likewise has held that although the Superior Court has jurisdiction to hear cases concerning prison conditions arising under federal law, a prisoner may bring such an action only after he has exhausted such administrative remedies are available ... At the same time ... a prisoner’s alleged failure to exhaust administrative remedies properly is the focus of a motion to strike ... as it does not implicate the subject matter jurisdiction of the court." (Citations omitted; internal quotation marks omitted) Johnson v. Rell, 119 Conn.App. 730, 733 n.4, 990 A.2d 354 (2010). The exhaustion doctrine equally applies to state constitutional claims. See Richardson v. Commissioner of Correction, 87 Conn.App. 46, 48, 863 A.2d 754 (2005). Based on the foregoing reasoning, the court shall not consider whether the plaintiff failed to adequately exhaust his administrative remedies in determining whether the court has subject matter jurisdiction because even if the plaintiff did fail to exhaust, it would merely defer jurisdiction, not destroy it.
A
Monetary Damage Claims
1
Standing
The defendant argues that the plaintiff lacks standing because: (1) access to a working typewriter while imprisoned is not a recognized right under the United States Constitution; (2) two extra monthly legal phone calls while imprisoned is not a recognized right under the United States Constitution; and (3) the plaintiff has not alleged any facts that indicate he lost motions or cases as a result of his inability to present pleadings that are typewritten. The plaintiff argues that he has standing because he has alleged an actual injury and then describes the defendant’s alleged conduct and explains that all issues before the court are constitutional issues.
"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause ... 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 the courts and parties are not vexed by suits brought to vindicate nonjusticiable interests ... [A] complainant [has standing when he] makes a colorable claim of direct injury he has suffered or is likely to suffer ... Two broad yet distinct categories of aggrievement exist, classical and statutory ... Classical aggrievement requires a two-part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest ... Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest ... Statutory aggrievement exists ... [when] particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Andross v. West Hartford, 285 Conn. 309, 321-22, 939 A.2d 1146 (2008). Aggrievement is established if there is a possibility ... that some legally protected interest ... has been adversely affected." (Internal quotation marks omitted.) Pomazi v. Conservation Commission, 220 Conn. 476, 483, 600 A.2d 320 (1991)
Section 1983 undoubtedly confers standing to individuals who have their federal constitutional rights violated by persons acting under color of state law. See § 1983. But to fully obtain statutory aggrievement, prisoners pursuing constitutional monetary damage claims must demonstrate, as a "constitutional prerequisite," the existence of an actual injury apart from the mere violation of his constitutional rights. Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Johnson v. Rell, 119 Conn.App. 730, 738 n.8, 990 A.2d 354 (2010).
In Binette v. Sabo, 244 Conn. 23, 25-26, 46, 710 A.2d 688 (1998), our Supreme Court recognized a damages action under the Connecticut Constitution, article first, §§ 7 and 9 and expressly declared that this "does not mean that a constitutional cause of action exists for every violation of our state constitution." Plaintiffs are able to bring actions for monetary damages for violations of state constitutional rights under General Statutes §§ 4-151 through 4-165b by filing his claims with the claims commissioner. Torres v. Armstrong, Superior Court, Docket No. CV-99-0427057-S (September 6, 2001 Thompson, J.).
Section 7 of article first is titled "Security from searches and seizures" and provides that: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."
Section 9 of article first is titled "Right of personal liberty" and provides that: "No person shall be arrested, detained or punished, except in cases clearly warranted by law."
The plaintiff alleges in his complaint that the defendant, by refusing to provide him a working typewriter and by refusing to give him two additional, pre-approved legal phone calls the defendant violated the plaintiff’s various constitutional rights. The plaintiff also impliedly alleges that his "filing deadlines" were at risk. The plaintiff, however, fails to describe any particular injury that resulted from the defendant’s actions. Even indulging all presumptions in his favor, the plaintiff does not allege any particular injury that arose out of his denial of a typewriter. For example, the plaintiff does not allege that he missed any court-imposed deadlines, was unable to prepare or file court papers, proceed with any of his cases, or that a motion was decided unfavorable due to an untimely filed paper. For a § 1983 action, these allegations are insufficient.
Nevertheless, in his objection to the defendant’s motion for summary judgment, the plaintiff explains that he was denied access to the courts by not being allowed to place two phone calls and was discriminated against by the defendant when he complained of this denial. The plaintiff seems to argue that the mere fact that constitutional rights are alleged to have been violated, that is sufficient for standing. But this argument has been rejected time and again by Connecticut courts and the federal courts. See, e.g., Lewis v. Casey, supra, 518 U.S. 351; Johnson v. Rell, supra, 119 Conn.App. 738 n.8.
The plaintiff also claims that he needed a typewriter because Practice Book § 67-2(a) provides that briefs "shall be typewritten," which threatened a pending matter the plaintiff was apparently attempting to file an interlocutory appeal in a habeas matter. The plaintiff attempted to identify the court case in his objection by providing a docket number of "CV17-5018397." While a party may move the court to take judicial notice of court records; State v. Gaines, 257 Conn. 695, 705 n.7, 778 A.2d 919 (2001); a trial court has the power to take judicial notice of court records in the same court sua sponte in a proper case. Guerriero v. Galasso, 144 Conn. 600, 605, 136 A.2d 497 (1957). The court deems this a proper case to take judicial notice of the plaintiff’s habeas matter, which is Diaz v. State, Superior Court, judicial district of New Britain, Docket No. CV-17-5018397. Upon review of the plaintiff’s habeas matter, the court granted a motion of extension of time, permitting the plaintiff until to file an opposition to the defendant’s motion to strike before June 19, 2017. The plaintiff never filed an opposition to the defendant’s motion to strike. The motion, however, was never ruled on. In addition, the plaintiff never filed an interlocutory appeal in this matter, nor is it clear that he would have had the legal right to do so. For these reasons, the court finds that the inability to have a "working" typewriter did not jeopardize any deadline the plaintiff had. Indeed, even if the plaintiff did file an opposition to the motion to strike past the extended time to file, the court must be solicitous of self-represented parties and may have considered an untimely filed objection. Berka v. Middletown, supra, 181 Conn.App. 163 (courts are solicitous of self-represented parties); Practice Book Section 1-8 (interpret rules of practice liberally to not work injustice).
The plaintiff also seems to allege a constitutional action under state tort law. But the plaintiff has not alleged which provisions of the state constitution he is asserting. Sections 7 and 9 of the Connecticut constitution are inapplicable based on the allegations. Therefore, this action must be brought pursuant to §§ 4-151 through 4-165b. Again, though, the plaintiff fails to allege how he was injured as a result of his constitutional rights being violated. Accordingly, the plaintiff lacks standing as to his damages claims. In the alternative, though, the court will reach additional grounds for why it lacks subject matter jurisdiction.
2
Qualified Immunity as to Section 1983 Monetary Damage Claims
The defendant argues that she is entitled to qualified immunity from the plaintiff’s § 1983 suit for damages because: (1) the plaintiff did not have a recognized constitutional right denied to him; and (2) even if the plaintiff did have a recognized constitutional right of his denied, the law at the time was not clear.
Qualified immunity implicates the court’s subject matter jurisdiction. See Braham v. Newbould, 160 Conn.App. 294, 306-07, 124 A.3d 977 (2015) (affirming dismissal for lack of subject matter jurisdiction because defendant entitled to qualified immunity). "Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known." Morgan v. Bubar, 115 Conn.App. 603, 625, 975 A.2d 59 (2009). Qualified immunity is "an entitlement not to stand trial or face the burden of litigation ... The privilege is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." (Citation omitted; internal quotation marks omitted.) Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct., 150 L.Ed.2d 272 (2001). Qualified immunity claims require the court to decide: (1) whether the facts alleged make out a violation of a constitutional right and (2) whether the right at issue was clearly established at the time of the defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). This sequence is not mandatory and courts are "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. "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 217, 9 A.3d 347 (2010).
Qualified immunity, however, "does not bar actions for declaratory or injunctive relief." Adler v. Pataki, 185 F.3d 35, 48 (2d Cir. 1999).
a
Deprivation of Liberty Interest (Access to Courts)
"In order to prevail on [a] due process claim, the [plaintiff] must prove that: (1) he has been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty interest] has occurred without due process of law." Vandever v. Commissioner of Correction, 315 Conn. 231, 241, 106 A.3d 266, 273 (2014). Inmates have a fundamental constitutional right of access to the courts that requires prison authorities to take affirmative steps to assist inmates in the preparation of court papers. See Bounds v. Smith, 430 U.S. 817, 828, n.17, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). While "due process requires that prisoners have access to paper, pens, notarial services, stamps, and adequate library facilities" the Second Circuit Court of Appeals has held that there is "no constitutional right to a typewriter as an incident to the right of access to the courts" nor do inmates enjoy access to typewriters of a specific memory capacity. (Citation omitted; internal quotation marks omitted.) Taylor v. Coughlin, 29 F.3d 39, 40 (2d Cir. 1994); see also Wolfish v. Levi, 573 F.2d 118, 132 (2d Cir. 1978), rev’d on other grounds sub nom., Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Our Supreme Court has held that "neither the federal or state constitutions contains any such particularized right to confer with counsel telephonically as frequently as counsel desires [or] includes ... two thirty-minute telephone calls per month at the request of the inmate." Washington v. Meachum, 238 Conn. 692, 731, 680 A.2d 262 (1996) (holding that denial of inmate-initiated phone calls does not violate right to effective assistance of counsel or right to access courts); see also Pauls v. Donovan, United States District Court, Docket No. 3:04CV1525 (RNC) (D.Conn. January 22, 2008) (right of access to courts includes reasonably opportunities to seek and receive legal assistance and delay in processing legal phone calls for legal assistance, absent evidence to contrary, did not unjustifiably obstruct ability to receive professional representation).
Based on the foregoing reasoning, it is clear that there is no federal constitutional right to a working typewriter, much less a typewriter with memory capability. Furthermore, the plaintiff has no federal constitutional right to a specific number of legal phone calls with his attorney that he may initiate while incarcerated. Because the plaintiff has not alleged facts that make out a violation of a recognized constitutional right, the defendant is entitled to qualified immunity as to this alleged constitutional basis.
b
Discrimination and Equal Protection Claims
The central purpose of the equal protection clause is to "prevent the States from purposefully discriminating between individuals on the basis of race." Shaw v. Reno, 509 U.S. 630, 642, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). "A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification ... This rule applies to a classification that is neutral on its face but is an obvious pretext for racial discrimination." (Citations omitted; internal quotation marks omitted.) Id., 644-45. The equal protection clause also acts as a proscription on neutral laws having a disproportionate impact upon a racial minority, but only if that impact can be traced to a discriminatory purpose. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). "Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class ... the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials ... The [United States] Supreme Court [has] affirmed the validity of such class of one claims [when] the plaintiff alleges that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment ... In addition to showing such disparate treatment, the plaintiff also must show that the disparity in treatment cannot survive the appropriate level of scrutiny which, in the prison setting, means that the inmate must demonstrate that this treatment was not reasonably related to [any] legitimate penological interests." (Citations omitted; internal quotation marks omitted.) Mercer v. Champion, 139 Conn.App. 216, 236-37, 55 A.3d 772 (2012).
The plaintiff alleges that he was discriminated against on the basis of race but fails to allege any facts that substantiate that claim. Regardless, he may still rely on a "class of one" theory. But here, the plaintiff fails as well because he has not alleged facts that show he was intentionally treated differently from other inmates. For instance, the plaintiff has not alleged that other inmates with court deadlines were given "working typewriters" with memory capacity or give two additional, pre-approved legal phone calls. Furthermore, the plaintiff has not alleged facts that show that, even if he was treated differently, such treatment was not related to a legitimate penological interest. The plaintiff alleges that the defendant was, however, reckless and malicious in carrying out her alleged conduct. But a defendant certainly can carry out a legitimate penological interest recklessly although it is hard to conceive how a prison official could carry out a legitimate penological interest maliciously without violating the eighth amendment. As such, this will be analyzed in the next section as an eighth amendment claim. The plaintiff has not alleged facts sufficient to show that he had his equal protection rights violated and, accordingly, the defendant is entitled to qualified immunity on this theory.
c
Cruel and Unusual Punishment
The eighth amendment "prohibits detention in a manner that constitutes cruel and unusual punishment ... 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." (Citation omitted; internal quotation marks omitted.) Fuller v. Commissioner of Corrections, 75 Conn.App. 133, 136, 815 A.2d 208 (2003). Prison officials must "ensure that inmates receive adequate food, clothing, shelter and medical care, and must take reasonable measures to guarantee the[ir] safety" or they violate the eighth amendment to the United States constitution. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Fuller v. Commissioner of Corrections, supra. In challenging the conditions of confinement, the prisoner must show that: (1) "the alleged deprivation of adequate conditions ... [is] objectively, sufficiently serious"; Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); and (2) "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, 834. "Sufficiently serious" means that the inmate is "den[ied] the minimal civilized measure of life’s necessities." (Internal quotation marks omitted.) Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001). Deliberate indifference means that a "prison official cannot be found liable under the [e]ighth [a]mendment for denying an inmate inhumane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety." (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, supra, 136-37.
The plaintiff alleges that he was denied access to two pre-approved telephone calls and a working typewriter. Lack of access to either of these accommodations is not objectively, sufficiently serious because phone calls and a typewriter are not life necessities that are comparable to food, water, or shelter. Phone calls and a typewriter are, at best, important conveniences for modern life. An inmate’s inability to access additional, pre-approved legal phone calls or a typewriter is not cruel and unusual punishment. As such, the plaintiff’s eighth amendment rights have not been violated and, therefore, the defendant is entitled to qualified immunity on this constitutional theory.
d
Freedom of Association
"[T]he [federal] [c]onstitution protects certain kinds of highly personal relationships"; Roberts v. United States Jaycees, 468 U.S. 609, 618, 619-20, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984); but many of the liberties and privileges enjoyed by a private citizen must be surrendered by a prisoner because an inmate does not retain rights inconsistent with proper incarceration. See, e.g., Shaw v. Murphy, 532 U.S. 233, 229, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001). Four factors are relevant to deciding whether a prison regulation affecting a constitutional right survives incarceration can withstand a constitutional challenge: (1) whether the regular has a "valid, rational connection" to a legitimate governmental interest; (2) whether alternative means are open to inmates to exercise the asserted right; (3) what impact an accommodation of the right would have on guards and inmates and prison resources; and (4) whether any "ready alternatives" are available to the regulation. Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003).
The plaintiff alleges that the acts of the defendant infringed his right to associate with others. The plaintiff, however, has failed to identify any regulation that infringes upon the plaintiff’s right to associate. Even if he had, the plaintiff alleges nothing relevant to his first amendment right to freely associate with other persons. Rather, the actions complained pertain to the plaintiff’s alleged inability to effectively prepare for court proceedings. The plaintiff fails to allege a viable freedom of association claim and, therefore, the defendant is entitled to qualified immunity as to this constitutional theory.
e
Free Speech Retaliation
The plaintiff alleges in his complaint that the defendant retaliated against him by threatening to issue a disciplinary report if he continued to complain about the functionality of the typewriter he was provided. The plaintiff alleges this separately from the rights he raises that the defendant violated while allegedly acting outside the scope of her employment. But the plaintiff does style his complaint as a "U.S. Section 1983 Civil Rights Suit." The plaintiff alleges that the defendant was acting under color of state law, a necessary element of a § 1983 claim. In addition, the plaintiff seeks, inter alia, monetary damages for the defendant’s alleged violations of his constitutional rights. Section 1983 is a convenient legal mechanism in recovering monetary damages from a defendant for alleged violations of his first amendment rights, such as retaliation for the exercise of the plaintiff’s protected speech. See Connell v. Signoracci, 153 F.3d 74, 79 (1998); Dingwell v. Cossette, 327 F.Sup.3d 462, 469 (D.Conn. 2018). As such, the issue of whether the plaintiff’s free speech rights and whether those rights were clearly established will be analyzed as an additional constitutional theory upon which the plaintiff can base his § 1983 action. Accordingly, the free speech theory is subject to the qualified immunity analysis. The defendant has moved for summary judgment on this claim on the ground that there is no genuine issue of material fact that the defendant did not actually retaliate against the plaintiff. The court will consider the evidence submitted in deciding whether the defendant is entitled to qualified immunity as to this constitutional theory.
"[T]o sustain a First Amendment retaliation claim, a prisoner must demonstrate the following: (1) that the speech of conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." (Internal quotation marks omitted.) Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004). Private citizens alleging a first amendment retaliation claim must show their speech was actually chilled, but "in the prison context ... ‘adverse action [is defined] objectively, as retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights.’" Id., 381. "[T]his objective text applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits." Id. First amendment retaliatory claims filed by inmates, however, are to be viewed with skepticism because they are "difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated" and such claims "pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration." (Internal quotation marks omitted.) Dawes v. Walker, supra, 239 F.3d 493.
In support of her motion for summary judgment, the defendant submitted her sworn affidavit, in which she stated that she handled legal phone calls and legal mail for inmates assigned to the "O" housing unit. The defendant further stated that other requests, such as requests for typewriters, were, at the time, handled by other personnel. But the defendant stated that she did respond to one request for a typewriter made by the plaintiff on June 13, 2017. In her June 14, 2017 response, the defendant indicated to the plaintiff that the typewriter was working. The defendant then states that she informed the plaintiff that the request regarding the typewriter was being handled by other department of correction personnel. The defendant also submitted a certified copy of an inmate request form, dated June 13, 2017, that is authored by the plaintiff, in which he states that his typewriter is not working properly and implies this is problematic because he has two court filing dates upcoming on June 16, 2017, and June 19, 2017. On the same form, the defendant seems to have replied the next day indicating that the typewriter works fine except for the memory functionality. Additionally, the defendant submitted a certified document showing each housing unit the plaintiff has resided in, which shows that he resided in the "O" housing unit from June 1, 2017, through July 6, 2017.
Based on the evidence submitted, the parties only had contact from June 1, 2017, through July 6, 2017. During that time, the submitted evidence shows that the defendant only responded to a single request concerning a typewriter from the plaintiff and that the defendant informed him that other personnel were working on fulfilling his request more fully. The plaintiff’s allegation that the defendant retaliated against him "if the plaintiff kept complaining" implies that there was a series of complaints regarding a working typewriter. But this is impossible given the evidence submitted because the plaintiff only complained once to the defendant about the typewriter’s functionality. The plaintiff has submitted no evidence that shows that he complained about the typewriter more than once to the defendant or that the defendant threatened to retaliate against him by "[setting him] up" or "issu[ing] ... a disciplinary report" against him. Moreover, no evidence of actual retaliation has been submitted. Therefore, there is no genuine issue of material fact that the plaintiff did not suffer an adverse action for any protected speech and, as such, the plaintiff’s first amendment rights were not violated. Accordingly, the defendant is entitled to qualified immunity as to the plaintiff’s § 1983 claims.
2
Statutory Immunity as to State Law Monetary Damage Claims
To the extent that the plaintiff alleges a cause of action arising out of the Connecticut Constitution or state law, the defendant argues that she is statutorily immune from any suit for damages pursuant to § 4-165. The plaintiff argues that the supremacy clause of the United States Constitution overrides any statutory immunity conferred to the defendant by the state.
"Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 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). Section 4-165 provides that: "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, but alleges facts to the contrary. 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." In order to "overcome the immunity provided under § 4-165, a plaintiff must produce facts from which a reasonable person could infer that the defendant acted with the requisite mental state of recklessness and malice." (Emphasis omitted.) Manifold v. Ragaglia, 102 Conn.App. 315, 325, 926 A.2d 38 (2007).
In count two of the complaint, the plaintiff seems to allege a "cause of action under state law sounding tort." By alleging this, the plaintiff has raised some kind of state law claim against the defendant in her individual capacity, which is independent from his § 1983 claim. Section 4-165 is applicable to state law claims against defendants who are government employees sued in their individual capacity for actions taken pursuant to official duties. The plaintiff does not allege any facts that warrant the conclusion that the defendant was acting beyond the scope of her employment. Furthermore, the plaintiff has not alleged that he sought or received permission from the claims commissioner to bring the present action. No evidence to that effect has been submitted, either. Additionally, no facts are alleged that could lead a reasonable person to conclude that the defendant’s conduct in allegedly denying his two additional, pre-approved legal phone calls, failing to provide him a working typewriter or threatening retaliation for complaining, but not acting on it, was wanton, reckless, or malicious. While the plaintiff does allege that she was malicious or reckless, these statements are conclusory and insufficient in defeating statutory immunity. Accordingly, the defendant is immune from monetary damage claims pursuant § 4-165.
Nevertheless, the plaintiff argues that § 4-165 does not render the defendant immune from suit under § 1983. The plaintiff is correct in his assertion; Martinez v. California, 444 U.S. 277, 284 n.8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) ("Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 ... cannot be immunized by state law"); but misunderstands the defendant’s argument. A plain text reading of the statute reveals that a § 1983 action may only assert violations of federal rights. Section 4-165, by its terms, applies to a state law cause of action and not a federal cause of action. The plaintiff’s allegation that he asserts a "cause of action under state law sounding in tort" is, obviously, an action grounded in state law that is separate and apart from a § 1983 claim. The plaintiff’s argument has no bearing on the statutory immunity analysis.
To the extent that the plaintiff alleges a state law tort claim that seeks to vindicate his state constitutional rights, the defendant is statutorily immune from money damage claims.
B
Equitable Relief
The doctrine of mootness implicates subject matter jurisdiction. See, e.g., 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)). "[C]ourts have denied injunctive relief to prisoners challenging [the] conditions of [their] confinement on the ground that, due to discharge or transfer of the prisoner, the prisoner no longer confronts the problem that led to the lawsuit ... [T]he likelihood of irreparable injury, which is an essential ingredient of a case for injunctive relief ... is too speculative to warrant further inquiry." (Citations omitted.) Blake v. Lantz, Superior Court, judicial district of Hartford, Docket No. CV-08-5018476-S (July 24, 2013, Schuman, J.); see also Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (inmate’s claims for injunctive and declaratory relief concerning prison conditions moot upon prisoner’s transfer to another prison unit); Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir. 1976) (denying injunctive relief as moot where prisoner transferred); Carter v. Watson, 181 Conn.App. 637, 644-48, 187 A.3d 478 (2018) (inmate declaratory relief claim dismissed as moot because transferred from one prison facility to another). Where a court has already dismissed a plaintiff’s demands for monetary damages based on the same claims, a request for declaratory relief is moot because any declaration would add nothing to the case. See Blake v. Lantz, supra; Morgan v. Rowland, United States District Court, No. 3:01CV1107 (CFD) (D.Conn. March 17, 2006). A moot case, however, may be decided by a court where the claim is "capable of repetition, yet evading review" and the repetition will affect the plaintiff. Id.; see also Carter v. Watson, supra, 647 (cases that are "likely to become moot in the substantial majority of cases in which [they arise]" or allege events that give rise to claims are "part of a systemic, systematic, ongoing, frequent or even occasional pattern or practice at [any correctional institution]" are an exception to the mootness doctrine [internal quotation marks omitted]).
In support of her motion for summary judgment, the defendant submitted her sworn affidavit, in which she states that she has not been assigned as a counselor to the plaintiff since July 6, 2017. The defendant also stated that she was assigned to the "O" housing unit. The defendant also submitted a copy of the plaintiff’s inmate housing card which shows that he was no longer located in housing unit "O-34" because he was reassigned to the" " on July 6, 2017. The commenced this action on July 31, 2017. These facts are undisputed and, as such, it is clear that the plaintiff’s request for injunctive relief is now too speculative because he is no longer assigned to the defendant by virtue of the fact that he does not live in the "O" housing unit any longer. In addition, the plaintiff’s request for declaratory relief adds nothing to the present action because his demands for monetary damages have already been dismissed for lack of standing and the application of qualified immunity and statutory immunity in the alternative. Moreover, no evidence submitted suggests that this case is one that is capable of repetition but evades review. Indeed, the plaintiff alleges no systemic or continued conduct on the part of the defendant or any other prison official. Therefore, the plaintiff’s demands for injunctive and declaratory relief are moot and, accordingly, the court lacks subject matter jurisdiction.
III
Conclusion
For the foregoing reasons, the court lacks subject matter jurisdiction over the present action and, accordingly, the plaintiff’s action is dismissed.
So ordered.