Harnage v. Murphy

Full title: James A. Harnage v. Peter J. Murphy et al

Court: Superior Court of Connecticut

Date published: Aug 31, 2017

HHDCV145037637 (Conn. Super. Ct. Aug. 31, 2017)

Opinion

HHDCV145037637

08-31-2017

James A. Harnage v. Peter J. Murphy et al

Nina F. Elgo, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Nina F. Elgo, J.

The plaintiff, James A. Harnage, an inmate at MacDougall Walker Correctional Institution (MacDougall), has filed this action seeking monetary damages and injunctive relief with respect to certain practices and policies in effect at the Department of Correction (department). His twelve-count complaint names twenty-seven individuals employed by the department as defendants in both their official and individual capacities. Counts one, two and seven concern strip search procedures utilized by the department. Counts four and eleven pertain to the use of privacy sheets and window coverings inside the plaintiff's cell, while count three concerns the use of restrictive housing in a section of MacDougall known as the " Q-Pod." Counts six and ten contain allegations of retaliatory conduct, while counts eight and nine allege interference with the plaintiff's access to the courts and the inmate administrative remedy system (system). Lastly, count twelve alleges a violation of the right to privacy in attorney-client communications.

The plaintiff's complaint does not allege a violation of any federal or state statute, but rather alleges various constitutional violations.¹ Counts one, two, five, and seven allege violations of the plaintiff's right " to be free from unreasonable searches." ² Counts four and eleven allege violations of the plaintiff's " right to privacy and right to be free from unreasonable searches." Count three alleges a violation of the plaintiff's rights to due process and equal protection, as well as the prohibition against cruel and unusual punishment. Count six alleges a violation of the plaintiff's " right to freedom of speech, right of access to the courts, and right to a redress of his grievances." Count eight alleges a violation of the plaintiff's " right of access to the courts and right to a redress of grievances." Count nine alleges a violation of the plaintiff's " right of access to the courts, right of redress of grievances, and right to freedom of speech, " while also asserting a " liberty interest" in the proper administration of administrative directives promulgated by the department and a " right to equal application" of the system. Count ten alleges a violation of the plaintiff's " right to redress of grievances, right of access to the courts, right to freedom of speech and liberty interest in the proper administration of the [system], as well as the equal application thereof." Count twelve alleges a violation of the plaintiff's " right to privacy in his legal calls to privileged individuals."

1 The plaintiff's complaint does not identify any constitutional provisions specifically. Instead, it broadly asserts the violation of certain rights. The court also notes that, in certain counts, the plaintiff broadly alleges a violation of his rights under both the " federal and state" constitutions. Those rights generally are coextensive. See, e.g., State v. Fernandez, 254 Conn. 637, 657-658, 758 A.2d 842 (2000) (inmate's right of access to courts the same under state and federal constitutions), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001); Washington v. Meachum, 238 Conn. 692, 725, 680 A.2d 262 (1996) (" article first, § 7, of our state constitution does not provide inmates with a greater degree of privacy than does the federal constitution"); Cortez v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-14-4006008, 2016 WL 7742912, *2 (November 30, 2016) (" [t]he federal and state constitutions guarantee that inmates cannot be deprived of liberty without the due process of law"). Neither the plaintiff's complaint nor his memorandum of law in opposition to the defendants' motion to dismiss suggest otherwise.

2 Count five also alleges a violation of the plaintiff's right to privacy under federal law.

Although the plaintiff has not expressly invoked 42 U.S.C. § 1983, ³ it is well established that a claim for damages for an alleged violation of a federal constitutional right can only be made pursuant to a federal statute such as § 1983, which provides a procedure for redress for the deprivation of federal rights established elsewhere. See Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (" [t]he purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails"); West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (" [t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law"). For purposes of this motion to dismiss, the court, like the defendants, presumes that the plaintiff's federal constitutional claims are brought pursuant to § 1983. See Stocking v. Austin, Superior Court, judicial district of New Britain, Docket No. CV-15-50170376-S, (June 2, 2016) .

3 Section 1983 of title 42 of the United States Code provides in relevant part: " 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 . . ."

The defendants have moved to dismiss the plaintiff's complaint for lack of subject matter jurisdiction. In that motion, the defendants argue that the plaintiff has failed to state a claim in multiple respects. They further assert that the doctrines of sovereign immunity, qualified immunity, and statutory immunity bar the plaintiff's claims. In response, the plaintiff has filed an objection primarily addressing the issue of whether his complaint failed to properly state certain claims. That objection does not address sovereign immunity and statutory immunity in any manner, and briefly argues that the defendants are not entitled to qualified immunity with respect to the allegations of count three of his complaint.

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). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30. " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).

" When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, 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 . . . A determination regarding a trial court's subject matter jurisdiction is a question of law." (Internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 750-51, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). Furthermore, our appellate courts have recognized that the doctrines of sovereign immunity, qualified immunity, and statutory immunity implicate subject matter jurisdiction and, thus, are proper bases on which to grant a motion to dismiss. Id., 747 (affirming dismissal for lack of subject matter jurisdiction " on the basis of the doctrines of sovereign immunity, qualified immunity and statutory immunity"); see also Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).

I

Failure to State a Claim

As a preliminary matter, the court notes that the defendants, in their memorandum of law in support of the motion to dismiss, repeatedly assert that the plaintiff has failed to state a claim in certain counts of the complaint. The defendants, however, have not provided any authority indicating that the Superior Court is permitted to dismiss the action on that basis. This court is cognizant of the fact that, in federal court, such claims may be subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure.⁴ Nevertheless, the United States Supreme Court has recognized " the general and unassailable proposition . . . that States may establish the rules of procedure governing litigation in their own courts." Felder v. Casey, 487 U.S. 131, 138, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988). The Connecticut Supreme Court likewise has indicated that " state procedural requirements . . . generally apply to [federal] claims brought in state court." (Citation omitted.) Sullins v. Rodriguez, 281 Conn. 128, 147, 913 A.2d 415 (2007). For that reason, the judges of our Superior Court repeatedly have declined to apply the Federal Rules of Civil Procedure in reviewing challenges to the sufficiency of a federal claim raised in state court. As one observed, " [t]he defendants' citations to federal cases allowing for motions to dismiss conclusory federal claims under the Federal Rules of Civil Procedure are inapposite. In state court, the Connecticut Practice Book is applicable, not the Federal Rules of Civil Procedure." Lobaton v. Erfe, Superior Court, judicial district of New London, Docket No. CV-15-5014975-S, (April 24, 2017) (Vacchelli, J.); see also Lotto v. Hamden Board of Education, Superior Court, judicial district of New Haven, Docket No. CV-05-4010436 (February 21, 2006) (40 Conn. L. Rptr. 713, ) (Silbert, J.) (motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure properly treated as a motion to strike under Connecticut rules of practice); Sullivan v. Analysis & Technology, Inc., Superior Court, judicial district of New London, Docket No. CV554076, (November 21, 2000) (Hurley, J.) (same).

4 Rule 12 of the Federal Rules of Civil Procedure provides in pertinent part: " (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion."

Our Appellate Court similarly has explained that while " [u]nder Rule 12(b)(6) of the Federal Rules of Civil Procedure, failure to state a claim is a valid ground for dismissal. Under Connecticut practice, however, it is not. A motion to dismiss . . . is available only to raise the question whether, on the face of the record, the court lacks jurisdiction . . . A motion to strike is the proper procedural vehicle to test the legal sufficiency of the complaint . . . The trial court's dismissal of these counts for failure to state a claim would be procedurally improper." (Citations omitted; internal quotation marks omitted.) Flanagan v. Commission on Human Rights & Opportunities, 54 Conn.App. 89, 94 n.5, 733 A.2d 881, cert. denied, 250 Conn. 925, 738 A.2d 656 (1999); see also DeLaurentis v. New Haven, 220 Conn. 225, 239-40, 597 A.2d 807 (1991) (" a motion [to dismiss pursuant to Rule 12(b)(6)] is similar to our motion to strike . . . and permits the court to dismiss the complaint for failure to state a claim upon which relief can be granted"); Egri v. Foisie, 83 Conn.App. 243, 248, 848 A.2d 1266 (" [a] motion to dismiss does not test the sufficiency of a cause of action and should not be granted on other than jurisdictional grounds"), cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). Consistent with that precedent and our rules of practice, challenges to the legal sufficiency of a federal claim raised in Connecticut court properly are raised in a motion to strike. The court therefore declines to dismiss counts one, two, four, five, six, seven, ten and eleven on the failure to state a claim basis asserted by the defendants.

II

Injunctive Relief

In his complaint, the plaintiff has sued the named defendants in their official capacities for injunctive relief, and in their individual capacities for monetary damages. The court will first consider the plaintiff's request for injunctive relief.⁵

5 Insofar as the court views certain claims as brought pursuant to 42 U.S.C. § 1983, the court notes 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, 160 Conn.App. 294, 309, 124 A.3d 977 (2015).

As the United States Supreme Court has observed, sovereign immunity is " a constitutional principle" and such " immunity from suit is demarcated . . . by fundamental postulates implicit in the constitutional design." Alden v. Maine, 527 U.S. 706, 729, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Connecticut law has " long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . [B]ecause the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." (Citations omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313-14, 828 A.2d 549 (2003). Accordingly, " [t]he 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." Tuchman v. State, supra, 89 Conn.App. 751.

At the same time, " the sovereign immunity enjoyed by the state is not absolute. There are three exceptions [that pertain to a request for injunctive or declaratory relief]: (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.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009). Our Supreme Court has held that " [i]n 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." Id., 350.

The plaintiff's complaint is bereft of any claim of a statutory waiver of sovereign immunity by the legislature. The complaint also lacks allegations that the defendants perpetuated wrongful conduct to promote an illegal purpose in excess of their statutory authority. It nevertheless is replete with allegations that the defendants, as state officers, have violated the plaintiff's constitutional rights. The court therefore must determine whether the second exception to sovereign immunity is applicable in the present case. With respect to that exception, the burden shouldered by the plaintiff is substantial, as " [t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests." (Emphasis added.) Barde v. Board of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988); see also Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. at 349-50.

A

Strip Searches

Counts one, two, five, and seven allege violations of the plaintiff's right " to be free from unreasonable searches." In count one, he alleges that certain defendants improperly performed " back-to-back" strip searches on August 2, 2012--the first of which transpired at the time of his departure from the Cheshire Correctional Institution and the second of which transpired upon his arrival at MacDougall. In count seven, he similarly alleges that certain defendants improperly performed successive strip searches on November 14, 2012 the first of which transpired at the time of his departure from MacDougall to another correctional facility and the second of which transpired upon his return to MacDougall later that day. In count two, the plaintiff alleges that the aforementioned strip searches were improperly performed " in the presence and view of other persons." In count five, the plaintiff alleges that strip searches conducted on November 14, 2012, August 12, 2013, and August 30, 2013 likewise were improperly performed " in the presence and view of persons not involved in the search process." Count five further alleges that those strip searches also violated his right to privacy under federal law.

The court's analysis of a claimed incursion upon an inmate's constitutional rights is governed by precedent of the United States Supreme Court. In Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the court held that " when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." In fashioning that standard, the court recognized that a degree of discretion must be accorded to officials in the operation of correctional facilities. As it stated: " In our view, such a standard is necessary if prison administrators . . . and not the courts, [are] to make the difficult judgments concerning institutional operations . . . Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decision-making process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative problem, thereby unnecessarily perpetuat[ing] the involvement of the federal courts in affairs of prison administration." Id.

That standard is consonant with prior precedent mandating that a degree of discretion must be accorded to the policies and practices of prison officials. As the court explained in Bell v. Wolfish, 441 U.S. 520, 548-49, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), " the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security . . . Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters . . . [J]udicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial." (Citations omitted; internal quotation marks omitted.)

In Turner v. Safley, the United States Supreme Court articulated " several factors [that] are relevant in determining the reasonableness of the regulation at issue. First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it . . . Thus, a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational. Moreover, the governmental objective must be a legitimate and neutral one . . .

" A second factor relevant in determining the reasonableness of a prison restriction . . . is whether there are alternative means of exercising the right that remain open to prison inmates. Where other avenues remain available for the exercise of the asserted right . . . courts should be particularly conscious of the measure of judicial deference owed to corrections officials . . . in gauging the validity of the regulation.

" A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. In the necessarily closed environment of the correctional institution, few changes will have no ramifications on the liberty of others or on the use of the prison's limited resources for preserving institutional order. When accommodation of an asserted right will have a significant 'ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials . . .

" Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation . . . By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an exaggerated response to prison concerns. This is not a 'least restrictive alternative' test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint . . . But if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard." ⁶ (Citations omitted; emphasis in original; quotation marks omitted.) Turner v. Safley, supra, 482 U.S. at 89-91. With that governing standard in mind, the court considers the specific issue of strip search practices, as detailed in the plaintiff's complaint.

6 Connecticut courts have summarized the above Turner guidelines as " (1) whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it . . . (2) whether there are alternative means of exercising the right that remain open to prison inmates . . . (3) the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally . . . and (4) whether there is an absence of ready alternatives." (Citations omitted; internal quotation marks omitted.) Commissioner of Correction v. Coleman, 303 Conn. 800, 831, 38 A.3d 84 (2012).

1

Bell v. Wolfish, supra, 441 U.S. 520, is the seminal case with regard to strip searches and the rights of prisoners. While acknowledging that the " test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application" and " in each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails, " the United States Supreme Court nonetheless reasoned that because " [a] detention facility is a unique place fraught with serious security dangers" and " [s]muggling of money, drugs, weapons, and other contraband is all too common an occurrence, " strip searches could be conducted without probable cause. Id. 560; see also Rickman v. Avaniti, 854 F.2d 327 (9th Cir. 1988) (upholding visual body cavity searches of all segregation unit inmates leaving their cells); Arruda v. Fair, 547 F.Supp. 1324, 1334 (D. Mass. 1982) (upholding as reasonable strip searches of inmates both before and after trips to the prison hospital and law library, even though the inmates shackled and accompanied by guards whenever moved from cells), aff'd, 710 F.2d 886 (1st Cir. 1983), cert. denied, 464 U.S. 999, 104 S.Ct. 502, 78 L.Ed.2d 693 (1984).

The allegations of counts one and seven both involve scenarios in which the plaintiff was transported between two different correctional facilities. In such instances, the court concludes that the practice of conducting an additional strip search upon entering a second facility is reasonably related to legitimate penological interests. The plaintiff, therefore, has not clearly demonstrated an incursion into the proscription against unreasonable searches.

With respect to the plaintiff's allegations in counts two and five as to strip searches conducted in view of persons not involved in the search process, the court concludes otherwise. Although the United States Supreme Court has not weighed in on that specific issue, it has held that " convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." Bell v. Wolfish, supra, 441 U.S. at 545. Accordingly, " there must be a mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." Id., 546. Courts considering the constitutionality of strip searches conducted in plain view of persons not involved in the search process have focused on whether any necessity for the practice was demonstrated. See, e.g., Harris v. Miller, 818 F.3d 49, 60 (2d Cir. 2016) (" [f]or courts to be able to assess the reasonableness of an intrusion on an inmate's constitutional rights . . . officers must provide a justification that is supported by record evidence"). As a general matter, those courts have acknowledged that the constitutional rights of inmates are implicated in such instances. See id., 62 (" a strip search . . . conducted in the presence of unnecessary spectators is less reasonable than one conducted in the presence of only those individuals needed to conduct the search"); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir. 1985) (" jail officials should take precautions to insure that the detainee's privacy is protected from exposure to others unconnected to the search"); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982) (" [w]e think that, as a matter of law, no . . . officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity--whether or not any actually viewed the search--is a constitutionally valid governmental invasion of [the] personal rights that [such a] search entails" [internal quotation marks omitted]); Craft v. San Bernardino, 468 F.Supp.2d 1172, 1176 (C.D. Cal. 2006) (group strip searches unconstitutional because defendants " have taken no steps to conduct the searches on an individual basis and have instead continued to conduct the searches en masse without any attempt to limit the humiliation occasioned by conducting the searches in full view of dozens of other individuals"); Zunker v. Bertrand, 798 F.Supp. 1365, 1370 (E.D. Wis. 1992) (" it is preferable to conduct strip searches in a way that protects the privacy of the inmates as much as possible").

When a necessity for a strip search conducted in a public manner is found to exist, courts have deemed such searches constitutionally permissible. See, e.g., Elliott v. Lynn, 38 F.3d 188, 191-92 (5th Cir. 1994) (emergency situation created by increased prison violence justified immediate strip search of large number of inmates in groups), cert. denied, 514 U.S. 1117, 115 S.Ct. 1976, 131 L.Ed.2d 865 (1995); Franklin v. Lockhart, 883 F.2d 654, 656-57 (8th Cir. 1989) (manner and place in which strip searches were conducted did not violate fourth amendment when justified by legitimate security concerns and " the record does not support a finding that a less public means of searching exists that would not compromise those security concerns"); Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988) (" [w]hile we encourage . . . less public searches when security considerations allow, we will not question [the state prison system's] judgment that conditions in [the prison] reasonably require searches outside the prisoners' cells in order to protect the safety of the officers conducting them").

Another federal court has held that " the blanket policy of strip searching detainees in groups violates the Fourth Amendment." Lopez v. Youngblood, 609 F.Supp.2d 1125, 1133-39 (E.D. Cal. 2009). In so ruling, the court emphasized that the defendants had not demonstrated any necessity for conducting the searches in a public manner, stating: " Although Defendants have made general assertions regarding limited space and limited staffing as precluding individualized searches, Defendants made no apparent efforts to conduct individualized searches or to preserve the privacy of the individuals during searches . . . Defendants proffered no evidence of lack of available alternatives or the preclusion of officer safety . . ." (Citations omitted.) Id., 1136-37.

In count two of his complaint, the plaintiff alleges in relevant part that, on August 2, 2012, Correctional Officer Peters ordered him to undress in a doorway to a backroom " in clear view of several other inmates sitting in the bullpen or holding, tank area. When [the plaintiff] attempted to go further into the backroom, out of view of the other inmates, Peters ordered, 'No I said right there, ' indicating an area in the open doorway. At the time of the strip search several inmate workers were roaming about the backroom and several other officers came in and out of the [area] and [the plaintiff] was in clear view of all of them . . ."

In count five of his complaint, the plaintiff alleges that, on three other occasions in 2012 and 2013, he was forced to submit to strip searches in the presence of other inmates. He further alleges that " [p]rior to submitting to the strip search, [the plaintiff] confronted [Correctional Officer] Bond about the searches being performed in the 'presence and view' of persons not involved in the search process and specifically referred him to [Administrative Directive] § 6-7(5) that holds 'An inmate strip search shall normally be conducted in an area out of view of individuals not involved in the search process . . .' Bond informed [the plaintiff] that he 'has read all of the [Administrative Directives] and does not believe that statement is anywhere in [those directives] and that 'this is how we always perform the strip searches for court runs.' [The plaintiff] then asked if Bond was giving him a direct order to submit to the search process and Bond indicated that he was giving such an order to which the plaintiff dutifully complied . . ."

Appended to the plaintiff's complaint as Exhibit 1 was a copy of Administrative Directive § 6-7, which specifies an effective date of June 15, 2011. Subsection (5) of that directive, titled " Inmate Strip Searches, " provides in relevant part: " An inmate strip search shall normally be conducted in an area out of view of individuals not involved in the search process and shall not normally require physical contact by staff . . ."

Construed in the light most favorable to the plaintiff, the court concludes that the allegations set forth in counts two and five demonstrate an incursion upon constitutionally protected interests. Indeed, the Superior Court of this state, in a prior action involving the plaintiff, has held that " corrections officials must have some reason for conducting non-private strip searches--e.g., security risks, officer safety, lack of adequate alternatives, temporal considerations in order for such searches to be reasonable . . ." Harnage v. Murphy, Superior Court, judicial district of New London, Docket No. CD-10-5013961-S, (January 23, 2012), aff'd, 134 Conn.App. 901, 37 A.3d 204 (2012). In the absence of such a rationale, the court concludes that " the plaintiff's claim that he was unconstitutionally strip searched falls within the second exception to the doctrine of sovereign immunity, as his allegations are based on a substantial claim that the officers violated his fourth amendment rights." Id. This court concurs with that determination. Accordingly, the doctrine of sovereign immunity, at this time, does not warrant dismissal of the plaintiff's request for injunctive relief under counts two and five of the complaint.

B

The court next considers those counts in the complaint pertaining to the use of privacy sheets and window coverings inside the plaintiff's cell. In count four, the plaintiff alleges in relevant part that Warden Peter J. Murphy " implemented a policy that deprives inmates, like [the plaintiff], of their right to privacy, and any semblance of human decency, by declaring that they may not use a privacy sheet while performing their bodily functions. A privacy sheet is merely a bed sheet that is hung up between the [occupants of a prison cell] while one or the other is using the toilet . . ." That count further alleges that numerous defendants on various occasions made the plaintiff remove the privacy sheet that he had erected within his cell. As a result, the complaint alleges that " implementation and enforcement of this policy violates the plaintiff's right to privacy and right to be free from unreasonable searches."

In count eleven, the plaintiff alleges in relevant part that the defendants " routinely enforce a written policy" contained in the Inmate Handbook specifying " that inmates may not place a covering over the cell door windows or 'obstruct an open view into the cell.'" Enforcement of that policy while inmates are performing bodily functions allegedly violates their " right to privacy and freedom from unreasonable searches."

The plaintiff's claim that those policies violate his freedom from unreasonable searches requires little discussion. The United States Supreme Court has held that the Fourth Amendment proscription against unreasonable searches does not apply within the confines of a prison cell. Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

The plaintiff's claim with respect to his right to privacy requires more attention. In Hudson, the United States Supreme Court held " that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell." Id. Several federal courts of appeals, while acknowledging " the clear teaching of Hudson with respect to prison spaces, " have since recognized " that inmates do retain a limited right to bodily privacy." (Emphasis added.) Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992); accord Stoudemire v. Dept. of Corrections, 705 F.3d 560, 572 (6th Cir. 2013); Fortner v. Thomas, 983 F.2d 1024, 1030 (10th Cir. 2003); Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981). In 2016, the Second Circuit remarked that it was " aware of no intervening Supreme Court decision calling that holding into doubt, and we reiterate today that inmates retain a limited right to bodily privacy under the Fourth Amendment." ⁷ Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016).

7 Our Supreme Court has noted that " in applying federal law in those instances where the United States Supreme Court has not spoken, we generally give special consideration to decisions of the Second Circuit Court of Appeals." Schnabel v. Tyler, 230 Conn. 735, 743, 646 A.2d 152 (1994).

" Courts assessing an inmate's claim that officers infringed his or her right to bodily privacy must undertake a two-part inquiry: (1) First, the court must determine whether the inmate has exhibited an actual, subjective expectation of bodily privacy; and (2) second, the court must determine whether the prison officials had sufficient justification to intrude on [the inmate's] fourth amendment rights." (Internal quotation marks omitted.) Id. The latter criteria resembles the standard enunciated in Turner v. Safley, supra, 482 U.S. at 89 (" when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests").

Construed in the light most favorable to the plaintiff, counts four and eleven allege an actual, subjective expectation of privacy in the use of the toilet within his cell. At the same time, prison officials plainly have an interest in being able to observe the activity of inmates within their cells, and attempts to shield behavior within a cell from the view of prison officials raise legitimate concerns as to their ability to maintain institutional security. As the United States Court of Appeals for the Seventh Circuit noted, " [s]urveillance of prisoners is essential" including observation of their use of toilets. Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995).

Courts that have addressed the issue of an inmate's limited right to bodily privacy often focus on the frequency of the alleged intrusion, noting that the right is violated where observation of intimate personal activities by prison officials is " a regular occurrence." Canedy v. Boardman, 16 F.3d 183, 187 (7th Cir. 1994), and cases cited therein; see also Hayes v. Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995) (frequency of observation " is an important factor in assessing the constitutionality of prison practices"); Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (" if guards regularly watch inmates of the opposite sex who are engaged in personal activities, such as undressing, using toilet facilities, or showering, the inmates' constitutional rights to privacy are being violated"). Those courts distinguish occasional observation conducted in the normal course of a prison official's work from more frequent and regular viewing. See, e.g., Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1985) (upholding policy permitting prison officials to view inmates while using toilet when practice involved " infrequent and casual observation"); Correction Officers Benevolent Ass'n v. Kralick, Docket No. 04-CIV-2199 (PGG), 2011 WL 1236135 *11 (S.D.N.Y. March 30, 2011) (" occasional, indirect, or brief viewing of a naked prisoner by a guard of the opposite sex may be permissible, but . . . regular and close viewing is prohibited"); Baker v. Welch, Docket No. 03-CIV-2267 (JSR)(AJP), 2003 WL 22901051, *20 (S.D.N.Y. December 10, 2003) (" the balance should be struck to allow incidental and obscured viewing but prohibit regular and close viewing"); Miles v. Bell, 621 F.Supp. 51, 67 (D.Conn. 1985) (" Those cases which have found a violation of inmates' rights to privacy have looked to the frequency or regularity of such viewing. As a general rule, courts have found a violation only in those cases in which guards regularly watch inmates of the opposite sex who are engaged in personal activities, such as undressing, using toilet facilities or showering.").

The complaint in the present case alleges that certain defendants repeatedly enforced department policies prohibiting the use of privacy sheets and coverings over the windows of cell doors. It contains no allegations that the observation of the plaintiff while using the toilet was anything but infrequent and casual observation related to an officer's proper surveillance duties. See Collins v. Correct Care Solutions, Docket No. 11-3151 (SAC), 2013 WL 2458502, *6 (D.Kan. June 6, 2013) (" bare allegations" that inmate " is entitled to cover his cell window when going to the bathroom, and that he should not be subjected to discipline for doing so" deemed " insufficient to plausibly establish a claim of constitutional significance"). In weighing the plaintiff's limited right to bodily privacy against the department's essential surveillance function, the court concludes that such casual observation is reasonably related to legitimate penological interests. Moreover, the department possesses sufficient justification for that limited intrusion on an inmate's rights. Sovereign immunity thus bars the plaintiff's action against the defendants in their official capacity under counts four and eleven of the complaint.

C

In count three, the plaintiff alleges that the department maintains a " policy of [utilizing] Q-Pod as a 'ticket block' when it is supposed to be a general population unit . . . The Q-Pod housing unit . . . is managed in a manner that deprives inmates . . . of numerous constitutional rights without legitimate penological purpose and inmates are routinely sent to this unit after receiving a Disciplinary Report, when they exit the Restrictive Housing Unit after serving their duly imposed segregation sanction. In a Q-Pod, [the plaintiff] was denied equal access to facilities . . ." Count three thus alleged that " [t]he placement of an otherwise general population inmate into a ticket block for a prolonged period . . . violates an inmate's due process right and liberty interest" and that " [s]ubjecting [the plaintiff] to greater penalties and restrictions than imposed upon other inmates, at other state facilities, for the same infractions, violates [his] rights to equal protection and amounts to cruel and unusual punishment."

As the United States Supreme Court has observed, " lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system . . . Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law." (Citations omitted; internal quotation marks omitted.) Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 2301, 132 L.Ed.2d 418 (1995); accord Bell v. Wolfish, supra, 441 U.S. at 547 (" [p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security"). Furthermore, the due process clause does not create " an interest in being confined to a general population cell, rather than the more austere and restrictive administrative segregation quarters." Hewitt v. Helms, 459 U.S. 460, 466-67, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). At the same time, when a deprivation exceeds the prisoner's sentence in an unexpected way and when state law of a mandatory character imposes an " atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life, " liberty interests protected by the due process clause may be implicated. Sandin v. Conner, supra, 515 U.S. at 484; Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (" to prevail [on due process claim, an inmate] must establish . . . that the confinement or restraint creates an 'atypical and significant hardship'").

" Courts have utilized a two-part test [to evaluate such claims]. The first part is to examine the amount of time sentenced to the unit." M. Mushlin, Rights of Prisoners (4th Ed. 2009) p. 457, citing Scott v. Albury, 156 F.3d 283, 287-88 (2d Cir. 1998) and Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000). " The second part of the test looks at the condition of confinement in the segregation unit. The goal is to determine the effect on the inmate and also to determine whether the conditions are 'significantly more restrictive than those found in the general prison population.'" Id., citing Bonner v. Parke, 918 F.Supp. 1264, 1268 (N.D. Ind. 1996). " The harsher the conditions in the unit, the less time that must be served in it before it becomes an atypical and significant hardship. By the same token, somewhat less harsh conditions might become atypical if imposed for a long enough time." Id., citing Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999). " The key issue . . . is to determine based upon a totality of the circumstances whether or not the plaintiff is 'enduring a hardship that is substantially more grave than hardships they would be likely to endure simply as a consequence of the ordinary administration of the prison.' [I]t is important that a careful record be made of the actual conditions to which the plaintiff is exposed and the duration of time that the plaintiff will be held in the conditions and then compare that data with the conditions of confinement to which the plaintiff would have been exposed had he remained in the general population in that or a similar prison. It is also important to consider the psychological impact o[f] the conditions on the prisoner because doing so helps determine whether or not the change in prison conditions is not just atypical but also significant." Id., citing Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000); Colon v. Howard, 215 F.3d 227, 231-32 (2d Cir. 2000); Welch v. Bartlett, 196 F.3d 389, 392 (2d Cir. 1999); Thomas v. Newkirk, 905 F.Supp. 580. 584 (N.D. Ind. 1995).

Federal courts in Connecticut similarly have determined that " [a] prisoner's liberty interest to be free from disciplinary segregation or other restraint is not inherent in the Due Process Clause of the Fourteenth Amendment, but may under certain circumstances be created by state statute or regulation . . . If so, a prisoner's liberty interest will be generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life . . . In other words, a prisoner has a liberty interest only if the deprivation of which he complains is atypical and significant and the state has created the liberty interest by statute or regulation." (Citations omitted; quotation marks omitted.) Harris v. Meulemans, 389 F.Supp.2d 438, 441 (D.Conn. 2005). At the state level, our Appellate Court likewise has noted that " [a] prisoner's liberty interest to be free from disciplinary segregation is not inherent in the due process clause of the federal constitution." (Citations omitted.) Martinez v. Commissioner of Correction, 105 Conn.App. 65, 77, 936 A.2d 665, 673 (2007), cert. denied, 285 Conn. 917, 943 A.2d 475 (2008).

In reviewing the plaintiff's allegations, this court is not persuaded that the use of " ticket blocks" as disciplinary measures, and the inherent constraints associated therewith, necessarily run afoul of his constitutional rights. The plaintiff has failed to allege how he has endured an atypical hardship in the context of a correctional institution's need to maintain order, discipline and security.⁸ The court further concludes that the allegations of count three do not clearly demonstrate an incursion on the right to equal protection or the prohibition of cruel and unusual punishment. The plaintiff's action against the defendants in their official capacity under count three, therefore, is barred by sovereign immunity.

8 The court notes that the plaintiff's complaint lacks any factual allegations as to the basis for the department's decision to utilize restrictive housing in the present case.

D

The court next addresses the allegations of counts six and ten of the plaintiff's complaint, which allege retaliatory conduct on the part of certain defendants. In count six, the plaintiff alleges that Correctional Officers Peters, Shepard, and Melendez " retaliated against the plaintiff for the filing of grievances regarding the strip searches, " claiming that upon his arrival at MacDougall on November 14, 2012, they refused to process him in a timely manner and that he " was made to wait a full hour after the other inmates before he was finally processed." Count six also alleges that when performing the strip search, the officers " made a big dramatization of clearing the back room area" and remarked that the plaintiff " is special, he needs his privacy." Count six further alleges that, as that search was conducted, Peters was standing in the doorway and stated " maybe I shouldn't stand here, I wouldn't want to get sued or anything."

In count ten, the plaintiff alleges that on November 20, 2012, Captain VanOudenhove " retaliated against the plaintiff for using . . . the [system] . . . VanOudenhove called the plaintiff down to [his] office and, displaying [an] informal resolution attempt regarding the strip search retaliation that the plaintiff had submitted, told the plaintiff that if he kept 'writing grievances' he would 'make your life miserable' and that the plaintiff couldn't 'even imagine what [he] could do and get away with.'" Count ten further alleges that VanOudenhove " in hopes of deterring the filing of grievances [told] the plaintiff that 'you don't tell us how to operate this facility!'" That count also alleges that a subsequent response from the warden " indicated that VanOudenhove denied speaking with [the plaintiff] on the matter."

The United States Court of Appeals for the Second Circuit has " instructed [trial] courts to approach prisoner retaliation claims with skepticism and particular care, because virtually any adverse action taken against a prisoner by a prison official--even those otherwise not rising to the level of a constitutional violation--can be characterized as a constitutionally proscribed retaliatory act." (Internal quotation marks omitted.) Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015); see also Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (" because prisoner retaliation claims are easily fabricated, and accordingly pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration, we are careful to require non-conclusory allegations"); Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (inmate claims of retaliation must " be regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in state penal institutions"). " To state a claim for retaliation, a prisoner must allege that: (1) he was engaged in constitutionally protected conduct, (2) he suffered some adverse action at the hands of prison officials, and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take that action." (Internal quotation marks omitted.) Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017).

The court rejects the plaintiff's claimed impairment of his right of redress of his grievances under the system, as well as his claimed equal protection right and " liberty interest in the proper administration" thereof. As one federal Connecticut court has noted, " [i]t is well-established that inmate grievance programs created by state law are not required by the Constitution and consequently allegations that prison officials violated those procedures does not give rise to a cognizable § 1983 claim . . . In addition, prisoners do not have a due process right to a thorough investigation of grievances." (Citation omitted; internal quotation marks omitted.) Deangelis v. Santiago, United States District Court, Docket No. 3:16CV674 (MPS), 2016 WL 4467888, *5 (D.Conn. August 23, 2016) (dismissing claims concerning alleged attempts to prevent inmate from filing grievances as not rising to the level of a constitutional violation); Cancel v. Goord, United States District Court, Docket No. 00-CV-2042 (LLM), 2001 WL 303713, *3 (S.D. N.Y. March 29, 2001) (same); see also Booker v. South Carolina Dept. of Corrections, 855 F.3d 533, 541 (4th Cir. 2017) (noting that " clear rule" that " inmates have no constitutional entitlement or due process interest in access to a grievance procedure"). The court likewise finds unavailing the plaintiff's bald allegation that the conduct at issue in counts six and ten somehow impinged upon his right to access the courts.

The court next addresses the plaintiff's claimed impairment of his first amendment right to freedom of speech. " To state a First Amendment retaliation claim, a plaintiff must show that (1) his speech was protected, (2) the alleged retaliatory action adversely affected his protected speech, and (3) a causal relationship existed between the protected speech and the retaliation." ⁹ Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015); see also Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (adverse action required for prisoner retaliation claim). " [F]or purposes of First Amendment retaliation claim under § 1983, a plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights." Constantine v. Rectors & Visitors of George Mason University, 411 F.3d 474, 500 (4th Cir. 2005); Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004). That test is an objective one.¹⁰ Cox v. Warwick Valley Central School District, 654 F.3d 267, 273 (2d Cir. 2011); Bennett v. Hendrix, 423 F.3d 1247, 1250-51 (11th Cir. 2005).

9 The first prong of that test is satisfied here, as " [i]t is an established principle of constitutional law that an inmate is considered to be exercising his First Amendment right of freedom of speech when he complains to the prison's administrators about the conditions of his confinement." Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008); see also Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003) (" the filing of prison grievances is a constitutionally protected activity").

10 Although the court notes that the plaintiff has shown little reticence in exercising his first amendment right with respect to the conditions of his confinement; see Harnage v. Lightner, 163 Conn.App. 337, 137 A.3d 10, cert. denied, 323 Conn. 902, 150 A.3d 683 (2016); Harnage v. Schulman, 156 Conn.App. 903, 110 A.3d 549, cert. denied, 317 Conn. 907, 114 A.3d 1222 (2015); Harnage v. Torres, 155 Conn.App. 792, 111 A.3d 523, cert. denied, 317 Conn. 905, 114 A.3d 1222, cert. denied, 136 S.Ct. 322, 193 L.Ed.2d 234 (2015); Harnage v. Rell, 154 Conn.App. 905, 105 A.3d 367, cert. denied, 316 Conn. 903, 111 A.3d 471 (2015); Harnage v. Coletti, Superior Court, judicial district of New London, Docket No. CV-10-5014003, 2017 WL 2452335 (April 13, 2017); the test remains an objective one under the law. The Second Circuit has rejected a claim that retaliatory conduct is not adverse where it does not ultimately deter the prisoner-plaintiff from exercising his First Amendment rights, stating that " where a plaintiff alleges that the protected conduct at issue is the prior filing of a grievance or lawsuit against the defendant, it would be unfair in the extreme to rule that plaintiff's bringing of the subsequent claim in itself defeated his claim of retaliation. If bringing the action demonstrates that the plaintiff has not been chilled--and has failed to meet the subjective test then such a plaintiff could never seek redress for retaliation." Gill v. Pidlypchak, 389 F.3d 379, 383 (2d Cir. 2004); see also Gill v. Calescibetta, 157 Fed.Appx. 395, 397 (2d Cir. 2005) (" in proving [an] adverse action, a prisoner need not demonstrate an actual or subjective chill--that is, any dissuasion from further exercising his own rights" [emphasis in original]).

With respect to the allegations of count six, the court concludes that the actions of the defendants specified therein would not likely deter a person of ordinary firmness from the exercise of their First Amendment rights. Indeed, the conduct at issue appears to have been in direct response to the concerns articulated by the plaintiff in his grievances, and further detailed in counts two and five of this complaint, regarding strip searches conducted in a public manner in contravention of Administrative Directive § 6-7(5). To the extent that the named defendants took efforts to ensure that the plaintiff's strip search was conducted outside the presence of other prisoners, and only after they had cleared a back room area, they merely were providing the plaintiff with the right to bodily privacy that he previously had demanded. The first amendment basis for the retaliation claim asserted in count six thus fails.

More troubling are the allegations contained in count ten of the complaint. In that count, the plaintiff alleges that VanOudenhove met privately with the plaintiff in his office and threatened that if the plaintiff continued to file grievances, VanOudenhove " would 'make [the plaintiff's] life miserable' and that the plaintiff couldn't 'even imagine what [he] could do and get away with.' Count ten further alleges that VanOudenhove " in hopes of deterring the filing of grievances [told] the plaintiff that 'you don't tell us how to operate this facility!' Construed in the light most favorable to the plaintiff, the court concludes that the allegations of count ten sufficiently alleges the requisite adverse action, in that VanOudenhove's admonitions to the plaintiff in response to his filing of grievances against prison officials would likely deter a person of ordinary thinness from exercising their first amendment rights. Sovereign immunity, therefore, does not bar the plaintiff's action against VanOudenhove in his official capacity under count ten.

E

In counts eight and nine of the complaint, the plaintiff alleges violations of the right of access to the courts. " [P]risoners have a constitutional right of access to the courts . . . [and such access must be] adequate, effective and meaningful." (Citations omitted; internal quotation marks omitted.) Bounds v. Smith, 430 U.S. 817, 821-22, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), overruled in part on other grounds by Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (state not required to enable prisoner to discover grievances and litigate effectively). " 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 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." (Citations omitted; internal quotation marks omitted.) Washington v. Meachum, 238 Conn. 692, 735-36, 680 A.2d 262 (1996).

To properly raise a violation of the constitutional right of access to the courts, the United States Supreme Court has held that an inmate must demonstrate, as a " constitutional prerequisite, " the existence of an actual injury. Lewis v. Casey, supra, 518 U.S. at 351; see also Smith v. Arkansas Dept. of Correction, 103 F.3d 637, 643 (8th Cir. 1996) (" [a]s a prerequisite to any inquiry about the conditions of confinement . . . an inmate seeking relief must [demonstrate] an actual or imminent injury in fact").¹¹ An actual injury is defined as " actual prejudice to pending or contemplated litigation"; Brown v. Matauszak, United States Court of Appeals, Docket No. 08-1761, 2009 WL 9070627, *2 (6th Cir. January 21, 2009); and requires allegations that a defendant " took or was responsible for actions that hindered [the inmate's] efforts to pursue a legal claim." (Internal quotation marks omitted.) Monsky v. Moraghan, 127 F.3d 243, 247, (2d Cir. 1997). An example of an actual injury is " the dismissal of an otherwise meritorious legal claim on direct appeal." John v. New York Dept. of Corrections, 130 Fed.Appx. 506, 507 (2d Cir. 2005).

11 In Lewis, the United States Supreme Court explained that the requirement that an inmate must show actual injury in an access to the courts claim " derives ultimately from the doctrine of standing." Lewis v. Casey, 518 U.S. supra, 349; see also Amaker v. Fischer, 453 Fed.Appx. 59, 63 (2d Cir. 2011) (inmate must demonstrate actual injury " [t]o establish standing for a claim for the denial of access to the courts"); Nevada Dept. of Corrections v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (" [a]ctual injury is a jurisdictional requirement that flows from the standing doctrine and may not be waived").

Counts eight and nine of the plaintiff's complaint lack any allegations of an actual injury sustained by the plaintiff in a judicial proceeding in either federal or state court due to the conduct specified therein. Accordingly, he cannot establish an incursion upon that constitutionally protected interest. See Barde v. Board of Trustees, supra, 207 Conn. 64.

Moreover, to the extent that the plaintiff complains in count nine of interference with his access to the Inmate Administrative Remedy System, the court reiterates that " inmate grievance programs created by state law are not required by the Constitution and consequently allegations that prison officials violated those procedures does not give rise to a cognizable § 1983 claim." Deangelis v. Santiago, supra, 2016 WL 4467888, *5 (dismissing claims concerning alleged attempts to prevent inmate from filing grievances as not rising to the level of constitutional violation).

The court further finds unavailing the plaintiff's invocation of his first amendment right " to petition the government for the redress of grievances"; Turner v. Safley, supra, 482 U.S. at 84; which is related to the right to access to the courts. See Bill Johnson's Restaurants, Inc. v. National Labor Relations Board, 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983) (" the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances"). " To state a claim that this constitutional right was violated, [an inmate] must demonstrate that his position as a litigant was prejudiced . . . He will be unable to do this as long as his complaint is pending, as he cannot show actual prejudice in his access to the courts until there has been some sort of unfavorable outcome in his case." (Citation omitted.) Scoggins v. Wise, United States District Court, Docket. No. 14-CV-573, 2015 WL 10477563, *2 (W.D. La. December 14, 2015); see also Palmer v. Sessions, United States Court of Appeals for the Fifth Circuit, 689 Fed.Appx. 386, 2017 WL 2274293, *1 (5th Cir. 2017) (concluding that plaintiff inmate " has shown no actual prejudice due to the policies or actions of the defendants with respect to his ability to file a nonfrivolous legal claim" in rejecting challenge predicated on " his constitutional right to redress of grievances"). The allegations contained in counts eight and nine do not satisfy that standard.

F

In count twelve of his complaint, the plaintiff alleges that a violation of the right to privacy in attorney-client communications. He alleges in relevant part that on May 23, 2013, Correctional Counselor Semino " enforced a policy implemented by [Warden] Murphy, that deprived [him] the right to attorney-client privileged communications." More specifically, the plaintiff alleges that he was in a " small room" that is " used solely for legal calls." That room is located beside Semino's office and " immediately adjacent to the offices of the correctional treatment officer and unit manager." Those offices, the complaint alleges, " routinely have their doors left open while occupied." From the small room, the plaintiff engaged in a telephone conversation with his legal counsel. At some point during the conversation, the plaintiff closed the door to that room. In response, Semino " immediately came from her office and opened the door" and then informed the plaintiff that it must remain open. The complaint further alleges that, at that time, " several inmates were standing in the hallway, within earshot, waiting to see either the unit manager, correctional treatment officer, or Semino. On multiple occasions since this incident, the plaintiff has been denied the right to privacy in his legal calls to privileged individuals. The hallway outside these rooms [is] frequently occupied by inmates, [department] staff and medical personnel either in one of the offices or entering [the area]. Every single person in this area may readily hear every word even if whispered." Count twelve also alleges that although the plaintiff filed a grievance challenging that policy, " [Warden] Murphy upheld the policy."

As our Supreme Court has explained, " [a] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order . . . [T]he inmates of Connecticut's correctional institutions . . . have no reasonable expectation of privacy in their nonprivileged telephone calls and those calls may be monitored and recorded." (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Pink, 274 Conn. 241, 259-60, 875 A.2d 447 (2005); accord United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir. 1996) (" no prisoner should reasonably expect privacy in his outbound telephone calls"); United States v. Sababu, 891 F.2d 1308, 1329 (7th Cir. 1989) (" [w]e believe that it was unreasonable for [the defendant] to expect that telephone calls she placed to an inmate in a high-security federal penitentiary would be private").

That precept, however, does not apply to privileged communications by prisoners. " The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). It protects " communications made in confidence by a client to an attorney for the purposes of securing legal advice or assistance." In re Grand Jury (G.J. No. 87-03-A), 845 F.2d 896, 897 (11th Cir. 1988). The purpose of the attorney-client privilege is " to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." Upjohn Co. v. United States, supra, 389; see also Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888) (attorney-client privilege " is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure").

" Incarcerated or detained individuals do retain the attorney-client privilege." United States v. DeFonte, 441 F.3d 92, 94 (2d Cir. 2006). As the United States Supreme Court has explained, " even in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection." Lanza v. New York, 370 U.S. 139, 143-44, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962); see also Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974) (" An inmate's need for confidentiality in his communications with attorneys . . . is particularly important. We think that contact with an attorney and the opportunity to communicate privately is a vital ingredient to the effective assistance of counsel and access to the courts."); Gennusa v. Shoar, 879 F.Supp.2d 1337, 1348 n.11 (M.D. Fla. 2012) (" society has recognized the need for confidential attorney-client communications in the prison . . . context"), aff'd sub nom. Gennusa v. Canova, 748 F.3d 1103 (11th Cir. 2014).

For that reason, " in the prison setting, attorney-client communications generally are distinguished from other kinds of communications and exempted from routine monitoring." Lonegan v. Hasty, 436 F.Supp.2d 419, 432 (E.D.N.Y. 2006); see also Panetti v. Davis, 863 F.3d 366, 384 (5th Cir. 2017) (" [a]n inmate's phone conversations may be intercepted and recorded unless privileged"); Crooker v. U.S. Dept. of Justice, 497 F.Supp. 500, 504 (D.Conn. 1980) (" properly placed calls to attorneys [by inmates] may not be monitored"). Inmates, therefore, generally possess a reasonable expectation of privacy in their private telephone communications with legal counsel. See United States v. DeFonte, supra, 441 F.3d 95 (" [t]he memorializations of private conversations [that the plaintiff inmate] had with her attorney are protected from disclosure by the attorney-client privilege"); Gennusa v. Shoar, supra, 879 F.Supp.2d 1347 (inmate's " expectation of privacy is reasonable when a lawyer and her client speak alone about privileged matters"); Evans v. Inmate Calling Solutions, United States District Court, Docket No. 3:08-CV-00353 (GMN-VPC), 2011 WL 7470336, *15 (D.Nev. July 29, 2011) (" it is objectively reasonable for confidential communication between an inmate and his attorney to remain private"); cf. DeMassa v. Nunez, 770 F.2d 1505, 1506 (9th Cir. 1985) (" [i]t is axiomatic that the attorney-client privilege confers upon the client an expectation of privacy in his or her confidential communications with the attorney"); In re State Police Litigation, 888 F.Supp. 1235, 1256 (D.Conn. 1995) (" where no consent exists, and where conversations consist of privileged communications between clients and their attorneys, an expectation of privacy is reasonable").

Furthermore, in Connecticut, one trial court has held that when department officials " remained within earshot of inmate conversations with their attorneys, " they violated the inmate's constitutional rights. See Washington v. Meachum, supra, 238 Conn. 729 (noting that defendant commissioner of correction " does not challenge" trial court's declaratory ruling that department " staff members must not remain within listening range of attorney-inmate telephone calls"). The court also notes that § 18-81-46 of the Regulations of Connecticut State Agencies requires in relevant part that when an inmate places a privileged call to an attorney, the department's " staff member shall . . . move out of listening range of the inmate's conversation."

Count twelve alleges that both department officials and other inmates were " within earshot" of the plaintiff's telephone conversations with his attorney when the door to the room was open. Assuming the truth of those allegations, as this court must in ruling on a motion to dismiss, the plaintiff's ability to engage in privileged communications with his counsel was compromised, as " every single person in [the] area may readily hear every word even if whispered." The court thus concludes that the allegations of count twelve demonstrate an incursion upon the plaintiff's right to privacy in privileged attorney-client communications, a constitutionally protected interest. Furthermore, there is nothing presently before the court to suggest that this incursion " is reasonably related to legitimate penological interests." Turner v. Safley, supra, 482 U.S. at 89. Accordingly, the plaintiff's action against the defendants in their official capacity in count twelve is not barred by sovereign immunity.

III

Monetary Relief

In his complaint, the plaintiff also has sued the named defendants in their individual capacities for monetary damages.¹² In the prayer for relief accompanying each count, the plaintiff seeks, inter alia, compensatory damages and punitive damages in varying amounts, as well as " costs and attorneys fees." ¹³ In response, the defendants maintain that they are shielded from liability by the doctrines of qualified immunity and statutory immunity.

12 Sovereign immunity offers no shelter from such claims. See Miller v. Egan, supra, 265 Conn. 307 (" [i]f the plaintiff's complaint may reasonably be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims").

13 As the Appellate Court has observed, " [t]he law of this state is that pro se litigants are not entitled to attorneys fees." Jones v. Ippoliti, 52 Conn.App. 199, 212, 727 A.2d 713 (1999). That court nevertheless has recognized that " the mere fact that the defendant entered a pro se appearance and filed a pro se brief does not mean that she may not have actually incurred attorneys fees by way of legal advice, consultation, research or assistance in the preparation and typing of her brief . . . [A]n allowance to defend includes, in addition to attorneys fees, other items of expense such as fees and costs of transcripts. The order of the trial court awarding the allowance to defend the appeal, therefore, should be modified to reflect the actual amount . . . that defendant actually spent towards attorneys fees, if any, and other allowable expenses." Lev v. Lev, 10 Conn.App. 570, 575-76, 524 A.2d 674 (1987).

A

Qualified Immunity

The doctrine of qualified immunity pertains to claims raised under federal law, ¹⁴ and " 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 . . . 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." (Citation omitted; internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 216, 9 A.3d 347 (2010). " Qualified immunity balances two important interests--the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." (Internal quotation marks omitted.) Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). Furthermore, " the driving force behind creation of the qualified immunity doctrine was a desire to ensure that insubstantial claims against government officials [will] be resolved prior to discovery . . . Accordingly, we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation." (Citation omitted; internal quotation marks omitted.) Id., 231-32.

14 Our Supreme Court has clarified that " a claim for qualified immunity from liability for damages under § 1983 raises a question of federal law . . . and not state law." (Citation omitted; internal quotation marks omitted.) Schnabel v. Tyler, supra, 230 Conn. 742; see also Hanton v. Williams, Superior Court, judicial district of New Haven, Docket No. CV-09-5030962-S, 2011 WL 2611791, *2 n.3 (June 3, 2011) (" [q]ualified immunity . . . applies only to federal causes of action"); Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV-07-4027999-S, 2008 WL 544536, *1 (February 11, 2008) (qualified immunity operates to shield officials " for the alleged violations of federal law").

To overcome the qualified immunity afforded to state officials acting in their individual capacity, the plaintiff must plead " 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." (Internal quotation marks omitted.) Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). The latter inquiry " turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." (Internal quotation marks omitted.) Pearson v. Callahan, supra, 555 U.S. at 244. Trial judges confronted with qualified immunity claims 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.

The United States Supreme Court has instructed that " [i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001); see also Farrell v. Burke, 449 F.3d 470, 499 n.14 (2d Cir. 2006) (" [b]ecause we have found no cognizable violation of [p]laintiff's rights in this case, we need not reach the question of qualified immunity"); X-Men Security, Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999) (stating that resolution of first question favorable to defendant " moots" further inquiry into qualified immunity). In part II of this decision, the court has concluded that the bulk of the allegations of the plaintiff's complaint fail to demonstrate an incursion upon a constitutionally protected interest. Accordingly, qualified immunity shields the defendants from liability in their individual capacities as to those counts.

The court nonetheless has determined that the plaintiff's complaint sufficiently alleges an incursion upon constitutionally protected interests in three respects. Those allegations, therefore, require additional attention.

1

In Part IIA2, this court has concluded that, for purposes of surviving a motion to dismiss, the conduct alleged in counts two and five of the complaint sufficiently establishes an incursion upon the plaintiff's constitutional right against unreasonable searches, which thus satisfies the first prong of the qualified immunity inquiry. See Ashcroft v. al-Kidd, supra, 563 U.S. at 735. The court further concludes that the conduct described in those counts was objectively unreasonable, as the plaintiff's right was clearly established at that time.

" It is fundamental that persons are protected from unreasonable searches and seizures by the fourth amendment and that this right is enforceable against the states through the fourteenth amendment." Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992). As countless courts have recognized, " the loss of a prisoner's constitutional right against unreasonable searches is occasioned only by the legitimate needs of institutional security." (Internal quotation marks omitted.) Willis v. Artuz, 301 F.3d 65, 67 (2d Cir. 2002); accord Hudson v. Palmer, supra, 468 U.S. at 523 (" [P]risons are not beyond the reach of the Constitution. No 'iron curtain' separates one from the other . . . Indeed, we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration." [citation omitted]).

With respect to strip searches conducted in view of persons not involved in the search process, courts consistently have deemed such searches unreasonable when no necessity for that public examination existed. See, e.g., Harris v. Miller, 818 F.3d 49, 60-62 (2d Cir. 2016) (explaining that " courts have . . . required a justification for inmate searches that is supported by record evidence" and holding that " a strip search . . . conducted in the presence of unnecessary spectators is less reasonable than one conducted in the presence of only those individuals needed to conduct the search"); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982) (" [w]e think that, as a matter of law, no . . . officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity--whether or not any actually viewed the search--is a constitutionally valid governmental invasion of [the] personal rights that [such a] search entails" [internal quotation marks omitted]). That precept recognizes that inmates retain " a limited [constitutional] right of bodily privacy even in the prison context." Covino v. Patrissi, supra, 967 F.2d at 78; see also Stoudemire v. Dept. of Corrections, 705 F.3d 560, 573 (6th Cir. 2013) (" a strip search is a particularly extreme invasion of [the fourth amendment] right" against unreasonable searches); Wood v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996) (" a strip search, by its very nature, constitutes an extreme intrusion upon personal privacy").

Furthermore, in a decision issued prior to the conduct alleged in this complaint, the Connecticut Superior Court held that " corrections officials must have some reason for conducting non-private strip searches e.g., security risks, officer safety, lack of adequate alternatives, temporal considerations in order for such searches to be reasonable . . ." Harnage v. Murphy, Superior Court, judicial district of New London, Docket No. CD-10- 5013961-S, (January 23, 2012), aff'd, 134 Conn.App. 901, 37 A.3d 204 (2012). In the absence of such a rationale, the court concluded that a strip search of an inmate conducted " in the presence of numerous onlookers" constituted an unreasonable search in violation of the fourth amendment. Id. In their memorandum of law in support of their motion to dismiss, the defendants have not suggested otherwise.

The court also is mindful that, at the time of the alleged conduct described in counts two and five, Administrative Directive § 6-7(5) was in effect. That directive plainly recognizes an inmate's right to bodily privacy in the context of strip searches performed in Connecticut's correctional facilities, as it provides in relevant part that " [a]n inmate strip search shall normally be conducted in an area out of view of individuals not involved in the search process and shall not normally require physical contact by staff . . ." That department directive further substantiates the plaintiff's claim that the conduct of the department officials described in counts two and five was objectively unreasonable. The court therefore concludes that qualified immunity at this time does not shield the conduct alleged in counts two and five of the complaint against the defendants in their individual capacities.

2

In part IID, the court concluded that VanOudenhove's retaliatory conduct on November 20, 2012, as alleged in count ten of the complaint, sufficiently establishes an incursion upon the plaintiff's first amendment rights. Such conduct was objectively unreasonable, as that right was clearly established at the time of VanOudenhove's conduct. " It is an established principle of constitutional law that an inmate is considered to be exercising his First Amendment right of freedom of speech when he complains to the prison's administrators about the conditions of his confinement." Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008); see also Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003) (" the filing of prison grievances is a constitutionally protected activity"). Viewed from an objective perspective, as the law requires; Cox v. Warwick Valley Central School District, 654 F.3d 267, 273 (2d Cir. 2011); Bennett v. Hendrix, 423 F.3d 1247, 1250-51 (11th Cir. 2005); the conduct alleged in count ten likely would chill an inmate's exercise of that constitutional guarantee. See Gill v. Calescibetta, 157 Fed.Appx. 395, 397 (2d Cir. 2005). The court thus concludes that qualified immunity does not apply to the conduct alleged in count ten of the complaint.

3

In part IIF, the court concluded that the conduct alleged in count twelve sufficiently establishes an incursion upon the plaintiff's right to privacy in privileged telephone calls with his legal counsel. See Washington v. Meachum, Superior Court, judicial district of Hartford-New Britain, Docket No. 534616, 1995 WL 127823, *44 (March 6, 1995) (concluding that department practice of " remaining within listening range of attorney-client conversations" violated inmate's constitutional rights), rev'd in part on other grounds, 238 Conn. 692, 680 A.2d 262 (1996). The sanctity of those privileged communications is beyond question. See Engel v. CBS, Inc., 145 F.3d 499, 504 (2d Cir. 1998) (noting the " sanctity of the attorney-client relationship as a foundation principle of our democratic society" [internal quotation marks omitted]); Barton v. U.S. District Court, 410 F.3d 1104, 1109 (9th Cir. 2005) (discussing " the fundamental importance of the attorney-client privilege to our adversarial system of justice"). Pursuant to well-established fourth amendment jurisprudence, which the court has discussed earlier in this decision, inmates possess a reasonable expectation of privacy therein.

The question, then, is whether the conduct of the defendants named in count twelve in violating the plaintiff's right to privacy in his telephone communications with legal counsel was objectively reasonable. The court concludes that it was not, as that right was clearly established at the time of the alleged conduct. Moreover, department officials such as the defendants named here were bound by § 18-81-46 of the Regulations of Connecticut State Agencies, which requires in relevant part that when an inmate places a privileged call to an attorney, the department's " staff member shall . . . move out of listening range of the inmate's conversation." Accordingly, qualified immunity does not apply to the conduct alleged in count twelve of the complaint.

B

Statutory Immunity

In moving to dismiss the plaintiff's complaint, the defendants also claim the protection provided by statutory immunity. Statutory immunity shields officials from claims brought under Connecticut law. See Hanton v. Williams, Superior Court, judicial district of New Haven, Docket No. CV-09-5030962-S, 2011 WL 2611791, *2 n.3 (June 3, 2011) (statutory immunity is a state law doctrine that applies " only to state causes of action"). As a creature of state law, statutory immunity cannot shield officials from alleged violations of federal law. To permit otherwise, the United States Supreme Court has cautioned, would contravene the supremacy clause of the federal constitution. Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 558, 62 L.Ed.2d 481 (1980); accord Howlett v. Rose, 496 U.S. 356, 375, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) (noting that " [t]he elements of, and the defenses to, a federal cause of action are defined by federal law" and concluding that the application of state immunity to such causes of action " directly violates federal law"); Sullins v. Rodriguez, supra, 281 Conn. 133-34 (" conduct by persons acting under color of state law which is wrongful under [§ 1983] cannot be immunized by state law" [internal quotation marks omitted]); Schnabel v. Tyler, 230 Conn. 735, 742-43, 646 A.2d 152 (1994) (Connecticut's state courts are " bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials" in context of § 1983 claim). The statutory immunity afforded to state officials, therefore, applies only to claims brought under the state constitution, the General Statutes, or the common law of this state. See, e.g., Tuchman v. State, supra, 89 Conn.App. 763-64 (statutory immunity applicable to claims against official in individual capacity that " were asserted under the constitution of Connecticut"); C.M. v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-14-6045516-S, 2015 WL 1427869, *8 (March 6, 2015) (60 Conn. L. Rptr. 105, ) (concluding that plaintiff's " common-law negligence claims . . . are barred by statutory immunity"); Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV-07-4027999-S, 2008 WL 544536, *1 (February 11, 2008) (statutory immunity operates to shield officials " for the alleged violations of state law").

The statutory immunity enjoyed by state officials is codified in General Statutes § 4-165. It provides in relevant part that " [n]o state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her 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 . . ." As with qualified immunity in the federal context, the statutory immunity afforded under Connecticut law " is intended to permit courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims [the] immunity to engage in expensive and time consuming preparation to defend the suit on its merits." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 112, 891 A.2d 106 (2006). As our Supreme Court has explained, the statutory immunity provided by § 4-165 mandates that " state employees may not be held personally liable for their negligent actions performed within the scope of their employment." (Emphasis added.) Miller v. Egan, supra, 265 Conn. 319. Rather, such claims may only be brought before the office of the claims commissioner. Id.; see General Statutes § 4-141 et seq.

In reviewing the complaint, this court notes that each of the twelve counts seeks damages pursuant to claims that the defendants violated the plaintiff's civil rights. To the extent that those claims are brought under federal law and are premised on alleged violations of rights secured under the United States Constitution, statutory immunity does not apply. The court further notes that the plaintiff's complaint does not expressly allege any violation of the General Statutes, and the court cannot discern any cause of action arising under the common law of this state.

The court is mindful that the plaintiff has invoked the state constitution, albeit without any specificity whatsoever. See footnote 1. The court also is not aware of any aspect of our state constitutional jurisprudence that has recognized greater protections under the Connecticut Constitution than its federal counterpart in the context of an inmate's rights that is implicated in the counts here alleged. Nevertheless, the court is cognizant of the procedural posture of this case and its obligation to " consider the allegations of the complaint in their most favorable light [and] 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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). Thus, the question " is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive a motion to dismiss on the ground of statutory immunity." Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002).

In the present case, there is no allegation of conduct by the defendants that occurred outside of the scope of their employment. Accordingly, in considering the defense of statutory immunity, the salient inquiry is whether the alleged conduct was wanton, reckless or malicious. Our Supreme Court has held that a claim sufficiently alleges wanton, reckless or malicious conduct if " the plaintiff [can] prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . Such conduct is more than negligence, more than gross negligence . . . In order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [Such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Id., 379.

Unlike the analysis of a qualified immunity defense, in which the standard is an objective one; see Pearson v. Callahan, supra, 555 U.S. at 244; the standard applicable to a statutory immunity defense is subjective in nature, as it concerns " the existence of a state of consciousness with reference to the consequences of one's acts . . ." Martin v. Brady, supra, 261 Conn. 379; see also Manifold v. Ragaglia, 102 Conn.App. 315, 325, 926 A.2d 38 (2007) (" 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"). Having reviewed the plaintiff's complaint, the court concludes that only one count rises to the level of wanton, reckless or malicious conduct specified by § 4-165. Construed in the light most favorable to the plaintiff, count ten alleges that VanOudenhove retaliated against the plaintiff for filing grievances with the department and threatened repercussions if the plaintiff continued to exercise his freedom of speech right. The clear import of those allegations is that VanOudenhove deliberately attempted to restrain the plaintiff's exercise of that right. Moreover, count ten alleges that VanOudenhove " knew [that] his actions violated [the] plaintiff's clearly established rights under . . . state law." The court therefore concludes that statutory immunity bars all counts of the complaint predicated on the protections of our state constitution and seeking monetary damages against the defendants in their individual capacities except count ten against VanOudenhove.

IV

Conclusion

The court grants the motion to dismiss the allegations of counts one, three, four, six, seven, eight, nine, and eleven in their entirety. With respect to counts two, five, and twelve, the court grants the motion to dismiss insofar as the complaint seeks monetary damages against the named defendants in their individual capacities for violations of state law, but denies the motion to dismiss insofar as the complaint seeks injunctive relief against the named defendants in their official capacities, and monetary relief against them in their individual capacities, for violations of federal law. As to count ten, the court denies the motion to dismiss in its entirety.