Opinion
CV105014003
04-13-2017
James Harnage v. Anthony Coletti
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Joseph Q. Koletsky, Judge Trial Referee.
The court heard oral argument on January 10, 2017 of defendant's motion for summary judgment, and, for the reasons discussed below, grants that motion.
FACTS
This action arises out of a claim by the plaintiff, James Harnage, that while he was in the custody of the Department of Corrections as a pretrial detainee, his constitutional rights were violated by the defendants Anthony Coletti, warden of Corrigan Correctional Center (Corrigan), Peter Ballaro, and Officer Iozia, correctional officers at Corrigan, when he was transferred from Corrigan to Garner Correctional Institution (Garner). In his complaint, filed on May 10, 2010, the plaintiff alleges, inter alia, the following facts.
On April 19, 2012, the plaintiff withdrew his action as to defendants Peter Ballaro and Officer Iozia, as well as count two and three of the complaint. Therefore, count one is the only relevant count and Anthony Coletti is the only relevant defendant for purposes of this memorandum of decision.
On March 5, 2010, the plaintiff, James Harnage, was a pretrial detainee at Corrigan located in Norwich, Connecticut. On this date, the plaintiff was transferred from Corrigan to Garner, which is located in Newtown, Connecticut. Garner is primarily a mental health facility and the plaintiff was subject to more restrictive housing and safety measures than he had been subject to at Corrigan. Further, because Garner was at a greater distance than Corrigan from his ongoing legal matters at the New London and Norwich courthouses, the plaintiff was subjected to long holding periods and transportation periods. The plaintiff alleges that this caused him diminished mental health and physical harm because he was subjected to long hours in travel and holding where they do not always properly attend the detainees. The plaintiff alleges that this transfer was done in retaliation for his having filed two prior lawsuits against officers at Corrigan, including the defendant, for other violations of his civil rights.
On April 16, 2012, the defendant filed this motion for summary judgment (#110), along with a memorandum of law in support (#111), on the grounds that 1) he is entitled to sovereign immunity, 2) he is entitled to qualified immunity, 3) the plaintiff has failed to exhaust his administrative remedies, and 4) the plaintiff failed to state a claim upon which relief can be granted. The defendant attached the following exhibits (#112): the plaintiff's mittimus judgment dated September 24, 2010; Department of Corrections Movement Record; Administrative Directive 6.4: Transportation and Community Supervision; Administrative Directive 9.1: Population Management; Administrative Directive 9.2: Offender Classification; Administrative Directive 9.6: Inmate Administrative Remedies; Affidavit of Michael Deveau; Affidavit of Kathryn Dudley; Affidavit of Anthony Coletti; Affidavit of Peter Ballaro; Affidavit of Jeffrey Devore; and Affidavit of Eduardo Martinez.
On August 19, 2013, the plaintiff filed an objection (#126) to the motion for summary judgment arguing that the motion lacks merit on all grounds presented by the defendant. The plaintiff submitted the following exhibits in support of his objection: Affidavit of James Harnage; Return of Service as submitted by Marshall Leary on May 10, 2010; a map of where Corrigan is located; defendant's response to the plaintiff's first interrogatory; Garner Administrative Directive 1.1: Statement of Mission, Vision, and Code of Ethics; the affidavits of Anthony Coletti, Kathryn Dudley, and John Ilvento as submitted by the defendant; a document titled " Grievance Returned Without Disposition" dated April 27, 2010; Inmate Request form filed April 28, 2010; Inmate Administrative Remedy form filed June 28, 2010; Inmate Grievance Appeal form filed August 17, 2010; one page of Garner Inmate Handbook; page 3 of the " Garner Gazette"; Inmate Request form dated August 25, 2010; Administrative Directives 6.4, 9.1, 9.2, 9.3, and 9.6 as submitted by the defendant; a letter purporting to be from Latarin Harris; thirty affidavits from other incarcerated individuals; Administrative Directive 2.17: Employee Conduct; a Restrictive Housing Unit Status Order dated October 3, 2008; Administrative Directive 9.4: Restrictive Status effective 2010; and Administrative Directive 9.9: Protective Management.
" Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). Due to its unauthenticated nature, and because the document consists primarily of hearsay, this letter will not be considered for purposes of the motion for summary judgment.
Nine of the thirty affidavits were not notarized by a sufficient person authorized under General Statutes § § 1-22 and 1-24. " [A]n affidavit [is] [ ] a voluntary ex parte statement reduced in writing, and sworn to or affirmed before some person legally authorized to administer an oath or affirmation." (Emphasis omitted; internal quotation marks omitted.) Willametz v. Susi Contracting Co., Inc., 9 Conn.App. 1, 7, 514 A.2d 383 (1986). " The mere fact that the plaintiff described the document as an affidavit [does] not make it one." Id. Without proper notarization, these nine documents will not be considered for purposes of this motion for summary judgment.
On April 16, 2012, Judge Emmet Cosgrove ordered (#110.01) the defendant to comply with discovery requests made by the plaintiff before the court could resolve the merits of the summary judgment motion. The original motion for summary judgment was therein denied without prejudice until such time that the defendant complied. Notice of Compliance (#128) was filed by the defendant on January 29, 2014, in response to Judge Cosgrove's order. A motion to renew the motion for summary judgment (#132) was submitted by the defendant on March 3, 2014. An objection to the motion to renew (#133) was submitted by plaintiff on March 11, 2014, claiming that the defendant had not responded sufficiently to the plaintiff's discovery request. In conjunction with this objection, the plaintiff submitted a discovery deficiency notice (#134) delineating the alleged deficiencies in the defendant's compliance with Judge Cosgrove's order (#110). On November 26, 2014, the defendant filed responses to the alleged deficiencies (#138). On March 4, 2015, the plaintiff reclaimed the defendant's motion for summary judgment (#110). On May 21, 2015, Judge Joseph Koletsky (#144) ordered the defendant to comply with discovery requests within thirty days. On June 22, 2015, the defendant submitted renewed responses to the plaintiff's discovery requests. After several motions for extension of time, oral argument was scheduled and heard on January 10, 2017.
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 358, 143 A.3d 638 (2016).
In his motion for summary judgment (#110), along with his memorandum of law in support (#111), the defendant argues that he is entitled to summary judgment on several grounds. First, the defendant argues that the plaintiff's claims for monetary damages are barred by sovereign immunity because to seek monetary damages by the state, the state must have consented to the suit either statutorily or by implication and that because the state has failed to consent, the plaintiff is barred. Second, the defendant argues that the plaintiff's claims for monetary damages are barred by qualified immunity which shields federal and state officials from money damages where the defendant objectively believed his acts were lawful. Third, the defendant argues that the plaintiff's injunctive relief claims are barred by sovereign immunity because the plaintiff's claims do not fall under the exceptions to sovereign immunity by failing to either allege a substantial claim of violation of constitutional rights, and by failing to allege that the defendant's conduct exceeded the defendant's authority. Fourth, the defendant argues that the plaintiff's claims are barred because the plaintiff has failed to exhaust his administrative remedies available to him through the Department of Corrections' Inmate Administrative Remedies available to the plaintiff under Administrative Directive 9.6. Fifth, the defendant argues that the plaintiff has failed to state a claim upon which relief can be granted.
The plaintiff counters in his objection to summary judgment (#115) that the defendant is not entitled to summary judgment arguing that the motion lacks merit on all grounds presented by the defendant and that a genuine issue of material fact remains as to whether the transfer to Garner was in retaliation for the plaintiff having filed prior civil suits against the defendant and other correctional officers at Corrigan.
I. Sovereign Immunity
The Eleventh Amendment of the United States Constitution, along with subsequent case law, bars a state from being sued by its own citizens as well as those citizens of another state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Eleventh Amendment immunity extends to suits filed against the state in state courts, as well as to state officials in appropriate circumstances. Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
Because Eleventh Amendment immunity implicates federal law, the first issue that must be decided is whether state or federal law will govern this decision. Because this was a claim made in state court against a state official and because there is both federal and state law on point on this matter this must be decided at the outset. It must also be determined what claim the plaintiff has made in the present case to determine whether federal or state law will apply.
A general allegation that a prison official transferred a prisoner in retaliation for the exercise of a constitutionally protected right states an actionable claim under § 1983, even if the plaintiff has not explicitly alleged a violation of § 1983 in his complaint. See Gayle v. Gonyea, 313 F.3d 677 (2nd Cir. 2002); see also Franco v. Kelly, 854 F.2d 584, 589-90 (2nd. Cir. 1988). The plaintiff has alleged sufficient facts to make a § 1983 claim. The Connecticut Supreme Court in Sullins v. Rodriguez, 281 Conn. 128, 133, 913 A.2d 415 (2007), held that " when sovereign immunity is claimed as a defense to a cause of action pursuant to § 1983, federal sovereign immunity jurisprudence preempts analysis under state law."
" Federal law is enforceable in state courts . . . because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature." Howlett v. Rose, 496 U.S. 356, 367, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). While state courts have concurrent jurisdiction over claims brought under § 1983; id.; " [c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced." Martinez v. California, 444 U.S. 277, 284, n.8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980).
The defendant has argued that the exceptions to immunity test as articulated in Columbia Air Services v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009), should be controlling over the plaintiff's claims against him in his official capacity, as the plaintiff's claims do not fall into a recognized exception to sovereign immunity. In the alternative, the defendant argues if this suit is brought against him in his individual capacity, that the test articulated in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975), controls in determining that he was acting within his official capacity and thus entitled to sovereign immunity. Further, the defendant argues that General Statutes § 4-165 bars claims against the defendant acting within the scope of his employment.
However, our Supreme Court in Sullins v. Rodriguez, supra, 281 Conn. 136, held that these tests and other similar doctrines and devices are inapplicable to § 1983 claims because all of these tests and doctrines are based on state law. " [T]o employ [a] test to divest state courts of jurisdiction to hear otherwise cognizable § 1983 claims would be to erect a constitutionally impermissible barrier to the vindication of federal rights." Id. " Sovereign immunity may [still] bar a plaintiff's claim pursuant to § 1983, but . . . federal law must govern that inquiry." Id.
Having determined that federal law governs the defendant's sovereign immunity claim, we now turn to whether the defendant, as a matter of law, is entitled to sovereign immunity. The court holds that the defendant is not entitled to sovereign immunity.
Despite the limited language of the Eleventh Amendment, the United States Supreme Court has interpreted it to encompass actions against states in state court, as well as against state officials and other entities deemed as arms of the state when suits are brought against them. Hans v. Louisiana, supra, 134 U.S. 1; Alden v. Maine, supra, 527 U.S. 706; Edelman v. Jordan, supra, 415 U.S. 651. " [T]he [United States] Supreme Court, has taken the view that Congress did not intend to defeat traditional notions of sovereign immunity in enacting § 1983." Sullins v. Rodriguez, supra, 281 Conn. 140, citing Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).
Section 1983 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 . . ." The Supreme Court has " held that interpreting the words [e]very person to exclude the States accorded with the most natural reading of the law, with its legislative history and with the rule that Congress must clearly state its intention to alter the federal balance when it seeks to do so. The court then addressed the related question whether state officials sued for monetary relief in their official capacities, are persons under § 1983. We held that they are not. Although state officials literally are persons, an official-capacity suit against an officer is not a suit against the official but rather is a suit against the official's office. As such it is no different from a suit against the State itself." (Citations omitted; internal quotation marks omitted.) Hafer v. Melo, 502 U.S. 21, 26, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), analyzing Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). " State officers sued for damages in their official capacity are not persons for purposes of suit [under § 1983] because they assume the identity of the government that employs them." Id. Therefore, state officers are entitled to sovereign immunity when sued in their official capacities under § 1983.
However, in Hafer v. Melo, supra, 502 U.S. 21, the court clarified that § 1983 does not bar suit against officials being sued in their personal capacities. " A government official in the role of personal-capacity defendant thus fits comfortably within the statutory term person." (Internal quotation marks omitted.) Id.; Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (" [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.").
In Hafer v. Melo, supra, 502 U.S. 21, the court clarified that § 1983 does authorize actions against state officers for damages arising from official acts, if they are sued in their individual capacities. " Personal capacity suits . . . aim to impose liability directly on officials for actions taken under color of state law." Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 87 (2nd Cir. 1991). " Thus, [o]n the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." (Internal quotation marks omitted.) Hafer v. Melo, supra . In other words, " [t]he Eleventh Amendment bar, by definition, only applies to official capacity suits, " and does not apply to individual capacity suits. Yorktown Medical Laboratory, Inc. v. Perales, supra .
In this case, the plaintiff's complaint is explicit. It alleges that the defendant is sued in his " individual capacity." " Such an articulation of the defendant's capacity is sufficient to commence a § 1983 claim against a state officer in his individual capacity." Sullins v. Rodriguez, supra, 281 Conn. 141, citing Hafer v. Melo, supra, 502 U.S. 24; Yorktown Medical Laboratory, Inc. v. Perales, supra, 948 F.2d 84. The defendant has not offered anything to rebut this except state doctrines which are inapplicable; therefore, it is held, as stated above, that the defendant is not entitled to sovereign immunity.
II. Qualified Immunity
" [A] claim for qualified immunity from liability for damages under § 1983 raises a question of federal law . . . Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent and may not expand or contract the contours of the immunity available to government officials." (Citations omitted; internal quotation marks omitted.) Schnabel v. Tyler, 230 Conn. 735, 742-43, 646 A.2d 152 (1994).
The federal courts have long recognized necessity in shielding government officials from liability in the performance of their discretionary duties. Id.; Wood v. Strickland, 420 U.S. 308, 319-20, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). In Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Court recognized that there is a " need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." The Court thus adopted an objective standard of applying qualified immunity in the context of § 1983, holding that " government officials performing discretionary functions, generally are shielded from liability for civil damages [under § 1983] insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id., 818. " Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have cause of action. But where an official's duties legitimately require action in which established rights are not implicated the public interest may be better served by action taken with independence and without fear of the consequences." (Footnote omitted; internal quotation marks omitted.) Id. " Even where the law is clearly established and the scope of an official's permissible conduct is clearly defined, the qualified immunity defense also protects an official if it was objectively reasonable for him at the time of the challenged action to believe his acts were lawful." (Emphasis added.) Schnabel v. Tyler, supra, 230 Conn. 747 citing Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
In the present case, the defendant argues that qualified immunity should apply because the defendant objectively believed his conduct was lawful and did not violate the plaintiff's statutory or constitutional rights. The defendant argues that General Statutes § 18-86 gives the Commissioner of Correction the discretion to transfer inmates among various prison facilities and that transferring the plaintiff was therefore lawful. In support of this argument, the defendant has submitted the affidavit of Kathryn Dudley, which states that it is not uncommon for prisoners to be transferred several times throughout their time within the prison system. The affidavit states that prisoners can be moved for many reasons including administrative reasons, population management reasons, disciplinary reasons, medical reasons, as well as many others. The affidavit of Kathryn Dudley states that there were 71, 000 transfers in the 2009-2010 years. This, in comparison with the fact that there were only about 20, 000 inmates within the prison system in Connecticut during those years, shows that transfers happen frequently and routinely. The defendant also submitted the affidavit of the defendant which states that as the warden of the Corrigan facility, it was within his and his administration's discretion to routinely transfer inmates for many different reasons.
" A person who has been convicted of a crime and who is subject to incarceration has no constitutional right to be committed to any particular institution and his confinement in any of the state's facilities is within the normal limits or range of custody which the conviction has authorized the State to impose." State v. Gates, 198 Conn. 397, 503 A.2d 163 (1986), citing Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Because the plaintiff alleges that his cause of action centers around the transfer from Corrigan to Garner, and it was objectively within the defendant's discretion to transfer an inmate freely, it is subject to qualified immunity. Therefore, the court finds that the defendant has met its burden. Accordingly the court finds that the defendant is entitled to sovereign immunity. The burden shifts to the plaintiff to prove the existence of a genuine issue of material fact. This will be addressed below in Section V labeled Retaliation.
III. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), subpart (e) unconstitutional on other grounds, Siggers-El v. Barlow, 433 F.Supp.2d 811, 813 (E.D.Mich. 2006) provides, in relevant part, " No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." " The courts have interpreted this provision as a mandatory requirement that administrative remedies be exhausted prior to filing of a lawsuit." McArthur v. Bolden, U.S. District Court, Docket No. 5:15CV00096-BRW-JTK (E.D. Arkansas February 22, 2016); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (holding Congress mandated the exhaustion requirement regardless of the type of relief offered by the administrative processes); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000) (" If administrative remedies are available, the prisoner must exhaust them").
The Connecticut Department of Corrections Administrative Directive 9.6 entitled " Inmate Administrative Remedies, " (Administrative Directive 9.6), provides an administrative remedy for an inmate in the Connecticut Department of Corrections to seek review of any issue related to any aspect of the inmate's confinement. Specifically, Administrative Directive 9.6 provides that an inmate must first attempt an informal resolution before filing an inmate grievance. If verbal resolution does not occur, then the inmate is required to submit an Inmate Request Form which states the problem and the action requested to remedy the issue. A response from prison administration is to be given within 15 calendar days from receipt of such request. At this time, inmates are permitted to submit a grievance on " [a]ll matters subject to the Commissioner's authority for which another remedy is provided . . ." Administrative Directive 9.6. This process includes submitting a grievance attaching the Inmate Request Form and Response, as well as the appropriate Inmate Administrative Remedy Form. A grievance must be filed within thirty calendar days of the occurrence or discovery of the cause of the grievance, at which time the grievance will be reviewed and a disposition will be communicated to the inmate by the prison administration. The inmate is then allowed up to two levels of appeal. The defendant argues that the plaintiff did not exhaust his administrative remedies in that he did not begin or complete the grievance process available to him and therefore was not entitled to seek redress in the state court for this matter. In support of his argument, the defendant submitted the affidavit of John Ilvento, the administrative remedy coordinator at Corrigan. In this affidavit, John Ilvento states that the plaintiff did not submit any grievances concerning his transfer within thirty days of his transfer to Garner. The affidavits state that the plaintiff therefore failed to begin the administrative process within the requisite amount of time and did not exhaust his administrative remedies. Thus, the court finds that the defendant has met his initial burden of submitting evidence showing that the plaintiff did not exhaust his administrative remedies through Administrative Directive 9.6.
In response, the plaintiff argues that he has fully complied with the administrative remedy system as required by Administrative Directive 9.6. In support of this argument, the plaintiff submitted a grievance form as plaintiff's Exhibit H, which is dated April 19, 2010, responded to on April 28, 2010, which states the grievance was returned without disposition because the inmate failed to first file an Inmate Request Form. The plaintiff also submitted an Inmate Request Form dated April 28, 2010, as plaintiff's Exhibit I, which states the plaintiff had an issue with having been transferred to Garner because it was a mental health facility and requested transfer back to Corrigan. This form has a response dated May 3, 2010, which states the Gulf Unit of Garner is not a mental health unit and that the plaintiff's request to be returned to Corrigan will not be executed at this time. The plaintiff also submitted an Inmate Administrative Remedy Form dated June 28, 2010, as plaintiff's Exhibit J, with attached Inmate Request Form from April 28, 2010 complaining of the move from Corrigan to Garner. The plaintiff also submitted Inmate Grievance Appeal Form dated August 17, 2010, as plaintiff's Exhibit K, which has a response dated September 6, 2010, which states his grievance had been answered at Level 1, no further appeal will be heard, and that plaintiff had exhausted his administrative remedies.
The plaintiff argues that this is sufficient to show that he has exhausted his administrative remedies according to Administrative Directive 9.6 and that he is therefore entitled to seek redress in the state court at this time. However, even viewed in the light most favorable to the plaintiff, the plaintiff has not submitted any evidence which raises a genuine issue of material fact. To the contrary, the plaintiff's submissions show that he did not comply with the administrative remedy requirements because he failed to timely file his grievance or the inmate request form pursuant to Administrative Directive 9.6.
Administrative Directive 9.6, as submitted by both parties, specifically requires that a grievance must be filed within thirty calendar days of " the occurrence or discovery of the cause of the grievance." (Emphasis added.) The plaintiff's transfer took place on March 5, 2010. For purposes of this case, which centers on the transfer as the cause of action, March 5, 2010, would be the date of occurrence of the grievance. The plaintiff did not initiate the administrative remedy process at Garner until April 28, 2010, fifty-four days after the date of his transfer. Further, because the plaintiff did not submit the Inmate Request Form first, as required by Administrative Directive 9.6, the grievance was not fully filed until June 28, 2010, 116 days after the original transfer which was the subject of the plaintiff's grievance.
Therefore, the court finds that the plaintiff has failed to meet his burden of showing a genuine issue remains as to his failure to exhaust the administrative remedies available to him. The defendant is therefore entitled to summary judgment on these grounds.
IV. Failure to State a Claim Upon Which Relief can he Granted
" [A]lthough, generally, the device used to challenge the sufficiency of the pleadings is a motion to strike; see Practice Book § 10-39; our case law [has] sanctioned the use of a motion for summary judgment to test the legal sufficiency of a pleading" if a party has waived its right to file a motion to strike by filing a responsive pleading. (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, supra, 306 Conn. 535 n.10. " [T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . [The Supreme Court] has recognized that there are competing concerns at issue when considering the propriety of using a motion for summary judgment for such a purpose. On the one hand, [i]f it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not [cure that insufficiency], we can perceive no reason why [a] defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed . . . It is incumbent on a plaintiff to allege some recognizable cause of action in his complaint . . . Thus, failure by [a defendant] to [strike] any portion of the . . . complaint does not prevent [that defendant] from claiming that the [plaintiff] had no cause of action and that [summary judgment was] warranted . . . [Indeed], [the Supreme Court] repeatedly has recognized that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried . . . On the other hand, the use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts [a] plaintiff out of court . . . [while the] granting of a motion to strike allows [a] plaintiff to replead his or her case." (Citations omitted; internal quotation marks omitted.) Ferri v. Powell-Ferri, supra, 317 Conn. 236-37.
" [Nonetheless], [t]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." (Internal quotation marks omitted.) Grenier v. Commission of Transportation, supra, 306 Conn. 535 n.10.
The defendant argues that the defendant has failed to state a claim upon which relief can be granted because the plaintiff has failed to show that his constitutional rights have been violated as inmates have no constitutional right to be confined at any particular prison. In support of this argument, the defendant has submitted the affidavit of Kathryn Dudley, which states that it is not uncommon for prisoners to be transferred several times throughout their time within the prison system. The affidavit states that prisoners can be moved for many reasons including, but not limited to, administrative reasons, population management, disciplinary reasons, medical reasons, as well as many others. The affidavit states that there were 71, 000 transfers in the 2009-2010 years. This in comparison with the fact that there were only about 20, 000 inmates within the prison system in Connecticut during those years shows that transfers happen very frequently and routinely. The defendant also submitted the affidavit of the defendant which states as the warden of the Corrigan facility, it was within the administration's discretion to routinely transfer inmates for many different reasons.
" A person who has been convicted of a crime and who is subject to incarceration has no constitutional right to be committed to any particular institution and his confinement in any of the state's facilities is within the normal limits or range of custody which the conviction has authorized the State to impose." State v. Gates, supra, 198 Conn. 397, citing Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Failure to state a cause of action is fatal to the claim where re-pleading cannot cure the defect. Here, because the plaintiff alleges that his cause of action centers around the transfer from Corrigan to Garner, and it was within the defendant's discretion to transfer an inmate freely, it does not qualify as a constitutional violation by the defendant and the plaintiff could not re-plead this in a way that could cure its defect. Therefore, it is held that the defendant has met its burden in showing that the plaintiff has failed to state a claim upon which relief can be granted.
V. Retaliation
Because the defendant has met its burden that there remains no genuine issue of material fact as to qualified immunity and insufficiency of pleadings, the burden shifts to the plaintiff to show that there is a remaining issue of material fact. In the present case, the plaintiff asserts that his transfer from Corrigan to Garner was instigated by the defendant out of retaliation for the plaintiff having filed two prior suits against correctional officers at Corrigan to which the defendant was a named party.
In a § 1983 retaliation claim, " [t]he plaintiff bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff." Graham v. Henderson, 89 F.3d 75, 79 (2nd Cir. 1996); Mount Healthy Sch. District v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). " Harnage's claims cannot survive summary judgment under the Mount Healthy test if he does not meet the burden of demonstrating three genuine issues of material fact: (1) that the speech or conduct at issue was protected, (2) that the defendant[] took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech [or conduct] and the adverse action." (Internal quotation marks omitted.) Harnage v. Brighthaupt, 168 F.Supp.3d 400 (D.Conn. 2016), citing Espinal v. Goord, 558 F.3d 119, 128 (2nd Cir. 2009).
" If the plaintiff carries that burden, the defendants must show by a preponderance of the evidence that they would have disciplined the plaintiff even in the absence of the protected conduct. Thus, if taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone." (Citation omitted; internal quotation marks omitted.) Graham v. Henderson, supra, 89 F.3d 79. " A finding of sufficient permissible reasons to justify state action is readily drawn in the context of prison administration where we have been cautioned to recognize that prison officials have broad administrative and discretionary authority . . . Retaliation claims by prisoners are prone to abuse since prisoners can claim retaliation for every decision they dislike." (Citation omitted; internal quotation marks omitted.) Id.
In the present case, the only claim alleged against the defendant is that the plaintiff was transferred in retaliation for his having filed two prior suits against correctional officers at Corrigan to which the defendant was a named party. The two prior suits were: Harnage v. Rell, Superior Court, judicial district of New London, Docket No. CV-10-50139285, which was served on January 7, 2010, and was filed with the court on January 15, 2010, and Harnage v. Murphy, Superior Court, judicial district of New London, Docket No. CV-10-5013961, (Jan. 23, 2012, Cosgrove, J.) aff'd 134 Conn.App. 901, 37 A.3d 204, which was served on the defendant on February 22, 2010, and filed with the court on March 9, 2010.
This case is still pending before the Superior Court in New London.
" Prisoners, like non-prisoners, have a constitutional right of access to the courts and to petition the government for the redress of grievances, and prison officials may not retaliate against prisoners for exercise of that right." Colon v. Coughlin, 58 F.3d 865, 872 (2nd Cir. 1995). The plaintiff's allegation that he had sought relief in the courts on two occasions and that the defendant retaliated against him for that reason meets his burden with respect to showing that there is constitutionally protected conduct within purview of § 1983 under the first requirement.
The second requirement is that the plaintiff must show that he suffered an adverse action. " [I]n the prison context . . . adverse action [has been defined] objectively, as retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." (Emphasis omitted; internal quotation marks omitted.) Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004). The defendant has not disputed that a transfer constitutes an adverse action and therefore the plaintiff has met his burden as to the second requirement.
The third requirement requires the plaintiff show causation between the protected conduct and the retaliation. " Prisoner plaintiffs may rely on circumstantial evidence to prove their retaliation claims, such as temporal proximity of events, but in doing so, the plaintiff also must usually provide some non-conclusory evidence that raises an inference of retaliatory animus in order to proceed to trial." (Emphasis added.) Harnage v. Brighthaupt, supra, 168 F.Supp.3d 413. " Furthermore, if the defendant official has made a properly supported motion [for summary judgment], the plaintiff . . . must identify affirmative evidence from which a jury could find that the plaintiff has carried his or her burden of proving the pertinent motive." (Emphasis in the original; internal quotation marks omitted.) Id.; Crawford-El v. Britton, 523 U.S. 574, 600, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998).
In the present case, the plaintiff argues that the temporal relationship between his filing of the complaint with the defendant as a named party, and the transfer is sufficient to establish the required causal connection. Specifically, the plaintiff argues that the defendant was served with the complaint for Harnage v. Murphy, supra, Superior Court, Docket No. CV-10-5013961, on February 22, 2010, and that the plaintiff was then transferred on March 5, 2010, less than two weeks after service upon the defendant. In support of this argument, the plaintiff has submitted the return of service which shows the date the defendant was served with the complaint for Harnage v. Murphy, supra . This is sufficient to show temporal proximity from the alleged conduct and the alleged retaliation in response to the conduct as they were only eleven calendar days apart. Therefore, this will be considered as circumstantial evidence that the retaliation happened as a result of the complaint being filed.
However, although the Second Circuit has " held that temporal proximity between protected conduct and an adverse action constitutes circumstantial evidence of retaliation, [the court has] consistently required some further evidence of retaliatory animus before permitting a prisoner to proceed to trial on a retaliation claim." (Emphasis added.) Faulk v. Fisher, 545 Fed.Appx. 56, 58 (2d Cir. 2013).
For instance, in Colon v. Coughlin, supra, 58 F.3d 873, the Second Circuit denied a motion for summary judgment on a § 1983 retaliation transfer claim because the plaintiff was able to offer direct evidence of retaliation, " namely, [the plaintiff was able to produce evidence that the] defendant [] alleged[ly] [admitted] the existence of a retaliatory scheme" known to all correctional officers at the facility where the plaintiff resided. Id. Or, in Bennett v. Goord, 343 F.3d 133 (2003), the Second Circuit denied a motion for summary judgment for a § 1983 retaliation claim because the plaintiff was able to offer more than just temporal proximity and was able to prove that all relevant adverse actions by the correctional officers were subsequently found to have been unjustified and reversed in internal proceedings within the Department of Corrections. Similarly, in Gayle v. Gonyea, supra, 313 F.3d 677, the Second Circuit denied a motion for summary judgment for a § 1983 retaliation claim that a misbehavior report was unjustly filed against the plaintiff when the plaintiff was able to produce evidence that at a later hearing the misbehavior report was administratively reversed.
In the present case, the plaintiff has failed to produce any affirmative evidence that proves a history of retaliatory animus in regards to the plaintiff. While the court is sympathetic that the plaintiff has submitted twenty-one reviewable affidavits of other prisoners containing allegations of alleged abuses by correctional officers at Corrigan, these affidavits do not verify any motive or retaliatory animus that is necessary to substantiate the retaliation claim. Rather, all but one of these affidavits state deficiencies within the prison system, generally, including insufficient food and time to eat, as well as unfair strip searches. One of these affidavits states specific abuses sustained by the prisoner, Kevin Kelly, along with witnessing violations of civil rights within the prison system, However, this affidavit, along with the others, do not speak to whether these actions were taken in retaliation for any particular behavior by those inmates nor do they show any transfer retaliatory scheme that the prisoners were being subjected to. These, along with his own affidavit which alleges retaliation, but does not prove any prior or further retaliatory actions taken against the plaintiff, along with the other evidence submitted by the plaintiff, do not raise the plaintiff's claim to the level necessary to substantiate that there is a material issue of fact as to whether this transfer was done out of retaliation. The court is therefore left with the circumstantial evidence of temporal proximity, which alone is not sufficient to prove the plaintiff's claim.
" Furthermore, even if plaintiff had met his burden under the Mount Healthy test, summary judgment would still be appropriate if the defendant[] then met [his] burden of showing that Harnage would have been [transferred] even in the absence of the protected conduct." Harnage v. Brighthaupt, supra, 168 F.Supp.3d 414. " Once the burden shifts to the defendants, [plaintiff's] presentation creates a triable issue of fact unless the defendants proffer an alternative basis for transferring plaintiff] that would apply to him even if his version of events were true." Graham v. Henderson, supra, 89 F.3d 89. " [T]he conclusion that the state action would have been taken in the absence of improper motives is readily drawn in the context of prison administration where we have been cautioned to recognize that prison officials have broad administrative and discretionary authority over the institutions they manage." (Internal quotation marks omitted.) Lowrance v. Achtyl, 20 F.3d 529, 535 (2nd Cir. 1994).
In the present case, the defendant has argued that the plaintiff was transferred for population management reasons as well as routine, administrative reasons. In support of this, the defendant has submitted a personal affidavit which states that the transfer was not instituted in response to the plaintiff's complaints against himself or his other staff members, but rather, he was transferred for population management and safety reasons. In addition to this, the affidavit of Kathryn Dudley states that transfers happen often for both routine and administrative reasons, and also for many other reasons within the prison's discretion including safety and population management. Further, the affidavit of the defendant specifically states that this transfer would have happened regardless of the complaints. Therefore, the defendant has asserted a legitimate, non-retaliatory reason for the transfer and has provided evidence that substantiates his claim. Accordingly, the defendant has met his burden in proving that the transfer would have happened regardless of retaliatory reasons. Accordingly, the court concludes that summary judgment should be granted on this ground as well.
CONCLUSION
Because the defendant has met its burden in regards to the plaintiff failing to exhaust his administrative remedies, his entitlement to qualified immunity, and by showing that the plaintiff has failed to state a legally cognizable claim by showing the transfer of the plaintiff would have happened regardless of the previous complaints filed by the plaintiff, the motion for summary judgment is granted.