Opinion
KNLCV155014955
10-10-2018
James A. HARNAGE v. Theresa LANTZ, et al.
UNPUBLISHED OPINION
Handy, J.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 6, 2015, the plaintiff, James Harnage, a sentenced prisoner, filed a four-count complaint against the defendant, Sydney Schulman, as well as defendants Theresa Lantz, Brian Murphy, James Dzurenda, Carol Salsbury, Robert Foltz, and Cheryl Cepelak. In the counts of the complaint relevant to the defendant Schulman’s motion to dismiss, the plaintiff alleges that he is an inmate incarcerated at one of the Department of Correction’s (DOC) facilities and that the defendant was a private attorney who rendered services as a "state agent facilitator" of the state Inmates Legal Assistance Program (ILAP). (Compl., Para. 8.) The plaintiff alleges that the defendant Schulman entered into a contract that had "a state policy to allow female inmates the right to legal assistance and representation, by counsel through ILAP; in civil matters and required Shulman to deny those same benefits and privileges to male inmates solely on their gender as male inmates." (Compl., Para. 19.) The plaintiff further alleges that the defendant was a "willful participant in this unconstitutional conduct and allowed the state agents to exercise coercive power in limiting the representation provided by Schulman to make inmates attempting to use the ILAP, for his personal monetary gain." (Compl., Para. 20.)
The plaintiff concedes that he is not suing Schulman for depriving him of his equal protection rights nor is he suing him for conspiracy or other violations of 42 U.S.C. Section 1986. Rather the plaintiff alleges in his complaint that he is suing under both state and federal constitutions, statutory laws and rights. Finally, the plaintiff claims that defendant Schulman retaliated against him by denying him access to ILAP services due to Harnage bringing suit against Schulman on purportedly other grounds.
On May 1, 2018, the defendant Schulman filed a motion to dismiss the plaintiff’s complaint as to all claims against him in that he was neither a state actor nor acting under color of state law. The defendant further claims that he did not retaliate against the plaintiff by failing to continue his representation of him. On August 16, 2018, the plaintiff filed a memorandum in opposition to the motion to dismiss. This matter was heard on September 25, 2018, at which time the plaintiff was present by means of video conferencing and counsel for the defendant was present in court. All parties had the opportunity to be fully heard on that date.
II. LAW AND DISCUSSION
A motion to dismiss is used primarily to challenge the jurisdiction of the court. Wilcox v. Webster Ins., 294 Conn. 206, 982 A.2d 1053 (2009). Practice Book Section 10-30(a) provides the grounds for dismissal: "(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." "[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 quotations 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 facts 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 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).
A. Schulman As a State Actor or Acting Under Color of State Law
The defendant argues that he is not a state actor and did not owe the plaintiff a constitutional duty. In his complaint, the plaintiff alleges that he is not bringing any violations of his state and federal constitutional rights of access to the courts and equal protection against the defendant. He further alleges the defendant is a "state agent facilitator." By alleging the defendant as a "state agent facilitator," he is characterizing the defendant as a state actor.
"Generally, a public employee acts under color of state law when she acts in her official capacity or exercises her responsibilities pursuant to state law ... The [United States] Supreme Court has recognized one exception to the general rule. [A] public defender does not act under color of state law when performing the traditional functions of counsel to a criminal defendant ... The Court distinguished a public defender from the typical state employee or state actor: While performing his duties, the public defender retains all of the essential attributes of a private attorney, including, most importantly, his professional independence, which the State is constitutionally obligated to respect ... When representing an indigent defendant in a state criminal proceeding, the public defender does not act under color of state law for the purposes of Section 1983 because he is not acting on behalf of the State; he is the State’s adversary ... Similarly, attorneys appointed to represent indigent litigants are not considered to be acting under color of state law." (Citations omitted; internal quotation marks omitted.) Page v. Lantz, United States District Court, Docket No. 3:05CV1271 (MRK) (D.Conn. September 26, 2005). This issue was also addressed earlier in West v. Atkins, 487 U.S. 42, 50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) where the Supreme Court acknowledged that public defenders, although state employees, are not considered state actors because they act as the state’s adversary, not its advocate.
In the present case, all the plaintiff’s claims against the defendant arise out of the defendant’s contract with the DOC through the ILAP. Even viewing the allegations of the plaintiff’s complaint in the light most favorable to the plaintiff, the defendant is not a state actor, nor is he acting under color of state law. The defendant Schulman was performing according to the contract and entering into a contract did not change the defendant from a private attorney into a state actor. The defendant is similar to a public defender in that he provided legal assistance to an inmate and performed the traditional functions of an attorney.
2. Retaliatory Action
The plaintiff claims that the defendant retaliated against him and did not provide the plaintiff legal services because the plaintiff filed a lawsuit against the defendant. The defendant argues that this retaliation claim fails on the ground that the defendant’s inability to render legal services to the plaintiff was not a matter of retaliation but required by the Code of Professional Conduct.
Rule 1.7 of the Rules of Professional Conduct explicitly instructs that a lawyer shall not represent a client when a conflict exists. "[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if ... there is significant risk that the representation of one or more clients will be materially limited by ... a personal interest of the lawyer." Connecticut Rules of Professional Conduct 1.7(a)(2). Our Supreme Court has stated that "[t]he disciplinary guidelines to our Rules of Professional Conduct are punctuated with exhortations that an attorney’s loyalty to the client is to be undivided and unaffected by other interests that would impair the attorney’s independent judgment ... The comments to Rule 1.7 also state, in relevant part, that ‘loyalty is an essential element in the lawyer’s relationship to a client’; that such loyalty is ‘impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests’; and that ‘the lawyer’s own interests should not be permitted to have adverse effect on representation of a client.’ " Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 727-28 n.16, 627 A.2d 374 (1993); see also United States v. Stout, 723 F.Supp. 297, 310 n.12 (E.D.Pa. 1989) (client waived the right to keep attorney/client communications confidential by filing suit against attorney); Finger Lakes Plumbing & Heating, Inc. v. O’Dell, 101 A.D.2d 1008, 476 N.Y.S.2d 670, 671 (1984) (clients waived attorney/client privilege by commencing malpractice action against attorneys).
In the present case, the defendant Schulman could not effectively advocate for the plaintiff when the plaintiff had brought legal action against the defendant for the "deficiencies in the Inmates Legal Assistance Program and [the defendant’s] administration thereof." (Docket Entry No. 144, Ex. 1.) The defendant’s refusal to assist the plaintiff following the plaintiff’s suit against the defendant was not a matter or retaliation but a matter of the defendant not being able to advocate for the plaintiff effectively and loyally. The defendant’s refusal was necessary and in direct compliance with the Connecticut Rules of Professional Conduct.
III. CONCLUSION
For the foregoing reasons, the defendant Schulman’s motion to dismiss is granted. See also Harnage v. Schulman, 2013 Conn.Super. LEXIS 2956, at *7-8, 2013 WL 7020539, (Super. Dec. 23, 2013) 365. ("All the plaintiff’s claims against the defendants arise out of the defendant’s contract with the department ... the defendants are not state actors, nor are they acting under color of state law. The defendants are performing according to the contract and entering into a contract with the department does not change the defendants from private attorneys into state actors.") (Emphasis added.)