Opinion
HHDCV175044019S
01-26-2018
Dean B. HOLLIDAY v. Nancy MARINO et al.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
Before the court is the defendant’s motion to strike counts two and four of the plaintiff’s revised complaint, which allege that the defendant violated, respectively, General Statutes § 4a-60 and the plaintiff’s fourteenth amendment rights by interfering with the plaintiff’s access to the courts. For reasons set forth below, the court grants the defendant’s motion to strike as to both counts two and four.
Section 4a-60 requires the inclusion of certain nondiscrimination and affirmative action provisions imposing enumerated obligations on contractors in contracts to which an awarding state agency is a party. Pertinently, such contractors are required to agree that they " will not discriminate or permit discrimination against any person or group of persons on the grounds of race, color, religious creed, age, marital status, national origin, ancestry, sex, gender identity or expression, intellectual disability, mental disability or physical disability, including, but not limited to, blindness ..." § 4a-60(a)(1).
FACTS
The operative complaint of the self-represented plaintiff, Dean B. Holliday, Sr., is the July 18, 2017, revised complaint which alleges the following facts against the defendant, Nancy Marino, a state marshal. During February and April 2015, the plaintiff, who was and continues to be an incarcerated person, sent two envelopes " containing a lawsuit" to the defendant’s office. The plaintiff evidently desired that the defendant serve process enclosed in the envelopes related to a lawsuit that the plaintiff brought against the Department of Veterans Affairs (VA) and its employees for alleged constitutional violations, negligence, and intentional tortious conduct. The defendant’s office refused both envelopes because the defendant, who was on vacation, had left instructions to refuse all mail during the vacation. The plaintiff’s brief in opposition to the motion to strike elaborates that the defendant’s instruction specified inmates’ paper. The plaintiff further alleges that one envelope was subsequently lost thus depriving the plaintiff of documents needed for his criminal case. Moreover, the plaintiff alleges he lost " the case" - presumably the one referenced earlier in the complaint against the VA- because the defendant failed to serve the papers in a timely fashion. The plaintiff claims that the monetary value of the civil was $4,300,000.
The present action was filed on January 26, 2017. Construed generously, the complaint sets forth in count two a claim for the defendant’s breach of a contract she has with the State, the terms of which are mandated by § 4a-60, from which he enjoys third-party beneficiary status. The plaintiff alleges in count four that the defendant violated his constitutional right to access the court by refusing to deliver his papers which hindered his efforts to pursue a legal claim and preventing him from meeting a filing deadline or presenting an effective claim.
See discussion, infra, regarding the liberal construction afforded the complaint in the present circumstances.
Pertinently, contractors who are a party to a state agency awarded contract are required to agree that they " will not discriminate or pen-nit discrimination against any person or group of persons on the grounds of race, color, religious creed, age, marital status, national origin, ancestry, sex, gender identity or expression, intellectual disability, mental disability or physical disability, including, but not limited to, blindness." § 4a-60(a)(1).
The defendant filed a motion to strike counts two and four on August 14, 2017. The motion was accompanied by a memorandum of law in support. The plaintiff filed an objection to the motion on September 25, 2017, along with a memorandum of law in opposition. This matter was heard at short calendar on November 27, 2017.
DISCUSSION
I. Standard
" A motion to strike attacks the legal sufficiency of the allegations in a pleading ... In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action ... [I]f facts provable in the complaint would support a cause of action, the motion to strike should be denied ... Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder ..." (Internal quotation marks omitted.) Kumah v. Brown, 307 Conn. 620, 626, 58 A.3d 247 (2013). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commissioner, 182 Conn. 138, 438 A.2d 27 (1980). However, " [i]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
Moreover, the court recognizes that the submissions of a self-represented litigant are to be construed liberally and interpreted so as " to raise the strongest arguments that they suggest." (Emphasis omitted; internal quotation marks omitted.) Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). See also Keeling v. Hars, 809 F.3d 43, 47 n.2 (2d Cir. 2015) (" We construe the submissions of a pro se litigant liberally and interpret them to raise the strongest arguments that they suggest." [Emphasis omitted; internal quotation marks omitted.] ) Connecticut courts have adopted a similar policy. Our Supreme Court has instructed that the judges of the superior court " should be solicitous to pro se petitioners and construe their pleadings liberally in light of the limited legal knowledge they possess ... [T]he right of self-representation, [however], provides no attendant license not to comply with the relevant rules of procedural and substantive law." (Citation omitted; internal quotation marks omitted.) Kaddah v. Commissioner of Correction, 299 Conn. 129, 140, 7 A.3d 911 (2010).
II. Analysis
A. Count Two
In the view of the defendant, the allegations of count two do not allege that a contract was formed between the plaintiff and defendant, and, even if one had been formed, the State was not a party to it. Therefore, according to the defendant, there is no basis for a violation of § 4a-60 as asserted in count two. The defendant refers the court to General Statutes § 6-38a which provides that " [a state marshal] shall have authority to provide legal execution and service of process in the counties in [Connecticut] ... as an independent contractor compensated on a fee for service basis ..." The plaintiff’s memorandum in opposition does not directly oppose the motion to strike as to count two but makes the bald assertion in opposing the striking of count four that marshals are agents of the state government.
It is true that courts have recognized that § 6-38a establishes that State marshals are in fact independent contractors. Kim v. Emt, 153 Conn.App. 563, 569, 102 A.3d 137 (2014), citing Page v. State Marshall Commission, 108 Conn.App. 668, 677, 950 A.2d 529 (2008). See also, Wright v. Dzurenda, Superior Court, judicial district of New Haven, Docket No. CV 17-5038715, 2017 WL 6601689, at *3 (November 24, 2017, Vitale, J.) (" [B]y statute, state marshals are independent contractors." )
The defendant’s argument does not address, however, the contractual obligations between the defendant and the State which are postulated by the complaint. Count two alleges that the defendant " [b]reached her contract with the State and therefore the client/inmate/Plaintiff by her failure to comply with a duty imposed by law which is owed to another or to society ... [thus violating] the Plaintiff’s third-party beneficiary rights of the contract between the State of Connecticut and Defendant Marino . (sic ) When she breached the contract by violating 4a-60." (Emphasis added) Plaintiff’s " Revised Bill in Equity Complaint," July 13, 2017, Entry # 110. Read liberally the complaint alleges a contract between the State and defendant in which the latter agreed not to discriminate against the plaintiff or members of his class. The independent contract status of the defendant is thus irrelevant as is the argument that the State was not a party to the plaintiff’s proposed contract with the defendant. Because the complaint may be read to assert a claim for third party beneficiary status in a contract to which the defendant and the State are parties the motion to strike the second count is denied.
The absence of a claim to membership in any group protected by § 4a-60(a)(1) is not raised by the defendant.
B. Count Four
The defendant argues that count four is legally insufficient because state marshals are not prison officials and a claim of violating the right to access the courts requires state action. Furthermore, the defendant argues that the scope of the right to access the court does not include the civil case the plaintiff is alleging against the VA. Lastly, the defendant argues that the plaintiff has failed to plead sufficient facts that his underlying civil case against the VA was non-frivolous. In response, the plaintiff argues that count four is legally sufficient solely because prison officials are agents of the State and, therefore, must not interfere with a prisoner’s efforts to pursue a legal claim in a court of law. The plaintiff also seems to paradoxically assert that the defendant’s motion should be denied because he was an independent contractor. The court agrees with the defendant.
In general, " [t]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828, 52 L.Ed.2d 72, 97 S.Ct. 1491 (1977). See also Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986) (prisoner has constitutional right of access to the courts for presenting claims that prison officials cannot unreasonably obstruct). Additionally, " [i]nterference with legal mail implicates a prison inmate’s right to access to the courts and free speech as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003).
The plaintiff’s claim for a deprivation of his constitutional access to the courts fails because it does not allege state action. " Those seeking to vindicate their rights in court enjoy a constitutional right of access to the courts that prohibits state actors from impeding one’s efforts to pursue legal claims ... To prove a violation of this right, a plaintiff must demonstrate that state action hindered his or her efforts to pursue a nonfrivolous legal claim and that consequently the plaintiff suffered some actual concrete injury." (Emphasis added.) May v. Sheahan, 226 F.3d 1 876, 883 (7th Cir. 2000). (citing Lewis v. Casey, 518 U.S. 343, 350-54, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Bounds v. Smith, 430 U.S. 817, 821-23, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).) As noted above, state marshals are independent contractors. Thus, no claim may lie against them, and in the present case, the defendant, for a violation of the fourteenth amendment right of access to the courts. Wright v. Dzurenda, supra, 2017 WL 6601689, at *3 (granting motion to strike claim that state marshal violated inmate’s constitutional right to access to the courts as legally insufficient because state marshals conduct is not state action).
Moreover, the principle established in Bounds is not applicable in all cases. " The tools [the constitutional right to access the courts] 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. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." (Internal quotation marks omitted). Sadler v. Commissioner of Correction, 100 Conn.App. 659, 661, 918 A.2d 1033 (2007). " Inmates must be afforded access to court to file a direct appeal, a petition for writ of habeas corpus or a civil rights action challenging the denial of a basic constitutional right. The inability to file or prosecute actions other than direct or collateral attacks on their sentences or a challenge to their conditions of confinement is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." (Internal quotation marks omitted.) Auguste v. Department of Corrections, 424 F.Supp.2d 363, 369 (D.Conn. 2006) (Quoting Lewis v. Casey, supra, 518 U.S. 354). See also Fernandez v. Armstrong, United States District Court, Docket No. 3:03CV583 (JCH) (D.Conn. December 7, 2004) (a civil forfeiture action was not within the scope of the constitutional right to access the court because it did not challenge his sentence or the conditions of his confinement. Id., *19-20.)
In the present action, the plaintiff’s underlying action involves a civil lawsuit against the VA and its employees and not a lawsuit challenging his conviction, sentence, or the conditions of his confinement. Therefore, as pleaded, the plaintiff’s allegations are not legally sufficient to maintain a cause of action for a violation of his constitutional right to access the courts. As a result, count four should be stricken from the plaintiff’s revised complaint.
CONCLUSION
For the foregoing reasons, the court denies the defendant’s motion to strike as to count two but grants it as to count four.