Opinion
NNHCV165036649S
09-25-2018
Alexander LACKS, Jr. v. Kamila WHITE
UNPUBLISHED OPINION
PIERSON, J.
PROCEDURAL HISTORY
On March 31, 2016, the plaintiff, Alexander Lacks, Jr., filed a complaint against the defendant, Kamila White, initiating the present action. The complaint was amended on August 31, 2017, and alleges the following. In August 2015, the plaintiff was incarcerated at Cheshire Correctional Institution (CCI), and was engaged in shift work, for which he was compensated monetarily and after which he was entitled to a shower. During the same period, the defendant worked as a correctional officer at CCI. The plaintiff previously filed a complaint with the shift manager on the grounds that the defendant had, in the past, denied the plaintiff access to a shower after his shift work. On August 23, 2015, the plaintiff completed his shift work and proceeded to the shower area, walking past the defendant and ignoring an offensive remark made by her. After completing his shower and returning to his cell, the plaintiff was handcuffed and placed in segregation for ten days. He later learned his placement in segregation was the result of claims made by the defendant, to the effect that the plaintiff had engaged in sexual misconduct while he was in the shower. The plaintiff denied any such misconduct. At a subsequent disciplinary hearing, the defendant’s claims were found to be insufficient to sustain a finding of guilt. After that finding, on September 19, 2015, the plaintiff filed a grievance, seeking redress against the defendant for her purportedly false claims against him. The grievance was returned to him with no action taken. Subsequent to his term in segregation, the plaintiff was transferred to a different housing unit at CCI and was not given a new work assignment.
The court is aware of that the plaintiff is a self-represented litigant. "Although [this court] will not entirely disregard our rules of practice, [it does] give great latitude to [self-represented] litigants in order that justice may both be done and be seen to be done ... For justice to be done, however, any latitude given to [self-represented] litigants cannot interfere with the rights of other parties, nor can [this court] disregard completely our rules of practice." (Internal quotation marks omitted.) Shobeiri v. Richards, 104 Conn.App. 293, 296, 933 A.2d 728 (2007).
The sole count of the amended complaint is brought against the defendant in her official and individual capacities, under 42 U.S.C. § 1983, and sounds in claims of intentional infliction of emotional distress, the violation of the plaintiff’s constitutional rights to due process and to file grievances under the first amendment of the United States Constitution. The plaintiff seeks injunctive and monetary relief, including compensatory and punitive damages, compensation for his time spent in segregation, and lost wages.
On June 2, 2016, before the amended complaint was filed, the defendant filed a motion to dismiss the claims brought against her in her official capacity, arguing that the plaintiff had failed to make proper service on her as to those claims. The court (Ecker, J.) granted the defendant’s motion on April 4, 2017. On September 1, 2017, after the plaintiff filed the amended complaint, the defendant filed the present motion to strike. The plaintiff filed an objection on September 21, 2017. On December 8, 2017, the court entered a judgment of dismissal due to the parties’ failure to file a scheduling order as ordered by the court. On January 18, 2018, the plaintiff moved to open judgment, which was granted on February 5, 2018. The present motion to strike was reclaimed and submitted to the court for adjudication on June 4, 2018.
DISCUSSION
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... It 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).
The complaint contains only one count against the defendant, alleging claims sounding in the intentional infliction of emotional distress in ¶ 45 of the amended complaint, and in violations of the plaintiff’s federal constitutional rights in ¶ 44 of the amended complaint. Because the claims in tort and in constitutional rights require separate analysis, each will be considered in turn.
I
The defendant argues that the tort claims in the plaintiff’s amended complaint should be stricken because, under Connecticut statute, she is immune from liability in a tort action seeking money damages. The plaintiff responds in his objection that a correctional officer’s false testimony, made with knowledge that it would lead to disciplinary confinement, could constitute the intentional infliction of emotional distress and that retaliatory conduct, of the type alleged in the amended complaint, is not protected by statutory immunity.
As an initial matter, the provisions of General Statutes § 4-142 et seq. set forth certain prerequisites to bringing an action in our courts against the state- and, by extension, against a state official. These requirements include the submission of the cause of action to the Office of the Claims Commissioner for adjudication. General Statutes § 4-165 provides, in relevant part: "No 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." Thus, "[w]henever the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable." General Statutes § 4-160.
General Statutes § 4-142 provides, in relevant part: "There shall be an Office of the Claims Commissioner which shall hear and deteimine all claims against the state except: (1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes; and (5) claims for the refund of taxes."
Authorization from the Claims Commissioner is not always required before an action can be commenced. Connecticut courts have interpreted § 4-165 to allow a plaintiff to bring actions without authorization from the claims commissioner: "[W]hen an official acts in excess of his statutory authority and does not carry out government policy, an individual’s right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine ... [T]his exception applies only to actions for injunctive or declaratory relief ... The reason for this qualification was to protect the state from significant interference with its functions and to limit the rule to declaratory or injunctive suits, in which the trial court carefully can tailor the relief." (Citations omitted; emphasis added; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 350-51, 977 A.2d 636 (2009). A plaintiff who seeks to bring an action for monetary damages against the a state officer, in her individual capacity, does not fall under that exception. See Miller v. Egan, 265 Conn. 301, 316-18, 828 A.2d 549 (2003); see also Carter v. Watson, 181 Conn.App. 637, 643, 187 A.3d 478 (2018) (same).
In the present action, the plaintiff only brings claims against the defendant in her individual capacity, inasmuch as the claims against the defendant in her official capacity were previously dismissed, for improper service of process. Pursuant to his claims in tort, the plaintiff seeks monetary damages. The plaintiff does not allege that he obtained authorization from the Claims Commissioner to pursue these claims and he does not seek injunctive relief. As a result, the plaintiff’s tort claims pleaded in ¶ 45 of the amended complaint must be stricken.
II
The plaintiff also brings claims under 42 U.S.C. § 1983, seeking damages against the defendant in her individual capacity. The defendant argues that the plaintiff fails to state a claim alleging a constitutional violation. The plaintiff objects, contending that the amended complaint alleges the defendant’s actions were retaliation for the exercise of his first amendment right to grievance.
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 elements of, and the defenses to, a federal cause of action are defined by federal law." (Internal quotation marks omitted.) Sullins v. Rodriguez, 281 Conn. 128, 134, 913 A.2d 415 (2007). "To 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." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). "Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred ... The first step in any such claim is to identify the specific constitutional right allegedly infringed." (Citations omitted; internal quotation marks omitted.) Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Otherwise, no suit can be brought against state officials, who are protected by the doctrine of qualified immunity. "Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads 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." (Citation omitted.) Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). Our Supreme Court has noted that "[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Brooks v. Sweeney, 299 Conn. 196, 217, 9 A.3d 347 (2010).
The amended complaint alleges that the defendant initiated a disciplinary action against the plaintiff in retaliation for his previously filing a grievance against her. "In general, a prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest ... [There are] two exceptions to this rule: when an inmate is able to show either (1) that he was disciplined without adequate due process as a result of the report; or (2) that the report was issued in retaliation for exercising a constitutionally protected right." (Citation omitted; internal quotation marks omitted.) Willey v. Kirkpatrick, 801 F.3d 51, 63 (2d Cir. 2015). As applied to the present action, the first exception concerns the claimed of violations of the plaintiff’s due process rights under the fourteenth amendment of the United States Constitution, and the second exception involves claimed violations of the plaintiff’s right to redress under the first amendment.
A
The plaintiff cannot establish a due process violation under the facts as pleaded. "An inmate charged with a violation must be given (1) advance written notice of the charges at least 24 hours before the hearing; (2) the opportunity to appear at the hearing, to call witnesses, and to present rebuttal evidence; and (3) a written statement by the factfinders as to the evidence relied on for their decision, and the reasons for the prison committee’s action." Freeman v. Rideout, 808 F.2d 949, 953 (2d Cir. 1986); see also Wolff v. McDonnell, 418 U.S. 539, 564-66, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (inmates charged with violation must receive "nothing less than 24 hours" advance written notice, "written statement by the factfinders as to the evidence relied on" in the decision, and an opportunity for inmate to appear and call witnesses). In the present case, the plaintiff does not allege any infringement on these procedural safeguards during the course of the grievance process. The grievance filed by the defendant was resolved in the plaintiff’s favor and no bias or other procedural irregularities in the grievance process are noted in the amended complaint. Inasmuch as the facts as pleaded cannot support the conclusion that the plaintiff’s due process rights were infringed, he has not alleged a legally sufficient due process claim under § 1983.
B
This leaves the plaintiff’s claim that his right of redress under the first amendment to the United States Constitution was violated by .the defendant’s actions. "To prevail on a First Amendment retaliation claim, an inmate must establish (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 [conduct] and the adverse action ... An inmate bears the burden of showing that the protected conduct was a substantial or motivating factor in the prison officials’ disciplinary decision." (Citation omitted; internal quotation marks omitted.) Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014). In evaluating whether a plaintiff has established a first amendment retaliation claim, the court must evaluate these three factors with a heightened pleading standard in mind. "Because claims of retaliation are easily fabricated, the courts must examine prisoners’ claims of retaliation with skepticism and particular care ... [S]uch claims must be supported by specific and detailed factual allegations, and not stated in wholly conclusory terms." (Citations omitted; internal quotation marks omitted.) Rivera v. Goord, supra, 119 F.Supp.2d 339. See also Abrams v. Erfe, United States District Court, Docket No. 3:17CV1570 (CHS) (D.Conn. February 2, 2018) ("[b]ecause claims of retaliation are easily fabricated, courts must consider them with skepticism and require that they be supported by specific facts" [internal quotation marks omitted] ).
In the present action, the amended complaint establishes the first criterion, protected speech or conduct. The plaintiff complained to his shift supervisor that the defendant interfered with his ability to access the shower after work. The Second Circuit has recognized the use of the prison grievance system as protected conduct for the purposes of a first amendment retaliation claim. Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (use of prison’s grievance system is participation in protected activity); see also Abrams v. Erfe, supra, United States District Court, Docket No. 3:17CV1570 (CHS) ("[c]ases supporting [first amendment] retaliation claims for inmate statements [under § 1983] concern actions taken in response to the inmate filing a grievance, instituting a lawsuit or making a complaint to prison officials regarding the conduct of correctional staff"); Riddick v. Arnone, United States District Court, Docket No. 3:11CV631 (SRU) (D.Conn. July 9, 2012) (same). The amended complaint also alleges that an adverse action was taken against the plaintiff, namely, being placed in segregation due to the defendant’s report of sexual misconduct. See, e.g., Sanchez v. Velez, United States District Court, Docket No. 08CV1519 (NRB) (S.D.N.Y. July 24, 2009) ("the alleged adverse action was that plaintiff was moved to involuntary protective custody ... which ... refers to punitive segregation"). See also Gill v. Pidlypchak, supra, 389 F.3d 381 ("in the prison context we have previously defined adverse action objectively, as retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights" [emphasis omitted; internal quotation marks omitted] ).
The amended complaint further alleges facts sufficient to demonstrate a causal connection between the protected conduct and the adverse action. "[E]vidence that can show a causal connection between the protected conduct and the alleged retaliation include temporal proximity, prior good discipline, finding of not guilty at the disciplinary hearing, and statements by defendants as to their motives." Barclay v. New York, 477 F.Supp.2d 546, 558 (N.D.N.Y. 2007); Rivera v. Goord, 119 F.Supp.2d 327, 339 (S.D.N.Y. 2000) (same). Considering these factors, the amended complaint emphasizes that the plaintiff was vindicated after the defendant’s report of sexual misconduct. In terms of temporal proximity, the amended complaint alleges that the protected conduct preceded the adverse action, providing little additional detail but asserting that the defendant’s report of sexual misconduct was "given in retaliation for filing a complaint against her." Amended Complaint ¶ 30. The amended complaint also provides statements made by the defendant showing motive, alleging "the defendant White stated that the defendant would not be working for too long," accompanied by the allegation that she made another "offensive remark" on the same evening in order to "get the plaintiff to act out of character." Amended Complaint ¶ 15. These statements are alleged in addition to those the defendant’s previous derogatory remarks, which prompted the plaintiff’s initial grievance against the defendant. Amended Complaint ¶ 13. Taken as a whole, and read broadly and realistically, the facts alleged in the amended complaint provide specific and detailed facts sufficient to support the plaintiff’s first amendment retaliation claim, as alleged in ¶ 44 of the amended complaint.
This is true whether the court applies the applicable Connecticut or federal pleading standards. Practice Book § 10-1 provides, in relevant part: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved ..." "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... It 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." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
III
In general, a motion to strike is posed against an entire count, and all of the claims in a count stand if any one claim stands. "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, supra, 219 Conn. 471. "A [motion to strike] addressed simply to the count [in its entirety] will be overruled if any one theory is supported by the allegations in the count." (Internal quotation marks omitted.) Jolen, Inc. v. Brodie & Stone, PLC, Superior Court, judicial district of Fairfield, Docket No. CV-15-6053151-S (May 13, 2016, Kamp, J.) (62 Conn.L.Rptr. 343, 346 n.2) (one of plaintiff’s theories is sufficient to allow CUTPA claim to proceed, motion to strike is denied); see also Aurio v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-02-0175465-S (November 26, 2003, Gallagher, J.) (36 Conn.L.Rptr. 39, 40) (where motion to strike challenges entire count, but any part of plaintiff’s claims therein are legally sufficient, motion will fail); Farago v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. 524911 (May 18, 1993, Teller, J.) (if part of count is viable, it is not subject to motion to strike).
However, in certain circumstances, independent claims may be stricken from a single count if they are sufficiently separable- for example, if the claims are stated in separate paragraphs and when leaving the improper allegations in the count might cause confusion. In Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011), our Supreme Court cited Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) (17 Conn.L.Rptr. 296, 298 n.1) and quoted parenthetically the following language from that case: "Under prior case law and earlier versions of the Practice Book, it was generally improper to [move to strike] a paragraph of a complaint unless the paragraph purported to state a separate cause of action ... Since 1978, however, the Practice Book has not contained such a constraint." (Internal quotation marks omitted.) The court in Coe v. Board of Education also cited Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV- 04-0104110-S (December 22, 2004, Silbert, J.) (38 Conn.L.Rptr. 439, 440), and quoted parenthetically the following language from that case: "Prior case law ‘ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint ... the proper course for the court is to strike those allegations only ...’ " Id. ; see also Weingarden v. Milford Anesthesia Associates, P.C., Superior Court, judicial district of New Haven Docket No. CV-11-6016353-S (May 30, 2013, Wilson, J.) ("[O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph [or paragraphs] embodies an entire cause of action or defense" [internal quotation marks omitted] ). Furthermore, in Donovan v. Davis, 85 Conn. 394, 397-98, 82 A. 1025 (1912), the court stated: "A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated, and then only by [a motion to strike]. The only remedy ‘by which to test the sufficiency of a cause of action or defense, whether stated in one pleading, count or defense, or in a paragraph or paragraphs thereof,’ is a [motion to strike]." See, e.g., Tiplady v. Maryles, 158 Conn.App. 680, 701-02 and n.9, 120 A.3d 528, cert. denied, 319 Conn. 946, 125 A.3d 527 (2015).
As it concerns the present motion to strike, the amended complaint alleges violations of the United States Constitution in ¶ 44 of the amended complaint and the tort of intentional infliction of emotional distress in ¶ 45. The tort claims and the constitutional claims in the complaint’s single count can, therefore, be easily separated. Instead of considering the count as a whole, therefore, the court considers the claims in each paragraph separately. As explained previously in this decision, the plaintiff has not stated facts sufficient to maintain the tort claims in ¶ 45 of the amended complaint, but has stated a viable constitutional claim in ¶ 44, namely, a first amendment retaliation claim. Thus, to avoid unnecessary confusion, the tort claims in ¶ 45 are stricken, but the constitutional claims in ¶ 44 stand.
CONCLUSION
For the foregoing reasons, the motion to strike is granted in part and denied in part, as follows: As it relates to the claims concerning intentional infliction of emotional distress, set forth in ¶ 45 of the amended complaint, the defendant’s motion to strike is granted. As it relates to the claims concerning violations of the plaintiff’s rights under the United States Constitution, alleged in ¶ 44 of the amended complaint, the defendant’s motion to strike is denied.
Under federal pleading standards, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face ... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged ... The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully ... Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief." (Citations omitted; internal quotation marks omitted.) Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).