Opinion
CV155035890
09-22-2016
Kacey Lewis v. Scott Semple et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#108) AND MOTION TO DISMISS (#120)
Angela C. Robinson, J.
The currently incarcerated pro se plaintiff, Kacey Lewis, commenced this writ of mandamus action against the defendants, Scott Semple, Commissioner Department of Correction (Semple), Monica Rinaldi, Deputy Commissioner, Department of Correction (Rinaldi), and Sydney T. Schulman, Esq., by service of process on July 30, 2015. In his complaint, the plaintiff alleges that his right to legal assistance under the United States and Connecticut constitutions has been violated. The plaintiff specifically claims that the firm Schulman and Associates, where Schulman is the senior partner, " has a contract with the Connecticut Department of Corrections: Inmates Legal Assistance Program (ILAP) to provide inmates with legal assistance in civil matters related to conditions of confinement." In his complaint, he further alleges that the firm refused to provide the plaintiff " any further legal assistance . . . due to the grievance that [t]he petitioner filed against ILAP managing attorney Jane Starkowski." The plaintiff seeks an order of mandamus " directing the respondents to provide the petitioner with legal assistance."
Arguing that this court lacks subject matter jurisdiction, because this case is now moot, Semple and Rinaldi filed a motion to dismiss (#108), along with a Memorandum of Law in Support of the Motion (#109); as well as an Affidavit of Michael Lettieri (#110), on September 23, 2015. Schulman filed a motion to dismiss (#120) along with a Memorandum of Law in Support of the Motion (#121) for the same reasons on March 31, 2016. The plaintiff filed objections to the motions on November 23, 2015 (#119) and April 13, 2016 (#122).
For reasons more fully set forth in this Memorandum of Decision, the court grants the Motions to Dismiss.
DISCUSSION
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter . . ." Practice Book § 10-30(a). " Under our well established jurisprudence, [m]ootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties . . . [T]he ultimate question is whether the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Richards v. Commissioner of Correction, 164 Conn.App. 862, 865, 138 A.3d 440 (2016). " Mootness . . . implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties." (Internal quotation marks omitted.) Batchelder v. Planning & Zoning Commission, 133 Conn.App. 173, 180, 34 A.3d 465, cert. denied, 304 Conn. 913, 40 A.3d 319 (2012). " Since mootness implicates subject matter jurisdiction . . . it can be raised at any stage of the proceedings." (Citation omitted; internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6, 688 A.2d 314 (1997).
Semple and Rinaldi argue that the action against them is moot because the Department of Corrections (DOC) no longer has a contract with Schulman's firm. The current and operative contract to provide legal services to inmates is with Bansley/Anthony LLC operating under managing attorney, Walter C. Bansley, IV. The defendants contend that the plaintiff is free to write or call the Bansley law firm for legal assistance. Because the defendants maintain that the department has broad discretion in providing legal services to inmates; they argue that the plaintiff has no clear legal right to a particular attorney and that they are providing him his constitutionally guaranteed rights to the court via Bansley/Anthony LLC. Therefore, the defendants argue, this case is moot.
Schulman similarly argues that the court lacks subject matter based on mootness because he no longer has a contract with the state to provide legal aid services to inmates. According to assertions made in his Memorandum, his firm " is no longer in a position to provide the services requested or legally obligated by contract to do so." Furthermore, the defendant contends that he is not a state actor for the purposes of the plaintiff's claims and, therefore, the court does not have jurisdictions over the claims against him.
The plaintiff contends in opposition to the Motions to Dismiss that the case is not moot because the defendants " have failed and/or refused to perform their mandatory ministerial duties in providing him access to the courts and have not fulfilled the plaintiff's request for legal information."
The plaintiff also argues that Schulman is barred from bringing this motion to dismiss because he has already filed an earlier motion to dismiss based on lack of personal jurisdiction, which the court denied. The current motion, however, is based on subject matter jurisdiction, which may be raised at any time and which cannot be waived. Practice Book § 10-33 (" [a]ny claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action").
This is a mandamus action. The scope of mandamus actions is very narrow. " The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy." (Internal quotation marks omitted.) Milford Education Ass'n v. Board of Education, 167 Conn. 513, 518, 356 A.2d 109 (1975). The plaintiff correctly alleges that he has a right to legal assistance as an incarcerated individual. The issue for this court is, whether that right may only be exercised with the counsel of his choice, irregardless of whether that attorney has a contract with the state to provide legal services to incarcerated individuals.
" [T]he fundamental [federal] 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." (Emphasis in original; internal quotation marks omitted.) State v. Fernandez, 254 Conn. 637, 653, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001), quoting Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Inmates have the same rights under the Connecticut constitution. See State v. Fernandez, supra, 254 Conn. 657. Decisions as to how to provide those adequate libraries or assistance are left to the department. State v. Fernandez, 254 Conn. 637, 656, 758 A.2d 842, 852 (2000), quoting Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (" [i]t is for the courts to remedy past or imminent official interference with individual inmates' presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur").
Mandamus only provides a remedy where there is a plain positive duty and a clear legal right to have that duty perform. The limits of any right and duty to provide access to the courts only requires adequate law libraries or adequate assistance from persons trained in the law. The right to court access does not include the right to have the provision of those services done by any particular means or person. It merely requires " a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
In the present case, the uncontroverted evidence establishes that, since July 2015, the state has contracted with Bansley/Anthony LLC, to provide legal services to its inmates. See, Affidavit of Michael Lettieri, fiscal administrative manager of the DOC, and the attached copy of the contract between the DOC and the Bansley Law Firm. Additionally, there is no evidence that the plaintiff has sought legal representation from the Bansley Law Firm. Thus, because the law firm of defendant Schulman is no longer authorized, contractually, to provide legal assistance to the plaintiff, and because there is no evidence that the plaintiff has sought and been denied representation from the Bansley firm, this action is moot. Given the limited scope of the mandamus remedy and the discretionary nature of providing court access to inmates, the plaintiff would not be entitled to any further remedy than the availability of Bansley/Anthony LLC to handle his legal needs. The issue of which the plaintiff complains has been resolved and court can no longer provide him practical relief. Accordingly, the case is moot and the court lacks subject matter jurisdiction.
The plaintiff suggests that this case should be heard notwithstanding its being rendered moot because it is capable of repetition yet evading review. There is nothing in the record to indicate that the plaintiff is likely to be denied counsel because of a grievance filed against said counsel in the future or that the duration of such an incident would preclude meaningful review as required for review under our case law. See Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 367, 957 A.2d 821 (2008) (" [F]or an otherwise moot question to qualify for review under the capable of repetition, yet evading review exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot" [internal quotation marks omitted]).
For the foregoing reasons, the motions to dismiss are granted.