Opinion
KNLCV155014975S
04-24-2017
Percy Lobaton v. Warden Erfe et al
UNPUBLISHED OPINION
RULING ON DEFENDANTS' MOTION TO DISMISS
Robert F. Vacchelli, Judge.
This case is an action by the plaintiff, Percy Lobaton, an inmate of the Connecticut Department of Correction, alleging that the seventeen defendants, all officials of the Connecticut Department of Correction, violated his civil rights in a variety of respects in 2013 and 2014 in retaliation for his filing a lawsuit against prison officials in 2012. The operative complaint is plaintiff's Amended Complaint dated October 6, 2016. Doc. No. 112.00. Pending before the court is the defendants' motion to dismiss urging the court to dismiss the case in its entirety because that the plaintiff has failed to state a claim upon which relief can be granted, has not established subject matter jurisdiction, and because the defendants are afforded immunity. For the following reasons, the motion is denied.
I
" 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted; citation omitted.) RC Equity Group, LLC v. Zoning Commission of Borough of Newton, 285 Conn. 240, 248, 939 A.2d 1122 (2008).
" Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted; citation omitted.) Bingham v. Dept. of Public Works., 286 Conn. 698, 701, 945 A.2d 927 (2008).
In deciding a motion to dismiss, the court is obligated to, " take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . [A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts . . . If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken." (Citation omitted; internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 108-09, 967 A.2d 495 (2009). " [I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted; citations omitted.) Novak v. Levin, 287 Conn. 71, 79, 951 A.2d 514 (2008).
II
Taking the well pleaded facts as admitted, as the court must in resolving a motion to dismiss, the court finds the following facts: On November 8, 2012, the plaintiff filed a lawsuit against officials of the Corrigan-Radgowski Correctional Center in Uncasville, CT alleging that his legal mail had been opened outside his presence on several occasions. Subsequently, in February 2013, he was sent back to Corrigan-Radgowski despite the fact that he was supposed to go somewhere else. Between October 31, 2013 and July 11, 2014, various officials at Corrigan-Radgowski read his legal mail, threatened him, fabricated disciplinary charges against him, failed to afford him procedures due at disciplinary hearings and other rights of an indigent, despite his complaints about his treatment. On July 11, 2014, he was sent to a facility with higher level of security for refusing to stop complaining. When he returned to Corrigan-Radgowski, officers were upset with his return. They fabricated disciplinary charges, obtained private information about him, denied a legal call, cancelled his contact visits, threatened him, humiliated him, denied process due in disciplinary hearings, robbed him of personal items, ignored his request for legal books, denied him medical attention and refused to hear his complaints that he was being retaliated against. He attributes the alleged abuse to the fact that he earlier filed suit against Corrigan-Radgowski officials. He argues that his claim, although based on numerous particular events, is essentially a claim that the defendants illegally retaliated against him for exercising his right to file a lawsuit.
Plaintiff filed suit pursuant to 42 U.S.C. § 1983. He seeks money damages from the defendants in their individual capacities and injunctive relief in their official capacities.
III
Based on the above facts, the defendants argue that the case should be dismissed because the plaintiff has failed to state a claim upon which relief can be granted, has not established subject matter jurisdiction, and because the defendants are afforded immunity. In particular, they argue that: (A) The plaintiff is not entitled to injunctive relief; (B) The complaint is comprised of conclusory allegations that do not support relief; (C) The complaint fails to state a claim; (D) The plaintiff lacks standing; (E) The retaliation claims are unfounded; (F) Sovereign immunity precludes the relief requested; (G) The plaintiff is not entitled to individual capacity relief; and (H) Qualified immunity precludes the plaintiff from the requested relief. The issues are addressed seriatim.
A
The first issue is whether the plaintiff is entitled to injunctive relief. Defendants argue that he is not because plaintiff does not indicate exactly what specific relief he seeks from the court, the facts advanced by the plaintiff are incomplete, irreparable harm is not alleged, and the plaintiff fails to demonstrate likely success on the merits on the underlying complaint. The court finds that these are not grounds for dismissal.
A motion to dismiss challenges the court's jurisdiction to hear the cause. Practice Book § 10-30(a)(1). To the extent that defendants argue that plaintiff has failed to make allegations necessary to plead a cause of action for injunctive relief, that is a matter of legal sufficiency, not jurisdiction. A motion to strike is the proper procedural vehicle to test the legal sufficiency of the complaint. Practice Book § 10-39; Flanagan v Commission on Human Rights and Opportunities, 54 Conn.App. 89, 94 n.5, 733 A.2d 881, cert. denied, 250 Conn. 925, 738 A.2d 656 (1999). A motion challenging legal sufficiency should be done by a motion to strike. Pratt v. Town of Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). A motion to strike, rather than a motion to dismiss, is the proper vehicle to attack the legal sufficiency of a complaint. Caruso v. Bridgeport, 285 Conn. 618, 629-30, 941 A.2d 266 (2008). Also, to the extent that defendants argue that plaintiff has not proven likelihood of success, that is an element that the plaintiff must prove at a hearing on a motion for preliminary or temporary injunction. Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97, 10 A.3d 498 (2010); Waterbury Teachers Association v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). No such hearing has been held yet in the instant case. That issue is premature. Therefore, the motion to dismiss is denied as to this point.
B
Next, defendants argue that the case should be dismissed because the complaint is comprised of conclusory allegations that do not state a genuine claim for the relief requested. This is not grounds for dismissal. A motion to strike is the proper motion to file where a party alleges mere legal conclusions of law unsupported by sufficiently alleged facts. Practice Book § 10-39, Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982). " A motion to dismiss does not test the sufficiency of a cause of action and should not be granted on other than jurisdictional grounds." (Internal quotation marks omitted; citations omitted.) Egri v. Foisie, 83 Conn.App. 243, 248, 848 A.2d 1266, cert. denied 271 Conn. 931, 859 A.2d 930 (2004). However, the defendants have not made a motion to strike. They have made a motion to dismiss. The motion to dismiss is not the applicable motion to raise such an issue. Therefore, the motion to dismiss is denied as to this point.
Moreover, defendants' citations to federal cases allowing for motions to dismiss conclusory federal claims under the Federal Rules of Civil Procedure are inapposite. In state court, the Connecticut Practice Book is applicable, not the Federal Rules of Civil Procedure. See Duart v. Department of Correction, 303 Conn. 479, 496, 34 A.3d 343 (2012); State v. Godek, 182 Conn. 353, 359, 438 A.2d 114 (1980); Flanagan v Commission on Human Rights and Opportunities, supra, 54 Conn.App. 94 n.5; Ngetich v. Miller, Superior Court, judicial district of New Britain, Doc. No. CV 12-6017418, (March 14, 2014, Tanzer, J.)
C
Defendants next move to dismiss the complaint on the grounds that it fails to state a claim because: (1) the plaintiff does not have a constitutional right to visitation for a particular place of confinement; (2) his equal protection and discrimination claims lack merit; (3) unkind comments alone do not raise a claim; (4) the plaintiff was not denied access to court; (5) there are no allegations to support cruel and unusual punishment; and (6) the complaint does not present a due process claim. For the same reasons as stated above, these are not grounds for a motion to dismiss. Federal Rules may allow a motion to dismiss for failure to state a claim. Rule 12(b)(6), F.R. Civ. P. The state court equivalent is a motion to strike under Practice Book § 10-39. See DeLaurentis v. New Haven, 220 Conn. 225, 239-40, 597 A.2d 807 (1991). Defendants have not filed a motion to strike, therefore, the motion to dismiss on these grounds is denied. Moreover, the plaintiff does not purport to state claims for violations of the individual rights identified by the defendants. Rather, he asserts that his claim is for retaliation for having exercised his constitutional right to file a lawsuit. As such, the defendants' arguments are misdirected. See Townsend v. Sterling, 157 Conn.App. 708, 719, 116 A.3d 873 (2015).
D
In this next issue, defendants argue that the complaint should be dismissed because the plaintiff lacks standing. The argument, however, does not reach all claims. Defendants only argue that " [t]he complaint lacks any [allegation of the] specific sanction imposed because of the disciplinary reports issued; identification of a case that was impacted in a negative manner or actual harm caused by the misconduct attributed to these defendants. Therefore, the pleadings do not establish standing." Defendants' brief, p. 19-20. " [B]ecause the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss." Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012). The court is not persuaded that this case must be dismissed for lack of standing.
" Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests . . ." (Internal quotation marks omitted; citation omitted.) St. Germain v. LaBrie, 108 Conn.App. 587, 591, 949 A.2d 518 (2008).
Plaintiff argues that he is not seeking damages for violation of his disciplinary hearing rights. Rather, he argues, in effect, that he has sufficiently alleged facts to show that disciplinary charges were fabricated against him, and his efforts to defend himself were frustrated by the defendants, in retaliation for his filing of a lawsuit. To state a claim for retaliation, the plaintiff must allege facts demonstrating " first, that he engaged in constitutionally protected conduct and, second, that the conduct was a substantial or motivating factor for the adverse actions taken by prison officials." Bennett v. Goord, 343 F.3d 133, 137 (2nd Cir. 2003). Considering the low bar for establishment of standing, the court finds that the plaintiff's complaint alleges a sufficiently colorable claim.
E
Defendants also argue that the complaint should be dismissed because the retaliation claim is unfounded. They argue that the allegations are insufficient to support such a claim. As noted above, issues of legal insufficiency are raised in a motion to strike, not a motion to dismiss. " [A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike . . ." (Citation omitted.) Pratt v. Town of Old Saybrook, supra, 225 Conn. 185; Vines v. Lantz, Superior Court, judicial district of New Haven, Doc. No. CV 09-4037453, (March 7, 2011, Lager, J.). " [I]n ruling [on] whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader[.]" (Internal quotation marks omitted; citation omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 290, 933 A.2d 256 (2007). Construing the facts alleged most favorable to the plaintiff, as the court must in this exercise, the court concludes that the motion to dismiss on this ground must be denied.
F
Next, defendants argue that the complaint should be dismissed because sovereign immunity precludes the relief requested. Sovereign immunity is a subject matter jurisdiction issue which can be raised in a motion to dismiss. Columbia Air Services, Inc. v. Department of Transportation, 293 Conn. 342, 347 977 A.2d 636 (2009). However, in this case, plaintiff has brought his action against the defendants pursuant to 42 U.S.C. § 1983. Inasmuch as the plaintiff only seeks money damages from the defendants in their individual capacities, sovereign immunity is not a bar to such actions. Sullins v. Rodriguez, 281 Conn. 128, 141, 913 A.2d 415 (2007). Also, inasmuch as the plaintiff only seeks prospective injunctive relief from the defendants in their official capacities, sovereign immunity is not a bar to such actions. Braham v. Newbould, 160 Conn.App. 294, 309, 124 A.3d 977 (2015). The court is not persuaded that this case involves any circumstances which might permit a deviation from these general rules. Accordingly, the motion to dismiss is denied on this ground.
G
Next, defendants argue, in sum, that the case should be dismissed on sovereign immunity grounds because, contrary to the allegations made in the complaint, the defendants are being sued in their official capacities, not in their individual capacities, and they are immune from suit for money damages in their official capacities. The court is not persuaded. As to capacity, the operative amended complaint clearly identifies that the plaintiff seeks monetary damages from the defendants in their individual capacities. Amended Complaint, para. 10. When, as in this case, a complaint unambiguously alleges that a state official is sued in his or her individual capacity, it is sufficient to commence a § 1983 action against a state official in his or her individual capacity which is not barred by the doctrine of sovereign immunity. Sullins v. Rodriguez, supra, 281 Conn. 141; Vines v. Lantz, supra .
Nevertheless, defendants argue that they are immune from liability under General Statutes § 4-165. The court is not persuaded. General Statutes § 4-165 bars negligence actions against state officials absent the granting of permission to sue the state by the Claims Commissioner. Miller v. Egan, 265 Conn. 301, 319-20, 333, 828 A.2d 549 (2003). There is no plausible justification to construe the above case as a negligence action. It is a § 1983 action alleging retaliation for exercising constitutional rights. Moreover, General Statutes § 4-165 merely provides that " [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, state employees do not have statutory immunity for wanton, reckless or malicious acts, or for acts not performed within the scope of their employment. For those types of actions, they may be held personally liable, and a plaintiff who has been injured by such actions is free to bring an action against the individual employee. Miller v. Egan, Id., 319. The plaintiff has expressly alleged such misconduct in this instant case. See Amended Complaint, para. 11. Therefore, General Statutes § 4-165 is not applicable.
H
Finally, the defendants argue that the case should be dismissed because they are protected from suit by their qualified immunity. " [F]ederal qualified immunity shields a public official performing discretionary acts from liability if the law was not clearly established at the time of the performance of his or her conduct; or, in the case of clearly established law, if it was objectively reasonable for the public official to believe that his or her acts were lawful in light of the clearly established law." (Citations omitted.) Schnabel v. Tyler, 230 Conn. 735, 747, 646 A.2d 152 (1994). The issue can be decided on a motion to dismiss. See, e.g., Braham v. Newbould, supra, 160 Conn.App. 309 (2015). The test has been summarized as follows:
A court required to rule [on] the qualified immunity issue must consider . . . this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable. Id. . .
Under the Saucier test, a court first is required to articulate the elements of a constitutional violation and, taking the facts in the light most favorable to the plaintiff, determine whether there would be a violation of the plaintiff's constitutional rights under those facts. [ Id. ] The principles set forth with regard to the right alleged to have been violated set the groundwork for and inform the second inquiry. Id. Under the second inquiry, the court must determine not merely whether the state official conducted, for example, a reasonable search or seizure because qualified immunity has a further dimension. Id., at 205 . Rather, a court must also determine for purposes of qualified immunity whether the officer made a reasonable mistake as to the legal constraints on his. behavior under those circumstances. Id. As the Supreme Court stated in Saucier, the essence of the second inquiry is that the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right . . . Id., at 202 .
The Second Circuit has further refined the second inquiry under Saucier . . . A [governmental] defendant will be entitled to qualified immunity if either (1) his actions did not violate clearly established law or 2) it was objectively reasonable for him to believe that his actions did not violate clearly established law. Iqbal v. Hasty, 490 F.3d 143, 152 (2d Cir. 2007). In determining whether a right was clearly established, the court must assess whether the contours of the right [were] sufficiently clear in the context of the alleged violation such that a reasonable official would understand that what he [was] doing violate[d] that right . . . To that end, the court should consider what a reasonable officer in the defendant's position would have known about the lawfulness of his conduct, not what a lawyer would learn or intuit from researching case law . . . Furthermore, the court need not identify legal precedent addressing an identical factual scenario to conclude that the right is clearly established . . . Id. (Citation omitted; internal quotation marks omitted.) Fleming v. Bridgeport, 284 Conn. 502, 517-19, 935 A.2d 126 (2007).Brooks v. Sweeney, 299 Conn. 196, 216-18, 9 A.3d 347 (2010).
With regard to the first inquiry, it is beyond cavil that prisoners had a clearly established first amendment right to access the courts in 2013 and 2014. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Prison officials may not retaliate against prisoners for the exercise of that right. Colon v. Coughlin, 58 F.3d 865, 872 (2nd Cir. 1995). Whether it would be objectively reasonable for the defendants to believe that their actions did not violate that clearly established right in this case is a fact bound inquiry. Schnabel v. Tyler, supra, 230 Conn. 763. Presently, the court has no evidence of the events in this case, just the amended complaint and the arguments of the parties in their respective motions.
The defendants have filed a motion to dismiss. Doc. No. 117.00. The plaintiff has filed a motion to strike the motion to dismiss. Doc. No. 119.00. A motion to strike is available to challenge the legal sufficiency of certain pleadings, but a motion to dismiss is not one of them. Practice Book § 10-39. Moreover, there is nothing legally insufficient about the defendants' motion to dismiss. The motion appropriately raises some subject matter jurisdiction issues. The plaintiff's challenges go to the merits of the defendants' arguments rather than the legal sufficiency of their pleading. Therefore, the court will treat the plaintiff's motion to strike as a memorandum in opposition, which is the appropriate pleading in response to a motion to dismiss. Practice Book § 10-40(a).
The court does not have an adequate record, at this stage of the pleadings, to resolve the factual disputes of the parties necessary for a resolution of the issue, at this time. In such circumstances, it is appropriate to deny the motion to dismiss. See Gionnoni v. Commissioner of Transportation, 322 Conn. 344, 370, 141 A.3d 784 (2016); Conboy v. State of Connecticut, 292 Conn. 642, 654, 974 A.2d 669 (2009); Collins v. Goord, 438 F.Supp.2d 399, 421 (S.D.N.Y., 2006). Accordingly, the motion to dismiss on this point is denied at this time.
IV
For all of the foregoing reasons, the defendants' motion to dismiss is denied.