Opinion
DBDCV145009263S
02-04-2019
Ian WRIGHT v. COMMISSIONER OF CORRECTION, Dzurenda et al.
UNPUBLISHED OPINION
OPINION
Krumeich, J.
In this action Ian Wright, a sentenced inmate serving a thirty-five-year sentence, has alleged that he was subjected to unwarranted strip searches and had his access to a typewriter to prepare litigation documents restricted in retaliation for submitting grievances relating to the procedure of the guards conducting strip searches after typewriter usage while he was incarcerated at Garner Correctional Institution ("Garner"). Defendants have moved to dismiss all claims seeking declaratory and injunctive relief as moot because plaintiff is no longer incarcerated at Garner, but is now an inmate at the Corrigan-Radowski Correctional Center. For the reason stated above, the motion to dismiss is granted.
In the complaint plaintiff seeks a declaration that the denial of a typewriter constitutes denial of his constitutional right to access to the court and an injunction requiring the defendant Commissioner of Correction ("Commissioner") and his agents to provide him access to a typewriter during business hours or to arrange for plaintiff to purchase his own typewriter; plaintiff also seeks an injunction to enjoin the Commissioner and his agents from the procedure of strip searches after an inmate has access to a typewriter but to conduct instead a pat down search.
Defendant Dzurenda, the Commissioner of Correction, has been sued in his individual and official capacity. The other defendants are personnel employed at Garner and are sued only in their individual capacities. Judge Ozalis dismissed all counts of the complaint on sovereign immunity grounds except the fourth count alleged against defendant "Hakins" seeking damages for retaliation and count five against the Commissioner seeking declaratory and injunctive relief.
The Standards for Deciding a Motion to Dismiss
"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 ..." Weiner v. Clinton, 100 Conn.App. 753, 756-57 (2007), quoting Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
"Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant ..." Weiner, 100 Conn.App. at 757, quoting Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 569 (2004). "When assessing the existence of those four elements, our Supreme Court has advised courts to examine whether the case ‘present[s] a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.’ Weiner, 100 Conn.App. at 760 quoting Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626, 822 A.2d 196 (2003)." "The rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ..." Office of the Governor v. Select Committee of Inquiry, 271 Conn. at 570. "Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." Cadle v. D’Addario, 111 Conn.App. 80, 82 (2008).
"In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court ‘must consider the allegations of the complaint in their most favorable light ... including those facts necessarily implied from the allegations ...’ ... A trial court considering a motion to dismiss may, however, ‘encounter different situations, depending on the status of the record in the case ...’ [I]f the complaint is supplemented by undisputed facts ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... Conversely, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ... Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits ... An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties ... The trial court ‘may [also] in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred.’" Giannoni v. Commissioner of Transportation, 322 Conn. 344, 349-50 (2016) (citations omitted).
The Declaratory Judgment and Injunction Claims Are Moot
Defendants have moved to dismiss the fifth count and all claims for declaratory and injunctive relief as moot for lack of standing to complain about the alleged "strip search policy" and any typewriter restrictions at Garner because he is no longer incarcerated there. According to defendants, the claims in the fifth count and the declaratory and injunctive relief sought are moot and the court lacks jurisdiction to adjudicate them or issue the declaration and injunction requested. Plaintiff objected and submitted an affidavit that asserts, inter alia, that he was subjected to unreasonable strip searches after typewriter usage at Garner, that the searches violated department guidelines and duties owed to him as an inmate, that these searches after typewriter usage were only conducted at Garner, and, although he had been transferred from Garner, that institution was one of only four facilities in the state where he can be housed, that he has been transferred into and out of Garner on two separate occasions since 2010 and could return to Garner again and be subjected to the strip search policy at some point during his remaining sentence, which does not expire until October 2035.
It is undisputed that plaintiff is no longer an inmate at Garner. For purposes of deciding this motion, the Court will assume the following facts asserted by plaintiff: that while at Garner plaintiff was subjected to a strip search procedure after each usage of a typewriter, that he needed to use a typewriter for purposes of access to courts by written communications, the strip search policy was instituted by defendant Hakins, a state employee at Garner, and Garner is the only correctional facility in the state that has imposed an unwritten policy requiring strip searches of inmates after typewriter usage, as plaintiff stated in his affidavit submitted in opposition to the motion and in testimony at the hearing on January 31, 2019. Plaintiff has not complained about strip searches or typewriter access at his current facility. This action is solely focused on what plaintiff alleges occurred at Garner. Plaintiff argues that, although he is no longer an inmate at Garner, he could be transferred back to Garner, which is one of only four facilities in which he could be housed.
In Crocker v. Commissioner of Correction, 178 Conn.App. 191, 194 (2017), the Appellate Court held that the transfer of an inmate rendered moot an appeal from dismissal of a habeas corpus petition:
"We do not reach the merits of the petitioner’s claim because we conclude that his appeal is moot. ‘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 ... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way ... In other words, the ultimate question is whether the determination of the controversy will result in practical relief to the complainant.’" (Citation omitted.)
The Supreme Court in Wendy V. v. Santiago, 319 Conn. 540, 544-45 (2015), stressed that for there to be continuing subject matter jurisdiction an "actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal ... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot."
The Appellate Court discussed mootness and justiciability in Patterson v. Commissioner of Correction, 112 Conn.App. 826, 829-30 (2009).
" ‘Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court’s subject matter jurisdiction ...’ ‘The mootness doctrine is rooted in the first factor of the Nardini test [State v. Nardini, 187 Conn. 109 (1982) ] ... It is founded on the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue ... This court recently reiterated that the standing doctrine is designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented ... Indeed, we note that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law ...’ ‘[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal ... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.’" Id., quoting State v. Preston, 286 Conn. 367, 373-74 (2008).
In Patterson, 112 Conn.App. at 830, petitioner had filed a petition for habeas corpus yet the Appellate Court noted that he fully served his sentence and was released at the time of appeal so the court could not grant practical relief unless the case fell under an exception to the mootness doctrine. After rejecting the argument that the appeal was not moot under the "collateral consequences doctrine, " the Patterson Court analyzed the argument the case fell within the "capable of repetition yet evading review" exception to the mootness doctrine.
Under the collateral consequences doctrine "even if relief from the actual injury is unavailable due to a change in circumstances, ‘a controversy continues to exist, affording the court jurisdiction, if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant relief.’" State v. McElveen, 261 Conn. 198, 205 (2002). Plaintiff has not sought to invoke the "collateral consequences" doctrine, which does not appear applicable to the facts alleged.
"The mootness doctrine does not preclude a court from addressing an issue that is ‘capable of repetition, yet evading review.’ ... [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." Id., quoting Loisel v. Rowe, 233 Conn. 370, 382-83 (1995). Accord, Doe v. Hartford Roman Catholic Diocesan Corp., 96 Conn.App. 496, 499-500 (2006).
In Patterson, 112 Conn.App. at 836, the Court held that petitioner had failed to satisfy the first prong of the test to show that the challenged action or its effects is "of inherently limited duration."
"The first element in the analysis pertains to the length of the challenged action ... ‘If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced ...’ [A] party typically satisfies this prong if there exists a ‘functionally insurmountable time [constraint] ...’... or ‘the challenged action had an intrinsically limited lifespan.’" (Citations omitted.)
This case is similar to Carter v. Watson, 181 Conn.App. 637, 639-40 (2018), where an inmate was transferred to another institution after complaining about his confinement in restrictive housing more than 24 hours after an outside laboratory reported negative results in his drug test. The Court concluded the inmate’s transfer mooted his claim for declaratory relief. Id. at 644. Specifically, the Court held the "capable of repetition, yet evading review" exception was inapplicable because "there is no evidence of the challenged action having an inherently limited duration or intrinsically limited lifespan ... [and] no evidence in the record that such actions will be ‘strongly likely to become moot in the substantially majority of cases in which [they arise] ...’" Id. at 647 (emphasis in original), quoting Renaissance Management Co. v. Barnes, 175 Conn.App. 681, 687 (2017).
The Carter Court expounded on the burden a plaintiff must bear to satisfy the elements of the "capable of repetition, yet evading review" exception to mootnes.
"The first element in the analysis pertains to the length of the challenged action ... The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reach out to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome ... [A] party typically satisfies this prong if there exists a functionally insurmountable time [constraint] ... or the challenged action had an intrinsically limited lifespan." (Internal quotation marks omitted.) Renaissance Management Co. v. Barnes, supra, 175 Conn.App. at 687, 168 A.3d 530. Analysis under the second requirement "entails two separate inquiries: (1) whether the question presented will recur at all; and (2) whether the interests of the people likely to be affected by the question presented are adequately represented in the current litigation ... Commonly referred to as the surrogacy concept, that second inquiry requires some nexus between the litigating party and those people who may be affected by the court’s ruling in the future." (Citation omitted; internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 96 Conn.App. 496, 500-01, 900 A.2d 572, cert. denied, 280 Conn. 938, 910 A.2d 217 (2006). 181 Conn.App. at 645-46.
The Carter Court noted that there was no allegation in the complaint "that the events giving rise to his claims was part of a systemic, systematic, ongoing, frequent or even occasional practice or practice at [any correctional institution] ..." or that he had been subject to the same or similar occurrence since the events alleged. Id. at 647. This case is different from Carter in that plaintiff has asserted that the strip search policy at Garner is an ongoing practice based on an unwritten policy.
In the Fifth Count of the Complaint, plaintiff alleges that at Garner there is a strip search policy after an inmate has used the typewriter in the visiting area. If there is an ongoing strip search policy, it would not satisfy the requirement that the events be of a limited duration and there be a strong likelihood that the substantial majority of cases would become moot before litigation can be concluded. See Carter, 181 Conn.App. at 647. The constitutionality of the alleged policy could be challenged by any inmate at Garner who is subjected to the alleged strip search policy or subject to arbitrary restrictions on access to a typewriter. Because plaintiff is no longer an inmate at Garner subject to the alleged policy and practices, there is a question whether he would be an appropriate surrogate for those inmates still at Garner, who presumably are in better position to challenge their constitutionality. See Loisel v. Rowe, 233 Conn. 370 (1995) ("there must be some nexus between the litigating party and those people who may be affected by the court’s ruling in the future"); Doe, 96 Conn.App. at 500.
Plaintiff’s speculation that he might one day be transferred back to Garner and be subjected to that facility’s alleged strip search policy does not save the Fifth Count from dismissal for mootness. As the United States Supreme Court observed in City of Los Angeles v. Lyons, 461 U.S. 95, 108 (1983): "it is surely no more than speculation to assert that Lyons himself will again be involved in one of these unfortunate instances, or that he will arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury." Speculation also cannot support the mootness exception for disputes capable of repetition yet evading review. See id., 461 U.S. at 109 ("the capable-of-repetition doctrine only applies in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality"). Compare Anthony v. Commissioner of Corrections, 159 Conn.App. 226, 233-34 (2015) (for "collateral consequences" exception to mootness, must be "reasonable probability that prejudicial collateral consequences will occur"; "litigant must establish these consequences by more than mere conjecture ...").
The Court is not able to afford practical relief to plaintiff by injunction or declaration so it lacks subject matter jurisdiction to do so and the Fifth Count must be dismissed as moot.