Opinion
CV175038715
11-24-2017
Ian WRIGHT v. James DZURENDA et al.
UNPUBLISHED OPINION
OPINION
Vitale, J.
Pursuant to Practice Book § § 10-39 et seq., the defendant Steven Pichiarallo, (defendant) who is alleged by the plaintiff to be a State Marshall, moves to strike Count Three of the plaintiff’s complaint. The self-represented plaintiff commenced the present action, captioned " Civil Rights Complaint" on April 26, 2017. The complaint contains seventy-five (75) paragraphs. Paragraphs one through fifty-eight (58) are also incorporated into the Third Count, although it is not a model of clarity. The claims as to the defendant Pichiarallo are confined to Count Three. The defendant claims that the allegations contained in Count Three are " legally insufficient" in that, as to him, the plaintiff has failed to plead facts necessary to maintain an action for violation of an inmate’s " constitutional right to access to the courts."
The plaintiff objects to the motion and argues that although the defendant is not a " prison official, " he is still " liable" for " denying him access to the courts" due to his alleged failure to provide sufficient service of process with respect to a separate suit filed by the plaintiff against " Warden Semple, " an employee at Garner Correctional Institution. It is apparently undisputed that the plaintiff previously filed suit against employees of Garner, entitled Ian Wright v. Warden Semple et al., DBD CV11 5008931, and that said suit was dismissed for want of proper service of process upon the individual defendants. The judgment of dismissal was affirmed in a per curiam decision by the Appellate Court. This court heard argument on the defendant’s motion on November 6, 2017.
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 grated." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) America Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). The court must " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. Of New York v. Better Benefits, LLC, supra, 292 Conn. 120.
The motion to strike requires no factual findings by the court. Broadnax v. New Haven, 270 Conn. 133, 851 A.2d 1113 (2004). " 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." Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011).
" 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); but " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are not supported by the facts alleged." (Internal quotation marks omitted.) Bridgeport Harbour Place I., LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).
" The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ... We are limited ... to a consideration of the facts alleged in the complaint. A ‘speaking’ motion to strike (one imparting facts outside the pleadings) will not be granted." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988) (in ruling on motion to strike, court cannot resort to information outside the complaint). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically ..." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92 (2012).
" [I]t is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party ... The modern trend ... is to construe pleadings broadly and realistically, rather than narrowly and technically ... The courts adhere to this rule to ensure that [self-represented] litigants receive a full and fair opportunity to be heard, regardless of their lack of legal education and experience." (Internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 274 Conn. 563, 569, 877 A.2d 761 (2005).
The decisions of the United States Supreme Court have grounded the 42 U.S.C. § 1983 right of access to courts in the article four privileges and immunities clause, the first amendment petition clause, the fifth amendment equal protection and due process clauses to the United States constitution. Christopher v. Harbury, 536 U.S. 403 415 n.12, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). " To state a valid § 1983 claim, a plaintiff must establish that (1) the conduct complained of was committed by a person acting under color of state law, and (2) this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States ... The United States Supreme Court recently restated that in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated ... Therefore, the contours of the federal right of access to the courts must be examined." (Citations omitted; internal quotation marks omitted.) Lombardi Rest Home, Inc. v. Richter, 63 Conn.App. 646, 653, 778 A.2d 230 (2001). " It is well established the ‘prisoners have a constitutional right of access to the courts ... [and that such access must be] adequate, effective and meaningful.’ (Citations omitted; internal quotation marks omitted.) Bounds v. Smith, 430 U.S. 817, 821-22, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)." Sadler v. Commissioner of Correction, 100 Conn.App. 659, 661, 918 A.2d 1033, cert. denied, 285 Conn. 901, 932 A.2d 593 (2007). The court in Bounds v. Smith, supra, held that " the 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." Id. at 829. " A prisoner has a constitutional right of access to the courts for the purpose of presenting his claims, a right that prison officials (emphasis added) cannot unreasonably obstruct and that states have affirmative obligations to assure." Id. at 821-23. The parameters of the right of access to the counts has been developed primarily in cases where prison regulations or restrictions operated to deprive inmates of their constitutional right to seek redress from the judicial system. Importantly, these cases or other cases in non-prison contexts, involve deliberate state conduct that operated to bar plaintiffs from meaningful access to judicial review of the claims. See Banks v. County of Westchester, 169 F.Supp.3d 682 (S.D.N.Y. 2016) (intentional obstruction of prisoners access is the sort of oppression that the Fourteenth Amendment and 42 U.S.C. § 1983 are intended to remedy); Holloman v. Clark, 208 F.Supp.3d 373 (D.Mass. 2016) (to state a First Amendment claim for denial of access to the counts, a prisoner must identify a policy or practice that denies inmates meaningful access to the courts and allege that the policy or practice hindered the prisoner from pursuing a legal claim); Konigsburg v. LaFevie, 267 F.Supp.2d 255 (N.D.N.Y., 2003) (to establish standing to assert a claim of denial of access to the courts, a prisoner must demonstrate that prison officials frustrated or impeded a prisoner’s efforts to pursue a non-frivolous legal claim). In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law. " Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.’ " United States v. Int ’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 941 F.2d 1292, 1295-96 (2d Cir. 1991). " A private actor acts under color of style law when ‘the private actor’ is a willful participant in joint activity with the state or its agents." Ciambrillo v. County of Nassau, 292 F.3d 307, 324 (E.D.N.Y. 2010) (internal citations omitted). " A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity." Id.
Considering the foregoing principles of law, the court concludes that the Third Count does not sufficiently allege that the defendant is a state actor for purposes of a 42 U.S.C. § 1983 action. See Bridgeport Harbour Place I, LLC, supra . The plaintiff conceded at oral argument that the defendant is not a prison official. The plaintiff’s claims in the Third Count are not fairly construed as alleging that the defendant acted willfully, intentionally, and in concert with state prison officials to deny him access to the courts, or that he conspired to do so. Particularly as a non-prison official, or non-custodian of the plaintiff, the defendant’s conduct as alleged in the Third Count falls beyond the deliberate or intentional state action the case law describes as obstructing a prisoner’s right to access to the courts.
Further, by statute, state marshals are independent contractors. Connecticut General Statutes § 6-38a(a); Kim v. Emt, 153 Conn.App. 563, 569, cert. denied 315 Conn. 908 (2014) (state marshals are not, however, state employees and are expressly forbidden from employment by the state while they are serving as Marshals). Thus, as to this defendant, the plaintiff has failed to assert facts that demonstrate that his alleged conduct constituted state action for purposes of a claim pursuant to 42 U.S.C. § 1983 as alleged in the Third Count.
Therefore, the Defendant Pichiarallo’s Motion to Strike is granted.
Based on the foregoing, the court does not reach the remaining claims advanced by the Defendant Pichiarallo that he alleges also warrant favorable action on the instant motion to strike.