Opinion
DBDCV145009263S
11-20-2019
Ian WRIGHT v. Commissioner James DZURENDA, et al.
UNPUBLISHED OPINION
Brazzel-Massaro, J.
I. INTRODUCTION
The plaintiff, Ian Wright, filed this action in five counts on October 8, 2014. He named three defendants, Commissioner James Dzurenda, Bonnie Hakins and Correctional Officer Santilli. The court has decided two motions to dismiss. The first motion decided by Judge Ozalis granted the motion to dismiss counts one, two, and three on August 31, 2016. Thereafter the court, Krumeich, J., granted a motion to dismiss count five on February 4, 2019.
The defendant filed a motion for summary judgment as to the only remaining count, count four, on April 15, 2019. The plaintiff filed a memorandum in opposition with exhibits on June 20, 2019. The court heard argument by video conferencing on October 21, 2019.
II. FACTS
The plaintiff is an inmate at the Corrigan Radowski Correctional Center and is self-represented in this action against the defendants. Count four alleges that the defendant Bonnie Hakins in her individual capacity had a duty to provide the plaintiff with typewriter access in order to gain access to the court and that she failed to provide typewriter access and she retaliated against the plaintiff for filing a grievance about her denying him access to the typewriter. The plaintiff alleges that this conduct violated the constitution and the Department of Correction’s Administrative Directive 2.17(5)(B)(15)(a) and (b). The plaintiff asserts his federal constitutional rights pursuant to 42 U.S.C. § 1983.
The plaintiff alleges the following facts. The defendant, in her role as a counselor assigned to the unit in which the plaintiff was housed at Garner Correctional Institute, refused to give the plaintiff adequate access to a typewriter so he could prepare legal documents to file with the Appellate Court. The plaintiff filed a grievance against the defendant on. April 30, 2014, and alleges that the typewriter he received access to on May 5, 6, and 7, 2014 did not have corrective ribbon. The plaintiff subsequently filed a second line of grievance on May 13, 2014, in response to the lack of access to the typewriter. The plaintiff alleges that the defendant issued him a pass on May 27, 2014, to use the typewriter but it was out of ribbon. He was also unable to use the typewriter on June 2, 2014, because another inmate needed to use that room. The defendant told the plaintiff that he would be able to use the typewriter the following day, but he did not get access that day. Further, the plaintiff alleges that he was denied access on June 9, 2014, and June 10, 2014.
In oral argument before this court, the plaintiff argued that the Appellate Court would not accept any appeal or memorandum which is not typed.
III. DISCUSSION
Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). "The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried" (citations omitted). Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met the burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Ferri v. Powell-Ferri, 317 Conn. 233, 228 A.3d 297 (2015).
"The party moving for summary judgment ... is required to support its motion with supporting documentation. Including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence ... If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Rivera v. CR Summer Hill, Ltd. Partnership, 170 Conn.App. 70, 74, 154 A.3d 55 (2017).
The defendant moves for summary judgment arguing the following: (1) the plaintiff was not subject to retaliation; (2) the plaintiff had access to the court and therefore lacks standing to bring this claim; (3) the defendant enjoys qualified immunity; (4) the defendant enjoys statutory immunity; and (5) the plaintiff has not received permission to sue from the Claims Commissioner. The defendant’s special defenses include qualified immunity and the plaintiff’s failure to exhaust available administrative remedies.
A. Unauthenticated Documents
As a threshold matter, the court must consider whether the exhibits submitted by the defendant in support of this motion for summary judgment are to be considered. In this affidavit, the plaintiff challenges the authenticity of Defendant’s Exhibit B.
"[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). In Gianetti v. Anthem Blue Cross & Blue Shield, 111 Conn.App. 68, 73, 957 A.2d 430 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009), the Appellate Court of Connecticut determined that the trial court did not act improperly in finding the plaintiff’s exhibits inadmissible. This was because "the plaintiff failed ... to attach an affidavit attesting to the truth and accuracy of the various submissions, to provide certified copies of any of the documents or to authenticate the documents submitted in any other acceptable way." Id.
Defendant’s Exhibit B has not been authenticated. Accordingly the court declines to consider it. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) (the court has discretion to consider or exclude unauthenticated documents).
B. Retaliation
The defendant argues that the plaintiff was not subject to retaliation because he received access to the typewriter upon request. At the hearing on the motion, the defendant argued that one of the required elements to establish a retaliation claim, adverse action by the defendant, was not met. This is because a person of ordinary firmness would not be deterred from continuing to file grievances. The plaintiff argues that the defendant retaliated against him because each of the required elements were met. These include that the plaintiff has a constitutional right to redress his grievances, the defendant performed the adverse action of denying the plaintiff access to the typewriter, and there is a causal connection between the plaintiff’s exercise of his right to file grievances and the defendant’s action restricting the plaintiff’s access to the typewriter because of the temporal proximity between them.
To pursue a first amendment claim for retaliation, "a prisoner must adduce evidence of (1) protected speech or conduct, (2) adverse action by [the] defendant, and (3) a causal connection between the protected speech and the adverse action." Bilal v. White, 494 Fed.Appx. 143, 146 (2d Cir. 2012). For the first element, "[p]risoners, like non-prisoners, have a constitutional right of access to the courts and to petition the government for the redress of grievances, and prison officials may not retaliate against prisoners for the exercise of that right." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Regarding the second element, the court "previously defined adverse action objectively, as retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights." (Internal quotation marks omitted.) Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004). For the third element, "[s]everal factors come into play in determining whether a causal connection exists: (1) the temporary proximity between the plaintiff’s protected activity and the defendant’s adverse action, (2) the prior disciplinary record of the inmate, (3) the outcomes of any hearings regarding the allegedly retaliatory charges, and (4) any statements [the] defendant makes concerning his motive." Davidson v. Bartholome, 460 F.Supp.2d 436, 444 (S.D.N.Y. 2006).
In the present case, the defendant argues that the plaintiff was not subject to retaliation in violation of the first amendment because he had access to the typewriter. The defendant supports this argument by citing to Defendant’s Exhibit B, an unauthenticated copy of a typed log purporting to provide information about the plaintiff’s requests, including the plaintiff’s access to the typewriter, and Defendant’s Exhibit C, a copy of a letter to the plaintiff dated September 3, 2014, stating that the facility informed the Acting Director of the Legal Affairs Unit that the plaintiff had access to a typewriter two to three times per week and the plaintiff refused opportunities to use the typewriter because it conflicted with the plaintiff’s recreation time. As noted previously, the defendant has not authenticated Defendant’s Exhibit B. Moreover, the plaintiff avers in his affidavit that the defendant fabricated entries in the typewriter log book to further her own motives. Accordingly, a genuine issue of material fact exists as to whether the plaintiff was denied access to the typewriter.
The defendant also argues that the court previously considered Defendant’s Exhibit C to be evidence that the plaintiff had far more typewriter access than what he alleged in the complaint, citing to Judge Ozalis’ August 31, 2016 decision that the letter constituting Defendant’s Exhibit C reveals a factual dispute about typewriter access because the letter’s statements and the plaintiff’s statements conflict. In the defendant’s subsequent motion for summary judgment, she failed to meet her burden of addressing the factual dispute because she did not submit an authenticated document providing the dates that the plaintiff received access to the typewriter. The plaintiff has provided an affidavit stating the dates he was denied access to the typewriter, and stating that the defendant’s log entries are a fabrication. Consequently, a genuine issue of material fact remains that prevents the court from determining if there was retaliation in violation of the first amendment. Thus, the motion for summary judgment is denied on the ground that there was no retaliation in violation of the first amendment.
C. Access to the Courts
The defendant argues that the plaintiff has failed to show that he did not receive meaningful access to the courts because he has not provided any examples of one of his cases failing due to lack of access to a typewriter and therefore his retaliation claim lacks standing. The plaintiff does not offer a direct counterargument to this point.
"[A] complainant [has met the requirements for standing when he] makes a colorable claim of direct injury he has suffered or is likely to suffer ... Classical aggrievement requires a two-part showing. First, a party must demonstrate a specific, personal legal interest in the subject matter of the [controversy] ... Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest." Andross v. West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008). "Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." (Internal quotation marks omitted.) Pomazi v. Conservation Commission, 220 Conn. 476, 483, 600 A.2d 320 (1991). "To establish standing for a claim for the denial of access to the courts, an inmate must show that he has suffered an actual injury traceable to the challenged conduct of prison officials ..." (Internal quotation marks omitted.) Amaker v. Fischer, 453 Fed.Appx. 59, 63 (2d Cir. 2011).
The defendant’s standing argument is relevant to the first three counts in the complaint which allege that several defendants denied the plaintiff access to the typewriter. Judge Ozalis previously dismissed these three counts for lack of standing because the plaintiff did not demonstrate sufficiently that his alleged lack of access to the typewriter resulted in his lack of access to the courts. Contrastingly, the fourth count of the complaint alleges that the defendant retaliated against him. Judge Ozalis previously determined that the plaintiff alleged facts sufficient to meet the criteria for each element of this claim. As the party moving for summary judgment, the defendant has the burden to demonstrate the absence of genuine issues of material fact. The defendant failed to provide authenticated documents that reveal the amount of typewriter access the plaintiff received. The plaintiff offered an affidavit with the dates he was denied access to the typewriter. The defendant failed to demonstrate that the plaintiff did not suffer an adverse action. Therefore, the motion for summary judgment is denied on the grounds that the plaintiff had access to the courts and subsequently lacks standing to bring a retaliation claim.
D. Qualified Immunity
The defendant argues in her motion for summary judgment that she is entitled to qualified immunity, which she has also alleged as a special defense, because she did not deny the plaintiff access to the typewriter and her conduct was lawful and reasonable as demonstrated by Defendant’s Exhibit B. She also argues that a reasonable correctional officer would not find her actions to be unlawful. The plaintiff argues that the defendant violated his first amendment right to petition the government to redress his grievance because the defendant retaliated against him, and the defendant knew this conduct violated the plaintiff’s clearly established right because it was addressed in the Department of Correction’s Administrative Directive 2.17(5)(B)(15)(a).
The defendant states in her special defense for qualified immunity that she did not violate a clearly established right of the defendant and she acted reasonably under the circumstances. It is clear that the defendant intended to allege that she did not violate a clearly established right of the plaintiff .
The plaintiff asserts his federal constitutional rights pursuant to 42 U.S.C. § 1983 in requesting an award of punitive damages from the defendant for her alleged retaliatory conduct. "(A] claim for qualified immunity from liability for damages under § 1983 raises a question of federal law and state law. Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent and may not expand or contract the contours of the immunity available to government officials." (Citation omitted, internal quotation marks omitted.) Schnabel v. Tyler, 230 Conn. 735, 742-43, 646 A.2d 152 (1994). "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? ... [I]f a violation could be made out on a favorite 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, and as a broad general proposition ..." Brooks v. Sweeney, 299 Conn. 196, 217, 9 A.3d 347 (2010).
In Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court mandated completion of the two-step procedures in this particular order. Nevertheless, the Supreme Court clarified in Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis be addressed first in light of the circumstances in the particular case at hand."
In the present case, Judge Ozalis determined that the plaintiff alleged facts in his complaint that satisfy the three elements required for a first amendment retaliation claim. The defendant failed to meet her burden to demonstrate that the plaintiff did not suffer an adverse action because she did not provide authenticated documents revealing the amount of typewriter access the plaintiff received. The plaintiff pleaded facts showing that the defendant violated his first amendment right to petition the government to redress his grievance. Moreover, the plaintiff demonstrated that the right was clearly established by citing to the Department of Correction’s Administrative Directive 2.17(5)(B)(15)(a), which prohibits retaliation against an inmate for filing a grievance. Therefore, the motion for summary judgment is denied on the ground of qualified immunity.
E. Statutory Immunity
The defendant argues that under General Statues § 4-165, statutory immunity applies to state officers who did not act in a way that was wanton, reckless or malicious while working in the scope of their employment and that it is clear from applying these principles that the plaintiff’s complaint fails to overcome the defendant’s statutory immunity. The plaintiff argues that he has alleged sufficient facts under § 4-165 that demonstrates the defendant acted outside the scope of her employment and she did so wantonly, recklessly or maliciously.
Section 4-165(a) provides: "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." "Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 ... cannot be immunized by state law." Martinez v. California, 444 U.S. 277, 284 n.8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). "A plain text reading of the statute reveals that a § 1983 action may only assert violations of federal rights. Section 4-165, by its terms, applies to a state law cause of action and not a federal cause of action." Diaz v. Berrios, Superior Court, judicial district of Hartford, Docket No. CV-17-5045715-S (January 23, 2019, Dubay, J.). The Diaz court found that a state law claim against a defendant is independent from the § 1983 claim and further the application of 4-165 is to state law claims against the defendant who is a government employee sued in her individual capacity. Count four of the plaintiff’s complaint clearly states that the action of Hakins violated a Department of Correction’s directive but that the claim is a violation of his constitutional right in that she has retaliated. "[T]he defense of statutory immunity can be raised for claims brought against state employees acting in their individual capacities." Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006).
The plaintiff brought this complaint pursuant to 42 U.S.C. § 1983. The defendant’s argument that she enjoys statutory immunity does not apply to the allegations in count four of the complaint because this count alleges retaliatory conduct in violation of the constitution, a federal law claim. The plaintiff also alleges in count four that the retaliation was not abiding by the Department of Correction’s Administrative Directive 2.17(5)(B)(15)(a) and (b), however, no state law claims are alleged. The defendant is merely bootstrapping the violation to the federal claim which will not change the cause of action to one under state law. Thus, summary judgment is denied on the ground of statutory immunity.
F. Permission to Sue and Exhausting Administrative Remedies
In the motion for summary judgment, the defendant alleges that the plaintiff has not received permission to sue from the Claims Commissioner. In the defendant’s answer and special defenses, the defendant alleges that the claim is barred by the Prison Litigation Reform Act because the plaintiff failed to exhaust administrative remedies. In his affidavit, the plaintiff details the actions he took to follow the Department of Correction’s Administrative Directive 9.6 and provides copies of his inmate administrative remedy form and inmate grievances appeal form in Plaintiff’s Exhibit 2.
General Statute § 4-165b(a) provides: "Any inmate, as defined in section 18-84 who suffers an injury may file a claim against the state. Such claim shall be heard and decided in accordance with the provisions of this chapter, provided no such claim shall be presented to the Office of the Claims Commissioner until the inmate has exhausted all administrative remedies provided by the Department of Correction." (Emphasis added.) The Department of Correction’s Administrative Directive 9.6(6) provides the inmate grievance procedure, which includes the steps for engaging in informal resolution, filing a grievance, and appealing grievance decisions.
In the present case, the defendant argues that the plaintiff has not received permission from the Office of the Claims Commissioner and the plaintiff has failed to exhaust administrative remedies, however, she does not offer any evidence of this. The plaintiff offers evidence of the administrative procedures he followed. The defendant fails to demonstrate that there are no genuine issues of material fact regarding the plaintiff’s exhaustion of his administrative remedies. Moreover, the plaintiff is suing the defendant in her individual capacity and therefore, permission from the Office of the Claims Commissioner is unnecessary. As a result, the defendant has failed to meet her burden as the moving party. The motion for summary judgment is denied as to the claim that the plaintiff failed to receive permission from the Office of the Claims Commissioner and to exhaust administrative remedies.
IV. CONCLUSION
The defendant has failed to meet her burden as the moving party to demonstrate that there are no genuine issues of material fact and the plaintiff has provided evidence of a genuine issue of material fact. The motion for summary judgment is denied.