James Hanton v. Sally Pitcher et al. (2010)

RULING ON MOTION TO DISMISS

The defendant Sally Pitcher has filed a motion to dismiss the following grounds:  (1) insufficient service of process, (2) the state actor doctrine or (3) the failure to exhaust administrative remedies.   The plaintiff's failure to file a grievance through the department of correction renders the suit subject to a motion to dismiss for failure to exhaust administrative remedies.   Because the doctrine requiring exhaustion of administrative remedies implicates the court's subject matter jurisdiction, the court addresses only this ground.   Having found that the plaintiff has failed to exhaust his administrative remedies, the court grants the defendant Sally Pitcher's motion to dismiss.

PROCEDURAL HISTORY

The plaintiff, James Hanton, filed a complaint against the defendants, Sally Pitcher, Robert Neroe, Black Hawk Security and Connecticut Works, on August 6, 2010.   The amended complaint, filed on October 7, 2010, alleges that, “due to the defendants' actions the plaintiff's [first] amendment rights were violated to be free from retaliation.”   The amended complaint alleges the following facts.   The plaintiff, an inmate of the Connecticut department of correction, had been released from incarceration and was participating in a residential program operated at the Sierra Center.   On July 1, 2010, Pitcher, a case manager at the Sierra Center, allegedly created a false “program violation report” which stated that the plaintiff, was “out of place” by being at a location known as Connecticut Works at 560 Ella Grasso Boulevard in New Haven, Connecticut.   The alleged impetus for this false report was the plaintiff's refusal to withdraw a civil action against the Sierra Center and for filing certain unidentified “grievances” against her.

Pitcher filed a motion to dismiss the claims against her on September 15, 2010.   The motion was accompanied by a memorandum of law in support as required by Practice Book § 10-31(a).   The plaintiff filed an objection on September 30, 2010.

DISCUSSION

“The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).   Pitcher argues that the claims against her should be dismissed on three grounds:  first, that this court lacks personal jurisdiction over her because 101 Glen Haven Road in New Haven, Connecticut, the location where abode service was attempted by the marshal, was not her usual place of abode on August 4, 2010;  second, that this court lacks subject matter jurisdiction over the plaintiff's first amendment claims against her because she is not a state actor;  third, that this court also lacks subject matter jurisdiction due to the fact the plaintiff has failed to exhaust administrative remedies provided by the department of correction.   As discussed above, the court only addresses the third ground.

EXHAUSTION

“Under [the exhaustion of administrative remedies doctrine], a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ․ In the absence of exhaustion of that remedy, the action must be dismissed.”  (Internal quotation mark omitted.)  Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009).   “Because the [exhaustion doctrine] implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim.”  (Internal quotation marks omitted.)   Id.

“The Department of Correction shall provide a means for an inmate to seek formal review of an issue relating to any aspect of an inmate's ¹ confinement that is subject to the Commissioner's authority.”   Department of correction administrative directive 9.6 (Inmate Administrative Remedies), § 1. “All matters subject to the Commissioner's authority for which another remedy is not provided are grievable.”   Id., § 6B. General Statutes § 18-81 gives the commissioner the authority to administer and maintain community based programs.

“An inmate must attempt to seek informal resolution prior to filing an inmate grievance ․” Id., § 6A. “An inmate may file a grievance if the inmate is not satisfied with the informal resolution offered.”   Id., § 6C. “Grievances that are upheld shall be given an appropriate and meaningful remedy.   Such remedies may include, but not be limited to:  (1) corrective action to rectify the matter being grieved;  (2) changes in written policies and procedures or in their interpretation or application;  (3) enforcement of existing policies and procedures;  or, (4) development of policies and procedures pertaining to the grievance.”   Id., § 6D. Moreover, any unfavorable disposition may be appealed within the administrative agency.   See id.;   §§ 6I, 6K-6L.

In the present case the plaintiff could have filed a grievance with the department of correction regarding alleged false report.   A host of remedies would be available to the plaintiff if, as he suggests, the report was filed for a malicious purpose.   Such remedies could presumably include moving the plaintiff to a different community based program, establishing additional procedures to prevent the filing of a false reports or even a termination of the contract between the defendant's employer and the department of correction.   The plaintiff does not allege or even argue that he pursued such administrative remedies.²

It is important to note that the mere fact that the plaintiff's chosen remedy, money damages, is unavailable to him through the grievance process is inapposite.   This issue was addressed in Mercer v. Rodriquez;  in that case the plaintiff claimed that he need not “exhaust the department's grievance procedure because the grievance procedure does not provide for damages.”   Mercer v. Rodriquez, 83 Conn.App. 251, 263-64, 849 A.2d 886 (2004).   In addressing this issue, the Appellate Court stated:  “the word exhausted has a decidedly procedural emphasis.   It makes sense only in referring to the procedural means, not the particular relief ordered ․ [O]ne exhausts processes, not forms of relief ․ In the matter before us, we therefore conclude that the plaintiff was required to exhaust the available department grievance procedure before he brought an action in the Superior Court seeking relief under federal law.”  (Citations omitted;  Internal quotation marks omitted.)  Id., 264.

For the foregoing reasons, the defendant's motion to dismiss is granted because the plaintiff has failed to exhaust his administrative remedies afforded to him by the department of correction.

Frechette, J.

FOOTNOTES

FN1. An “inmate” is defined by the administrative directive as:  “A person in the custody of the Commissioner of Correction to include those confined in a facility or under community supervision.”   Department of correction administrative directive 9.6 (Inmate Administrative Remedies), § 3G..  FN1. An “inmate” is defined by the administrative directive as:  “A person in the custody of the Commissioner of Correction to include those confined in a facility or under community supervision.”   Department of correction administrative directive 9.6 (Inmate Administrative Remedies), § 3G.

FN2. The plaintiff does state in his opposition to the motion to dismiss that “the department of correction rejected defendant Pitcher's program violation due to it being unfounded and unsupported by any evidence.”   This proceeding, however, does not inhibit the plaintiff's ability to pursue the grievance procedure afforded to inmates under administrative directive 9.6..  FN2. The plaintiff does state in his opposition to the motion to dismiss that “the department of correction rejected defendant Pitcher's program violation due to it being unfounded and unsupported by any evidence.”   This proceeding, however, does not inhibit the plaintiff's ability to pursue the grievance procedure afforded to inmates under administrative directive 9.6.

Frechette, Matthew E., J.