Lawrence Townsend v. Counselor Wilson (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 116)

FACTS

On October 6, 2008, the plaintiff, Lawrence Townsend, filed a writ of mandamus, seeking an order from this court to compel the defendant, Counselor Wilson, to comply with the Connecticut Department of Correction's Administrative Directive 9.5 (A.D.9.5).   According to the writ, the plaintiff, an inmate who was confined to the Corrigan Correctional Institution in Uncasville, Connecticut at the time, was issued a disciplinary ticket by a correctional officer for exiting his cell with no intention of attending a vocational class and for disobeying a direct order.   On the same day, the plaintiff maintains he was issued another disciplinary ticket for threatening.   At a subsequent disciplinary hearing, the plaintiff alleges that his request to call the warden, deputy warden and grievance counselor as witnesses was denied, an alleged violation of A.D. 9.5, § 25.   The plaintiff claims this was a violation of his due process rights.   In his writ, the plaintiff requests injunctive relief that would require the defendant to comply with A.D. 9.5.

After filing an answer on April 1, 2009, the defendant filed a motion for summary judgment on January 26, 2011.   The motion is accompanied by a memorandum of law.   The plaintiff filed an objection to the defendant's motion for summary judgment on February 1, 2011.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).  “Once the moving party has met its 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].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

A.D. 9.5 § 27 states in relevant part:  “An accused inmate may have an opportunity to present witness testimony at a disciplinary hearing.”   The remainder of the section details the procedure for both inmate and staff member testimony.   Section A states:  “The Investigator shall ascertain whether the inmate wants to call witnesses.   If so, the Investigator shall record the names on CN 9505, Disciplinary Investigation Report.   The inmate's failure to identify witnesses to the Investigator shall make any subsequent request for a witness subject to the Hearing Officer's discretion.”

The U.S. Supreme Court, in Sandin v. Conner, 515 U.S 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), expressly disapproved of searching prison regulations for mandatory language in an attempt to create liberty interest.  “By shifting the focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the nature of the deprivation, the Court encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges.   Courts have, in response ․ drawn negative inferences from mandatory language in the text of prison regulations ․ Such a conclusion may be entirely sensible in the ordinary task of construing a statute defining rights and remedies available to the general public.   It is a good deal less sensible in the case of a prison regulation primarily designed to guide correctional officials in the administration of a prison ․ [S]uch regulations [are] not designed to confer rights on inmates ․” Id., 481–82.

Instead, the Supreme Court held “that States may under certain circumstances create liberty interests which are protected by the Due Process Clause ․ But these interests will be generally limited to freedom from restraint which ․ imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”  (Citations omitted.)  Id., 483–84.

The Court further noted that the process of punishing incarcerated prisoners “effectuates prison management and prisoner rehabilitative goals ․ Admittedly, prisoners do not shed all constitutional rights at the prison gate ․ but [l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.”  (Citations omitted;  internal quotation marks omitted.)  Id., 485.

The relevant jurisprudence in this state is clear.  “In order to state a claim for a denial of procedural due process ․ a prisoner must allege that he possessed a protected liberty interest, and was not afforded the requisite process before being deprived of that liberty interest ․ A petitioner has no right to due process [at his disciplinary hearing] unless a liberty interest has been deprived ․ To constitute a deprivation of liberty, a restraint must have imposed an atypical and significant hardship ․ in relation to the ordinary incidents of prison life ․ Additionally, the petitioner must establish that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.”  (Citations omitted;  internal quotation marks omitted.)   Coleman v. Commissioner of Correction, 111 Conn.App. 138, 141, 958 A.2d 790 (2008).

In the present case, there is no genuine issue of material fact that an alleged violation of A.D. 9.5 does not implicate the plaintiff's due process rights.   There is no material evidence in dispute that the violation complained of imposed an atypical or significant hardship on the plaintiff in relation to the ordinary incidents of prison life.   There is no evidence before the court that the plaintiff suffered harm as a result of the defendant's actions.   Mere assertions by the plaintiff of the existence of a disputed issue are insufficient to withstand the defendant's motion for summary judgment.   Therefore, the defendant has met his burden of establishing that he is entitled to a judgment as a matter of law.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is hereby granted.

Cosgrove, J.

Cosgrove, Emmet L., J.