James Harnage v. Brian Murphy (2012)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (# 139), AND DEFENDANTS' CROSS PARTIAL MOTION FOR SUMMARY JUDGMENT (# 161)

On May 6, 2011, the plaintiff, James Harnage, a pro se inmate,¹ filed a partial motion for summary judgment on the ground that there are no genuine issues of material fact regarding alleged unconstitutional strip searches conducted by the defendants, various state officials and corrections officers at Corrigan Correctional Institute (CCI).²  The motion is accompanied by a memorandum of law.   The defendants filed an objection to the plaintiff's motion and a cross partial motion for summary judgment on October 3, 2011.   On November 17, 2011, the plaintiff filed a response.   This matter was heard on the short calendar on December 5, 2011.

On March 9, 2010, the plaintiff filed a seven-count complaint against the defendants seeking both injunctive and monetary relief.   In count one, the plaintiff alleges that in June 2008, the plaintiff was housed at the CCI, a level four housing portion of the Corrigan–Radgowski Correctional Center.³  Upon admission to Corrigan, the plaintiff was subjected to an “an unreasonable policy of municipal ⁴ employees performing blanket strip body cavity searches.”   The “new admittees are lined up side by side, 3–4 at a time, and made to strip off all their clothing, lift their genitals to expose the backside of the scrotum, open their mouths and move the tongue around, then squat and cough while spreading their buttocks open to expose the anal body cavity.”   The searches were conducted “despite any consideration for their charges and absent any suspicion” that the inmates were carrying contraband.   The defendants made no effort to conduct the searches in a private setting, even though there were private rooms available for this purpose.

In count two, the plaintiff alleges that the “unconstitutional blanket policy of performing strip body cavity searches extended well beyond admissions processing procedures” and were conducted when inmates returned from court.   The strip searches were conducted in a room that contains a plate glass window that stretches the length of the room.   On the other side of the window is a holding cell that “holds an average of 25–30 outgoing inmate transferees who are free to view the ongoing strip searches.”   Additionally, there is an open window space at the opposite end of the room where two corrections officers and three inmates, on average, watch the strip searches being performed.   To the right of that window space is another window that views the admissions processing desk, where new inmates are photographed and fingerprinted.   As many as eight to ten municipal employees and/or inmates are in a position to view the searches from that area.   Further, municipal employees of the opposite sex have been in a position to view the strip searches on more than one occasion.

In count three, the plaintiff alleges that he was forced to eat all of his meals in his cell.   Count four contains allegations that the plaintiff was not given enough time to eat his meals while housed at CCI. The plaintiff alleges that “[i]n direct contradiction to the DOC Administrative Directives that require that inmates be allowed a full 20 minutes within which to eat their meals, the named defendants have only been allowing a mere 6–8 minutes, on an average, for inmate meal periods.”   Further, when the plaintiff filed grievances in an attempt to remedy the problem, “the facility staff members retaliated” against him.   Count five contains allegations against Claims Commissioner James Smith, who has been dismissed from this action.   Count six contains allegations that Officer Wales retaliated against the plaintiff because of the present lawsuit by issuing a disciplinary report for the plaintiff's possession of a “stinger.”   Count seven contains allegations that the strip search conducted after the officers found the “stinger” was unlawful.⁵

In support of its motion, the plaintiff submits as evidence a signed and sworn affidavit of the plaintiff, as well as affidavits of nineteen other inmates.   In support of its opposition to the plaintiff's motion and in support of its cross motion, the defendants have submitted as evidence a judgment mittimus of the plaintiff;  the department of correction movement history for the plaintiff;  Administrative Directive (A.D.) 6.7, effective June 1, 2006;  A.D. 6.7, effective January 31, 2009;  a signed and sworn affidavit of Warden Scott Erfe, with photo attachments and a signed and sworn affidavit of Michelle DeVeau.   In his reply, the plaintiff submitted as evidence a signed and sworn affidavit of the plaintiff and affidavits from sixteen other inmates, photos of the strip search area with an affidavit of the plaintiff attesting to their accuracy, and a continuance history of the plaintiff.   The defendants submitted a supplemental affidavit of Lieutenant Martin Pluszynski along with photographs and a diagram of the search area.

For the reasons stated below, the court denies the plaintiff's motion for summary judgment as there are material facts in genuine dispute.   The defendant's motion for summary judgment is granted in part and denied in part.   The motion is granted as it relates to the plaintiff's demand for monetary damages on counts one and two.   These claims for money damages are barred by sovereign immunity.   The defendant's motion is denied in all other respects.

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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The plaintiff makes two principal arguments in his motion.   First, the plaintiff argues that the defendants perform strip searches on inmates entering Corrigan under a “blanket operational policy” that contradicts A.D. 6.7.   Specifically, the plaintiff argues that the defendants unconstitutionally strip search all individuals—regardless of the nature of their offense—for administrative ease.   Second, the plaintiff argues that the defendants perform strip searches on individuals in the presence or view of numerous persons not involved in the search, which violates the plaintiff's constitutional rights.

The defendants counter that sovereign immunity requires judgment be entered in their favor to the extent that they are being sued in their official capacities.   The defendants argue that the plaintiff cannot maintain his action for damages, as there has been no waiver of sovereign immunity or authorization from the claims commissioner to bring this suit.   Regarding the plaintiff's claim for injunctive relief, the defendants argue that the matter is moot, as the plaintiff is no longer housed at Corrigan.   The defendants also argue that, to the extent that they are being sued in their individual capacities, statutory immunity bars the plaintiff's claim.   Additionally, the defendants argue that strip searches of all inmates entering or leaving the prison is lawful, and the plaintiff's allegation that the searches are conducted in the presence of twenty-five to thirty inmates is incorrect.

The plaintiff replies that he has filed his claims for monetary damages against the defendants in their individual capacities.   Additionally, the plaintiff argues that two exceptions to the doctrine of sovereign immunity apply to his claims for injunctive relief, as the officers violated his constitutional rights and he has made a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officers' statutory authority.   Further, the plaintiff argues that his claim is not moot because he may be transferred back to Corrigan during the remainder of his incarceration.   The plaintiff also argues that the defendants are not entitled to statutory immunity, as the officers' conduct was wanton, reckless and malicious.   Lastly, the plaintiff argues that strip searches of all inmates is not lawful and that A.D. 6.7, although constitutional as written, has not been implemented in a constitutional manner.

A.

The court will first determine whether the plaintiff's claims are barred by the doctrine of sovereign immunity.  “The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law ․ [T]he practical and logical basis of the doctrine [of sovereign immunity] is today recognized to rest ․ on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property ․ Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state ․ Exceptions to this doctrine are few and narrowly construed under our jurisprudence.”  (Citations omitted;  internal quotation marks omitted.)  Markley v. Dept. of Public Utility Control, 301 Conn. 56, 65, 23 A.3d 668 (2011).

A.1.

“If the plaintiff's complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims.”  Miller v. Egan, 265 Conn. 301, 307, 828 A.2d 549 (2003).   There are “four criteria to determine whether an action is in effect, one against the state and cannot be maintained without its consent:  (1) a state official has been sued;  (2) the suit concerns some matter in which that official represents the state;  (3) the state is the real party against whom relief is sought;  and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.”  (Internal quotation marks omitted.)  Id., 308.  “If all four criteria are satisfied, the action is deemed to be against the state.”   (Internal quotation marks omitted.)   Newell v. Welsh, Superior Court, judicial district of Litchfield, Docket No. CV 10 5007267 (June 1, 2011, Roche, J.).   “[T]he identities of the parties are determined by their description in the summons ․ The court may also look to the complaint and the plaintiff's arguments in determining whether the plaintiff's claim is brought against [the defendants] in [their] individual or official capacit[ies].”  (Citation omitted;  internal quotation marks omitted.)   Allstate Insurance Co. v. State, Superior Court, judicial district of New London, Docket No. CV 10 6004056 (November 12, 2010, Martin, J.) [51 Conn. L. Rptr. 83].

In the present case, the plaintiff's claims have been brought against the defendants in their official capacities.   First, each of the named defendants are department of corrections employees who committed the alleged acts while in the scope of the employment.   Cf. Guimond v. Supina, Superior Court, judicial district of Stamford, Docket No. CV 11 5013583 (September 1, 2011, Taggart, J.T.R.) (finding the first element met where the plaintiff “sued two state employees regarding their allegedly improper acts committed while in the scope of their employment at the department of motor vehicles, a state agency”).   Second, the plaintiff's suit concerns matters over which the officials represent the state, namely, strip searches conducted at Corrigan upon admission and return from court proceedings.   Third, the state is the real party against whom relief is sought, as the plaintiff seeks damages and injunctive relief for injuries allegedly caused by the defendants for performing acts that are part of their official duties, including the failure to adhere to A.D. 6.7.   See Kenney v. Weaving, 123 Conn.App. 211, 216–17, 1 A.3d 1083 (2010), cert. denied, 299 Conn. 929, 12 A.3d 569 (2011).   Lastly, the judgment would operate to control the activities of the state or subject it to liability, as it would potentially change the way strip searches are conducted and force the defendants to comply with their own directive.

Because the defendants are being sued in their official capacities with respect to the alleged unconstitutional strip searches conducted at Corrigan, sovereign immunity is implicated.  “[T]he sovereign immunity enjoyed by the state[, however,] is not absolute.   There are [three] exceptions:  (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity ․ (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights ․ and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority.”  (Internal quotation marks omitted.)  Paragon Construction Co. v. Dept. of Public Works, 130 Conn.App. 211, 221–22, 23 A.3d 732 (2011).

As to the first exception, “[i]n the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so ․ General Statutes § 4–160(a) provides:  ‘When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.’   When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim ․ This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the [claims] commissioner or other statutory provisions.”  (Citation omitted;  internal quotation marks omitted.)  Perrone v. State, 122 Conn.App. 391, 395, 988 A.2d 256 (2010).

In the present case, there has been no statutory waiver of sovereign immunity and the claims commissioner has not authorized this suit.   Thus, sovereign immunity bars the plaintiff's action with respect to his claim for monetary damages.   Accordingly, the defendants' motion for summary judgment as to the plaintiff's claim for monetary damages on counts one and two is granted.

A.2.

The second exception to sovereign immunity applies to claims for injunctive or declaratory relief.⁶  “[T]he second exception permits a plaintiff to bring an action for declaratory or injunctive relief based on a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights ․ In order to sufficiently raise such a claim, the allegations of the complaint and the facts in issue must clearly demonstrate an incursion upon constitutionally protected interests.”  (Internal quotation marks omitted.)  Markley v. Dept. of Public Utility Control, supra, 301 Conn. 67–68.   Thus, the court must determine whether the allegations in the plaintiff's complaint frame a substantial claim that the officers at Corrigan violated his constitutional rights.

In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the United States Supreme Court articulated several guiding principles in evaluating constitutional claims made by prison inmates.  “First, we have held that convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison ․ [P]retrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners.   But our cases also have insisted on a second proposition:  simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations.   Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system ․ The fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights ․ There must be a mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.”  (Citations omitted;  internal quotation marks omitted.)  Id., 545–46.

Additionally, the Court stated that “maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees ․ [C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves ․ Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry.   Accordingly, we have held that even when an institutional restriction infringes a specific constitutional guarantee ․ the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security ․ Finally ․ the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions.   Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security ․ Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.”  (Citations omitted;  internal quotation marks omitted.)  Id., 546–48.⁷

The Court went on to state that the fourth amendment only prohibits unreasonable searches,⁸ and “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.   In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.   Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.”   (Emphasis added.)  Id., 559;  see also State v. Jenkins, 82 Conn.App. 111, 124, 842 A.2d 1148 (2004).  “Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates,” the court concluded that visual body-cavity inspections could be conducted “on less than probable cause.”  Bell v. Wolfish, supra, 560.

Although no Connecticut decisions have directly addressed the constitutionality of strip searches conducted in groups or in the presence of numerous onlookers, courts in other jurisdictions, applying Bell, have found such searches unconstitutional in certain contexts.   For example, in Lopez v. Youngblood, 609 F.Sup.2d 1125, 1133–39 (E.D.Cal.2009), modified, United States District Court, Docket No. 1:07cv0474 (E.D.Cal. July 14, 2009) (2009 U.S. Dist. LEXIS 63944), the court, applying the Bell balancing test, held that “the blanket policy of strip searching detainees in groups violates the Fourth Amendment.”   The court stated that “[a]lthough Defendants have made general assertions regarding limited space and limited staffing as precluding individualized searches, Defendants made no apparent efforts to conduct individualized searches or to preserve the privacy of the individuals during searches ․ Defendants' arguments regarding lack of adequate resources and limited space fall within the category of administrative burden and inconvenience.   Plaintiffs properly discount these arguments as not providing a basis to permit constitutional violations ․ Defendants proffered no evidence of lack of available alternatives or the preclusion of officer safety ․” (Citations omitted.)  Id., 1136–37.

Lopez distinguished two other cases involving group strip searches, Fernandez v. Rapone, 926 F.Sup. 255 (D.Mass.1996), and Zunker v. Bertrand, 798 F.Sup. 1365 (E.D.Wis.1992).   In Fernandez, the court held that manner in which the group searches ⁹ were conducted was reasonable, as “the fact that the plaintiffs were often searched in the presence of other inmates being searched does not render the searches unreasonable.   A person's expectation of privacy is unquestionably diminished when he is incarcerated.”   Fernandez v. Rapone, supra, 926 F.Sup. 262.   The court noted that “standing naked within the possible view of other inmates for a brief period of time is hardly shocking or unreasonable in light of the vital security interest [the searches seek] to preserve against the backdrop of day to day prison life.”   Id. Lopez distinguished Fernandez due to the fact that “[i]n Fernandez, it was the policy and practice for an officer to comply with an inmate's request to be searched alone.   Here, there is no evidence of such a policy and/or practice.”  Lopez v. Youngbloo d, supra, 609 F.Sup.2d 1135;  Fernandez v. Rapone, supra, 926 F.Sup. 262.

In Zunker v. Bertrand, supra, 798 F.Sup. 1368–70, the court considered whether strip searches conducted in booths, without curtains, with the officer standing in front of the inmate being searched was reasonable.   The court stated:  “Under the circumstances of this case, defendant took additional steps to try to protect the privacy of inmates who were subjected to strip searches.   Defendant did not install privacy curtains at the outset because he believed they would impede the officer's view of the inmate being searched and thereby allow inmates to hide contraband.   These concerns were legitimate ․ As defendant recognizes, it is preferable to conduct strip searches in a way that protects the privacy of the inmates as much as possible.   The court cannot conclude however, that plaintiff's privacy interest in not having other inmates view the strip searches outweighed the security interests of the prison in this case.”  Id., 1369–70.  Lopez distinguished Zunker by stating that “[i]n Zunker, the searches at issue were conducted in booths and inmates were blocked from the view of other inmates by the officer conducting the search.   Here, however, there is no evidence of booths or any other efforts undertaken to protect privacy rights.”  Lopez v. Youngblood, supra, 609 F.Sup.2d 1135;  Zunker v. Bertrand, supra, 798 F.Sup. 1368–70.

Several other cases have addressed the constitutionality of group strip searches.   See, e.g., Elliott v. Lynn, 38 F.3d 188, 191–92 (5th Cir.1994), cert. denied, 514 U.S. 1117, 115 S.Ct. 1976, 131 L.Ed.2d 865 (1995) (emergency situation created by increased prison violence justified immediate strip search of large number of inmates in groups;  individualized searches would have been defeated the purpose of swift institution-wide shakedown);  Franklin v. Lockhart, 883 F.2d 654, 656–57 (8th Cir.1989) (manner and place in which the searches were conducted did not violate the fourth amendment, as “legitimate security concerns” justified the searches, and “the record does not support a finding that a less public means of searching exists that would not compromise those security concerns”);  Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir.1988) (“[w]hile we encourage ․ less public searches when security considerations allow, we will not question [the state prison system's] judgment that conditions in [the prison] reasonably require searches outside the prisoners' cells in order to protect the safety of the officers conducting them”); ¹⁰  Jones v. Edwards, 770 F.2d 739, 742 (8th Cir.1985) (“jail officials should take precautions to insure that the detainee's privacy is protected from exposure to others unconnected to the search”);  Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982) (“[w]e think that, as a matter of law, no police officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity—whether or not any actually viewed the search—is a constitutionally valid governmental invasion of [the] personal rights that [such a] search entails” [internal quotation marks omitted] );  Hammond v. Dept. of Public Safety, United States District Court, Docket No. 09 00596 (D.Hawaii, December 14, 2011) (quick strip search in groups of four after inmate lost consciousness during basketball game reasonable “considering the need to quickly search for signs of a fight or retrieve weapons before any physical marks disappeared or weapons could be discarded”);  Craft v. San Bernardino, 468 F.Sup.2d 1172, 1176 (C.D.Cal.2006) (group strip searches unconstitutional, as the defendants “have taken no steps to conduct the searches on an individual basis and have instead continued to conduct the searches en masse without any attempt to limit the humiliation occasioned by conducting the searches in full view of dozens of other individuals”).   These cases stand for the proposition that corrections officials must have some reason for conducting non-private strip searches—e.g., security risks, officer safety, lack of adequate alternatives, temporal considerations—in order for such searches to be reasonable under the “manner” and “place” prongs of the Bell balancing test.

Additionally, A.D. 6.7,¹¹ which the parties agree is constitutionally valid, establishes certain guidelines that officers at Corrigan must abide by when conducting strip searches.   Under these guidelines, a “strip-search” is defined as “a visual body cavity search which includes a systematic visual inspection of an unclothed person's hair, body cavities ․ and genitalia.”   In a section entitled “Inmate Strip–Searches,” the directive provides, in relevant part:  “An inmate strip-search shall normally be conducted in an area out of view of individuals not involved in the search process.   All clothing and items in the inmate's possession shall be examined.   Reasonable accommodations shall be made to provide for same gender strip searches.   When such accommodation cannot be made and a strip-search is deemed to be essential without delay, then a cross gender strip-search shall be conducted.   All cross gender strip-searches shall be reported ․”

Based on the foregoing, the plaintiff's claim that he was unconstitutionally strip searched falls within the second exception to the doctrine of sovereign immunity, as his allegations are based on a substantial claim that the officers violated his fourth amendment rights.   Strip searches conducted in front of groups of individuals not involved in the search without any explanation or justification for such a public search may be unconstitutional under Bell. Further, such searches may be in conflict with the guidelines set forth in A.D. 6.7, which requires that such searches “normally” be conducted privately.   Accordingly, the defendants' motion for summary judgment as to counts one and two of the complaint based on sovereign immunity is denied.

As to the plaintiff's motion for partial summary judgment, there remain issues of fact as to whether the defendants are following the policy set forth in A.D. 6.7.   In his affidavit, the plaintiff states that the strip searches were “performed in the presence and/or view of numerous persons not involved in the search process and at times, members of the opposite gender ․ [U]pon admittance to [Corrigan] I was forced to undergo a strip search and shower along with an estimated seven (7) other persons while 2 officers conducted the searches and 2 different officers were in the property window along with 2 inmate workers, all of whom viewed this process ․ [W]hen returning from court appearances I was made to stand, alongside as many as 5–6 inmates at a time, in front of the window to a ‘BullPen’ or holding tank and forced to undergo a strip body cavity search ․ [T]he bullpen contained an average of 25–35 other persons who clearly viewed the strip search process.”   Additionally, the affidavits submitted by numerous other inmates state that as many as thirty-five individuals not involved in the strip search process were in a position to view the searches.¹²

In their brief, the defendants maintain that strip searches are normally conducted out of view of those not involved in the search, and that the plaintiff's allegation that the searches are conducted in front of 25–35 other inmates is incorrect.   The defendants have submitted an affidavit of Warden Scott Erfe, in which he states the following:  “An inmate strip-search is normally ․ conducted in an area out of view of individuals not involved in the search process and shall not normally require physical contact by staff ․ Inmates entering or exiting [Corrigan] are normally strip-searched in an area located behind another area known as the holding tank ․ When an inmate is strip-searched in this area, a correctional officer stands in front of the inmate in order to give the inmate additional privacy.   The inmate cannot be seen by anyone other than the officer standing directly behind him.   The officer stands there while the inmate disrobes ․ Inmates are not strip-searched in front of 25–35 other inmates.   Strip-searches are conducted in a manner so as to afford the inmate privacy to the extent possible.”   Accordingly, because issues of fact remain regarding the manner in which the strip searches were conducted, the plaintiff's motion for summary judgment is denied.¹³

CONCLUSION

For the foregoing reasons, the defendants' partial motion for summary judgment is granted as to the plaintiff's claims for monetary damages and is denied as to the plaintiff's claims for injunctive relief.   Additionally, the plaintiff's motion for partial summary judgment is denied, as there remain issues of fact.

Cosgrove, J.

FOOTNOTES

FN1. Although the plaintiff's complaint attempts to state claims of “similarly situated persons,” the plaintiff has not complied with the necessary prerequisites to bringing a class action suit set forth in Practice Book §§ 9–7, 9–8 and 9–9.   See generally Neighborhood Builders, Inc. v. Madison, 294 Conn. 651, 658, 986 A.2d 278 (2010).   Even if the plaintiff had met these requirements, he could not represent the interests of other inmates.   See General Statutes § 51–88 (“[a] person who has not been admitted as an attorney under the provisions of section 51–80 shall not ․ [p]ractice law or appear as an attorney-at-law for another, in any court of record in this state”)..  FN1. Although the plaintiff's complaint attempts to state claims of “similarly situated persons,” the plaintiff has not complied with the necessary prerequisites to bringing a class action suit set forth in Practice Book §§ 9–7, 9–8 and 9–9.   See generally Neighborhood Builders, Inc. v. Madison, 294 Conn. 651, 658, 986 A.2d 278 (2010).   Even if the plaintiff had met these requirements, he could not represent the interests of other inmates.   See General Statutes § 51–88 (“[a] person who has not been admitted as an attorney under the provisions of section 51–80 shall not ․ [p]ractice law or appear as an attorney-at-law for another, in any court of record in this state”).

FN2. The named defendants are Brian Murphy, Anthony Colletti, Lieutenants Meyers, Ploscynski, Kmetz, Williams and Brehler, Correction Officers Peck, Iozio, Leszniewski, Johnson, Delaney, Cronin, Wales, Holmes, Fulcher, Brehler, DiLoreto, Schwegoffer, Lonton and Perkins, and James Smith.   On April 16, 2010, James Smith, Claims Commissioner of the State of Connecticut, filed a motion to dismiss, which was granted by this court.   Harnage v. Murphy, Superior Court, judicial district of New London, Docket No. CV 10 5013961 (June 7, 2011, Cosgrove, J.)..  FN2. The named defendants are Brian Murphy, Anthony Colletti, Lieutenants Meyers, Ploscynski, Kmetz, Williams and Brehler, Correction Officers Peck, Iozio, Leszniewski, Johnson, Delaney, Cronin, Wales, Holmes, Fulcher, Brehler, DiLoreto, Schwegoffer, Lonton and Perkins, and James Smith.   On April 16, 2010, James Smith, Claims Commissioner of the State of Connecticut, filed a motion to dismiss, which was granted by this court.   Harnage v. Murphy, Superior Court, judicial district of New London, Docket No. CV 10 5013961 (June 7, 2011, Cosgrove, J.).

FN3. In this memorandum, CCI and Corrigan–Radgowski Correctional Center will collectively be referred to as “Corrigan.”.  FN3. In this memorandum, CCI and Corrigan–Radgowski Correctional Center will collectively be referred to as “Corrigan.”

FN4. Throughout the complaint the self-represented plaintiff refers to corrections officers as “municipal” employees.   As all defendants are represented by the Attorney General's Office, the court assumes all individual defendants are or were state employees..  FN4. Throughout the complaint the self-represented plaintiff refers to corrections officers as “municipal” employees.   As all defendants are represented by the Attorney General's Office, the court assumes all individual defendants are or were state employees.

FN5. Because the parties have not briefed counts three through seven, the court will not address the merits of those counts..  FN5. Because the parties have not briefed counts three through seven, the court will not address the merits of those counts.

FN6. The defendants argue that the plaintiff's claims for injunctive relief are moot, as he is no longer housed at Corrigan.  “The mootness doctrine does not preclude a court from addressing an issue that is ‘capable of repetition, yet evading review.’  “ (Internal quotation marks omitted.)  Patterson v. Commissioner of Correction, 112 Conn.App. 826, 835, 964 A.2d 1234 (2009).  “Our cases reveal that for 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.”  Loisel v. Rowe, 233 Conn. 370, 382–83, 660 A.2d 323 (1995).Here, the plaintiff's claims fall within this exception.   First, the allegedly unconstitutional searches are of a limited duration, as they are only conducted upon admission to Corrigan and when inmates return from court proceedings.   To avoid suits challenging the procedure, the defendants could simply transfer inmates serving long sentences to other prisons within the state, rendering any claim by a transferred inmate moot.   Second, because the plaintiff is a convicted felon who still has many years to serve, there is a reasonable possibility that he could be transferred back to Corrigan at some point during his sentence.   Finally, the conditions at Corrigan and the treatment of prisoners are matters of public importance.   Cf. Scott v. Lantz, Superior Court, judicial district of New Haven, Docket No. CV 08 4028950 (July 30, 2008, Silbert, J.) [46 Conn. L. Rptr. 19]..  FN6. The defendants argue that the plaintiff's claims for injunctive relief are moot, as he is no longer housed at Corrigan.  “The mootness doctrine does not preclude a court from addressing an issue that is ‘capable of repetition, yet evading review.’  “ (Internal quotation marks omitted.)  Patterson v. Commissioner of Correction, 112 Conn.App. 826, 835, 964 A.2d 1234 (2009).  “Our cases reveal that for 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.”  Loisel v. Rowe, 233 Conn. 370, 382–83, 660 A.2d 323 (1995).Here, the plaintiff's claims fall within this exception.   First, the allegedly unconstitutional searches are of a limited duration, as they are only conducted upon admission to Corrigan and when inmates return from court proceedings.   To avoid suits challenging the procedure, the defendants could simply transfer inmates serving long sentences to other prisons within the state, rendering any claim by a transferred inmate moot.   Second, because the plaintiff is a convicted felon who still has many years to serve, there is a reasonable possibility that he could be transferred back to Corrigan at some point during his sentence.   Finally, the conditions at Corrigan and the treatment of prisoners are matters of public importance.   Cf. Scott v. Lantz, Superior Court, judicial district of New Haven, Docket No. CV 08 4028950 (July 30, 2008, Silbert, J.) [46 Conn. L. Rptr. 19].

FN7. Moreover, the United States Supreme Court has noted that the “wide-ranging deference” given to prison administrators is rooted in separation of powers concerns.  “Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.   Prison administration is ․ a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.”  Turner v. Safley, 482 U.S. 78, 84–85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)..  FN7. Moreover, the United States Supreme Court has noted that the “wide-ranging deference” given to prison administrators is rooted in separation of powers concerns.  “Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.   Prison administration is ․ a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.”  Turner v. Safley, 482 U.S. 78, 84–85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

FN8. It should be noted that in Bell the Court “assum[ed] ․ that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility ․” Bell v. Wolfish, supra, 441 U.S. 558.  “Whether a prisoner has any Fourth Amendment protection of his person after Hudson v. Palmer, [468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984),] is not entirely clear.   [However,] Hudson merely concluded that the Fourth Amendment affords no protection for the prisoner's privacy interest in his cell or his possessory interest in his effects kept there, and thus arguably has no application to searches and seizures of the person of a prisoner ․” 5 W. LaFave, Search and Seizure (4th Ed.2004) § 10.9(b), p. 416;  see Hudson v. Palmer, supra, 526 (“the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell ” [emphasis added] )..  FN8. It should be noted that in Bell the Court “assum[ed] ․ that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility ․” Bell v. Wolfish, supra, 441 U.S. 558.  “Whether a prisoner has any Fourth Amendment protection of his person after Hudson v. Palmer, [468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984),] is not entirely clear.   [However,] Hudson merely concluded that the Fourth Amendment affords no protection for the prisoner's privacy interest in his cell or his possessory interest in his effects kept there, and thus arguably has no application to searches and seizures of the person of a prisoner ․” 5 W. LaFave, Search and Seizure (4th Ed.2004) § 10.9(b), p. 416;  see Hudson v. Palmer, supra, 526 (“the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell ” [emphasis added] ).

FN9. The searches involved in Fernandez were described by the court:  “When the searches were conducted ․ the plaintiffs often were searched in groups, i.e., in the vicinity of one or more fellow inmates who had also received visitors and were to be searched ․ [T]he Complaint alleges that prisoners were searched in groups of as many as seven to ten inmates by three to five officers.   In an affidavit, lead plaintiff Fernandez suggested that the number of inmates searched at one time has ranged as high as thirty, with an average of between six and ten prisoners being searched by two or three guards.”  Fernandez v. Rapone, supra, 926 F.Sup. 258..  FN9. The searches involved in Fernandez were described by the court:  “When the searches were conducted ․ the plaintiffs often were searched in groups, i.e., in the vicinity of one or more fellow inmates who had also received visitors and were to be searched ․ [T]he Complaint alleges that prisoners were searched in groups of as many as seven to ten inmates by three to five officers.   In an affidavit, lead plaintiff Fernandez suggested that the number of inmates searched at one time has ranged as high as thirty, with an average of between six and ten prisoners being searched by two or three guards.”  Fernandez v. Rapone, supra, 926 F.Sup. 258.

FN10. In addition to applying the Bell balancing test, Michenfelder also applied the test set forth in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), which held that “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”   See Michenfelder v. Sumner, supra, 860 F.2d 331–34.  Turner set forth four factors to use when making this determination:  (1) whether there is a “ ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it,” (2) “whether there are alternative means of exercising the right that remain open to prison inmates,” (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally,” and (4) “the absence of ready alternatives.”  Turner v. Safley, supra, 89–90.   Although there has been some confusion as to which test is appropriate in the context of strip searches;  see generally D. MacGregor, “Stripped of All Reason?   The Appropriate Standard for Evaluating Strip Searches of Arrestees and Pretrial Detainees in Correctional Facilities,” 36 Colum.   J.L. & Soc. Probs. 163 (2003);  most courts apply the more specific Bell test.   See, e.g., Powell v. Barrett, 541 F.3d 1298, 1302 (11th Cir.2008) (en banc) (applying the “more strip search-specific Fourth Amendment analysis that the Supreme Court used in Bell ” over the test “for prison regulations in general that was announced in Turner ”);  State v. Jenkins, supra, 82 Conn.App. 124..  FN10. In addition to applying the Bell balancing test, Michenfelder also applied the test set forth in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), which held that “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”   See Michenfelder v. Sumner, supra, 860 F.2d 331–34.  Turner set forth four factors to use when making this determination:  (1) whether there is a “ ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it,” (2) “whether there are alternative means of exercising the right that remain open to prison inmates,” (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally,” and (4) “the absence of ready alternatives.”  Turner v. Safley, supra, 89–90.   Although there has been some confusion as to which test is appropriate in the context of strip searches;  see generally D. MacGregor, “Stripped of All Reason?   The Appropriate Standard for Evaluating Strip Searches of Arrestees and Pretrial Detainees in Correctional Facilities,” 36 Colum.   J.L. & Soc. Probs. 163 (2003);  most courts apply the more specific Bell test.   See, e.g., Powell v. Barrett, 541 F.3d 1298, 1302 (11th Cir.2008) (en banc) (applying the “more strip search-specific Fourth Amendment analysis that the Supreme Court used in Bell ” over the test “for prison regulations in general that was announced in Turner ”);  State v. Jenkins, supra, 82 Conn.App. 124.

FN11. The defendants have submitted as evidence two versions of A.D. 6.7—one that was effective as of June 1, 2006, and one that was effective as of January 31, 2009.   In his complaint, the plaintiff alleges that he was housed at Corrigan beginning “[o]n or about June 2008.”   The court will therefore refer to the provisions of the former directive.   It should be noted, however, that the provisions relevant to the present motions did not change significantly in the updated directive..  FN11. The defendants have submitted as evidence two versions of A.D. 6.7—one that was effective as of June 1, 2006, and one that was effective as of January 31, 2009.   In his complaint, the plaintiff alleges that he was housed at Corrigan beginning “[o]n or about June 2008.”   The court will therefore refer to the provisions of the former directive.   It should be noted, however, that the provisions relevant to the present motions did not change significantly in the updated directive.

FN12. While the affidavits submitted by these inmates are not relevant for the purposes of any claims asserted on their own behalf, they can be considered in the plaintiff's attempt to show that the officers did not adhere to A.D. 6.7..  FN12. While the affidavits submitted by these inmates are not relevant for the purposes of any claims asserted on their own behalf, they can be considered in the plaintiff's attempt to show that the officers did not adhere to A.D. 6.7.

FN13. The court notes, however, that the plaintiff's claims regarding the “reasonable suspicion” requirement of A.D. 6.7 are without merit.   When the alleged searches were performed on the plaintiff, who is the only inmate at Corrigan relevant for the purposes of this case;  see footnote 1;  he was a pretrial detainee held on felony charges.   Under A.D. 6.7, which the plaintiff agrees is constitutional, reasonable suspicion is not required in order to conduct strip searches on inmates being held for felony offenses.   Thus, the officers clearly had the requisite justification for strip searching the plaintiff..  FN13. The court notes, however, that the plaintiff's claims regarding the “reasonable suspicion” requirement of A.D. 6.7 are without merit.   When the alleged searches were performed on the plaintiff, who is the only inmate at Corrigan relevant for the purposes of this case;  see footnote 1;  he was a pretrial detainee held on felony charges.   Under A.D. 6.7, which the plaintiff agrees is constitutional, reasonable suspicion is not required in order to conduct strip searches on inmates being held for felony offenses.   Thus, the officers clearly had the requisite justification for strip searching the plaintiff.

Cosgrove, Emmet L., J.