Percy Lobaton v. Scott Erfe et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE COMPLAINT

The plaintiff's complaint, dated November 8, 2012, alleges violations of his civil rights by three Connecticut Department of Correction officers, Warden Scott Erfe and Lieutenants Pluszinski and Mayers, at Corrigan Correctional Institution, also known as the Corrigan–Radgowski Correctional Center, in Montville, Connecticut (CCI).¹  The complaint alleges violations of civil rights ² and seeks relief under 42 U.S.C. § 1983.³  The defendants have moved to strike the complaint.

FACTS

Most of the allegations of the complaint are conclusions of law, which are not taken as true for present purposes.   See Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   Taking the factual allegations as true and in their best light for the plaintiff;  see Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011);  the plaintiff alleges as follows.⁴  The plaintiff is a resident of Connecticut.   While employed by the Connecticut Department of Correction at CCI, the defendants opened and read the plaintiff's “legal mail” outside his presence.   In addition, on more than two occasions, an unidentified officer provoked the plaintiff “with ‘F’ sized words” and threatened him “as a consequence of the plaintiff's previous complaints of mold on showers and dirty water off fountain water dispensers and/or cell faucets.”   The defendants “all devised a scheme with the intention to deprive the plaintiff of his rights secured to him by the Constitution and laws ․” They also did not provide the plaintiff with the CCI inmate handbook.  “Throughout each issue, the plaintiff was threatened by each defendant.”   The defendants also “tried to obstruct the plaintiff's exhaustion of remedy process, by not answering the plaintiff's requests (complaints).”   The plaintiff claims that this conduct was committed by “each defendant and/or collectively or by direct participation or by knowledge and failing to remedy the situation,” and resulted in violations of the plaintiff's due process rights, Eighth Amendment right against cruel and unusual punishment, First Amendment rights, and right to equal protection of the law.⁵  The defendants assisted each other in carrying out the acts alleged by the plaintiff or failed to prevent each other from carrying out those acts.   The acts and omissions of the defendants were carried out under color of law, had no excuse, and were gratuitous, malicious, and unrelated to a Department of Correction officers' duties.

DISCUSSION

The purpose of a motion to strike is to contest the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted.   Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   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 plaintiff has stated a legally sufficient cause of action.  Coe v. Board of Education, supra, 301 Conn. 117.   In determining the legal sufficiency of the complaint, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.  Id., 116–17.   Moreover, what is necessarily implied in an allegation need not be expressly alleged, because pleadings must be construed broadly and realistically, rather than narrowly and technically.   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).   The court treats the alleged and implied facts as true and construes the complaint in the manner most favorable to sustaining its legal sufficiency.  Id., 252.   The motion to strike must be denied if any facts provable under the express and implied allegations in the complaint are sufficient to support a cause of action.  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   In ruling on a motion to strike, the court can only consider the grounds specified in the motion.  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).

In their motion, the defendants set forth three grounds for striking the plaintiff's entire complaint:  (1) the complaint fails to allege personal involvement of any of the named defendants;  (2) the plaintiff's allegations concerning interference with his legal mail are insufficient to support his § 1983 claim;  and (3) the plaintiff's allegations concerning “verbal harassment” are insufficient to support his § 1983 claim.⁶  The court shall address each of these arguments in turn.

The defendants first argue that the plaintiff fails to allege personal involvement of any of the named defendants.   To the contrary, the plaintiff expressly alleges that the defendants acted in concert to carry out the activities described in the complaint, either through direct participation or knowingly failing to prevent and remedy the situation.   The defendants are correct that the plaintiff has failed to specify which defendant was responsible for each individual act described in the complaint;  however, the appropriate procedural vehicle to seek such clarification would have been a request to revise, not a motion to strike.   See Practice Book § 10–35.   Construed in favor of the plaintiff, the complaint is legally sufficient as to each defendant.   Therefore, the defendants' motion to strike cannot be granted on this ground.

The defendants' next argument is that the plaintiff's allegations regarding the defendants reading his legal mail are not legally sufficient to support his § 1983 claim.   Specifically, the defendants contend that the plaintiff has only pleaded a single occurrence of the defendants reading his legal mail, and a single occurrence is not enough to establish a constitutional violation.  “To state a valid claim under § 1983, a plaintiff must establish:  ‘(1) [that] the conduct complained of was committed by a person acting under color of state law;  and (2) [that] this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.’  Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).”  ATC Partnership v. Windham, 251 Conn. 597, 604, 741 A.2d 305 (1999), cert. denied, 530 U.S. 1214, 120 S.Ct. 2217, 147 L.Ed.2d 249 (2000).   The defendants' argument here does not challenge the plaintiff's pleading of the first element of a § 1983 action;  rather, in essence, it asserts that the plaintiff has not sufficiently pleaded the second element.

The standard for alleging a § 1983 claim based on interference with legal mail is outlined in Davis v. Goord, 320 F.3d 346 (2d Cir.2003).   “Interference with legal mail implicates a prison inmate's rights to access to the courts and free speech as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution.   To state a claim for denial of access to the courts—in this case due to interference with legal mail—a plaintiff must allege that the defendant took or was responsible for actions that hindered [a plaintiff's] efforts to pursue a legal claim ․ In addition to the right of access to the courts, a prisoner's right to the free flow of incoming and outgoing mail is protected by the First Amendment ․ [C]ourts have consistently afforded greater protection to legal mail than to non-legal mail ․ [and] a prisoner has a right to be present when his legal mail is opened ․” (Citations omitted;  internal quotation marks omitted.)  Id., 351.   Nevertheless, an isolated incident of mail tampering is usually insufficient to establish a constitutional violation—instead, with certain limited exceptions, the inmate must show that prison officials regularly and unjustifiably interfered with his incoming legal mail.  Id.

The court does not read the plaintiff's complaint to allege only a single occurrence of reading his legal mail outside of his presence.   The complaint states that “[t]he defendants and each of them, while duly employed by the state of Connecticut ․ opened and read the plaintiff's legal mail, outside his presence.”   This allegation could be read to refer to either a single occurrence or multiple, even continuous, occurrences.   This dual interpretation arises, in part, because “mail” has an identical singular and collective form.   The court is required to construe the complaint broadly and in the manner most favorable to sustaining its legal sufficiency.   This principle is particularly applicable here, where the complaint was apparently drafted by a self-represented party.   Connecticut courts are solicitous of self-represented litigants and strive to ensure that they receive a full and fair opportunity to be heard.  Orcutt v. Commissioner of Correction, 284 Conn. 724, 740 n.26, 937 A.2d 656 (2007).   Their pleadings are construed liberally.  Kaddah v. Commissioner of Correction, 299 Conn. 129, 140, 7 A.3d 911 (2010).

In this light, the court must construe the complaint to allege multiple occurrences of reading the plaintiff's legal mail outside of his presence.   From that, in turn, and from the allegation that this was a scheme devised by all the defendants, the court infers an allegation of a practice by the defendants, not mere isolated incidents.   While this construction of the complaint may prove difficult for the plaintiff to prove, the court must adopt it for purposes of ruling on this motion.   The allegation that the defendants made it a practice of reading the plaintiff's legal mail outside his presence is sufficient to allege an interference with legal mail that rises to the level of a constitutional violation, pursuant to the standard articulated in Davis v. Goord, supra.   An actual injury from this violation, even if not expressly alleged, can be inferred when the practice is ongoing rather than isolated, because the implication of an actionable violation becomes obvious on its face.   See id.   Accordingly, the plaintiff has sufficiently pleaded the requisite elements of a § 1983 claim based on interference with his legal mail.   The motion to strike with respect to this ground is denied.

Because the defendants move to strike the entire complaint and the court has determined that the § 1983 claim is supported by the allegations regarding the interference with legal mail, the court need not address the defendants' argument that the complaint should be stricken because the allegations of officers swearing at him and threatening him are only “verbal harassment” and, due to the absence of an “actual injury,” insufficient to support his § 1983 claim.⁷  When a defendant moves to strike a complaint in its entirety, the motion must fail if any of the plaintiff's claims is legally sufficient.   Czajkowski v. Snookers Billiards, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–06–5000754–S (September 18, 2006, Stevens, J.);   see also Water Commissioners v. Robbins, 82 Conn. 623, 633, 74 A. 938 (1910) (plaintiff's demurrer to special defense and counterclaim in their entirety was properly overruled because none of the grounds applied to all of either pleading).   This principle holds true even where portions of the complaint may prove problematic for the plaintiff to prove at trial.

The defendants' motion to strike is denied for the foregoing reasons.

Cole–Chu, J.

FOOTNOTES

FN1. The first names of Pluszinski and Mayers are not provided in the summons, complaint or return of service..  FN1. The first names of Pluszinski and Mayers are not provided in the summons, complaint or return of service.

FN2. The plaintiff is representing himself.   Not counting the statement of relief sought, the complaint contains nine paragraphs of allegations, each an enumerated “count” incorporating all the preceding paragraphs.   Essentially, taken together, the complaint alleges one count for violation of the plaintiff's civil rights.   The interpretation of pleadings is a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005)..  FN2. The plaintiff is representing himself.   Not counting the statement of relief sought, the complaint contains nine paragraphs of allegations, each an enumerated “count” incorporating all the preceding paragraphs.   Essentially, taken together, the complaint alleges one count for violation of the plaintiff's civil rights.   The interpretation of pleadings is a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

FN3. Section 1983 of title 42 of the United States Code, entitled “Civil action for deprivation of rights,” provides:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.   For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”.  FN3. Section 1983 of title 42 of the United States Code, entitled “Civil action for deprivation of rights,” provides:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.   For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

FN4. That the plaintiff is an inmate at CCI is not alleged but is inferred from the circumstances..  FN4. That the plaintiff is an inmate at CCI is not alleged but is inferred from the circumstances.

FN5. The complaint states that “Annexed Reports” show why the defendants' acts constituted due process violations but no report is annexed to the complaint..  FN5. The complaint states that “Annexed Reports” show why the defendants' acts constituted due process violations but no report is annexed to the complaint.

FN6. The defendants also argue that “[i]n addition to his claim for monetary damages, the plaintiff has also made a demand for preliminary injunctive relief' and “the plaintiff's request for preliminary injunctive relief should be denied.”   First, the plaintiff only requested a permanent injunction in his prayer for relief.   He later filed a “Petition for a Restraining Order.”   However, he has not claimed that petition for consideration by the court.   The motion to strike does not appropriately challenge that petition since it is not part of the complaint.   The defendants' motion with respect to this ground is denied, without prejudice as to consideration at the appropriate time.   Second, assuming the defendants meant to challenge the permanent injunction request in the complaint, that prayer for relief is legally sufficient.   The plaintiff's allegations regarding the defendants' ongoing practice of reading his legal mail outside his presence are sufficient to plead the requirements of irreparable harm without an adequate remedy at law.   See Brennan v. Brennan Associates, 293 Conn. 60, 86, 977 A.2d 107 (2009) (permanent injunction standard)..  FN6. The defendants also argue that “[i]n addition to his claim for monetary damages, the plaintiff has also made a demand for preliminary injunctive relief' and “the plaintiff's request for preliminary injunctive relief should be denied.”   First, the plaintiff only requested a permanent injunction in his prayer for relief.   He later filed a “Petition for a Restraining Order.”   However, he has not claimed that petition for consideration by the court.   The motion to strike does not appropriately challenge that petition since it is not part of the complaint.   The defendants' motion with respect to this ground is denied, without prejudice as to consideration at the appropriate time.   Second, assuming the defendants meant to challenge the permanent injunction request in the complaint, that prayer for relief is legally sufficient.   The plaintiff's allegations regarding the defendants' ongoing practice of reading his legal mail outside his presence are sufficient to plead the requirements of irreparable harm without an adequate remedy at law.   See Brennan v. Brennan Associates, 293 Conn. 60, 86, 977 A.2d 107 (2009) (permanent injunction standard).

FN7. The defendants do appear to misinterpret the plaintiff's complaint.   The complaint goes beyond allegations of mere verbal harassment.   Viewed in favor of its legal sufficiency, the complaint alleges that the defendants swore at him and threatened him in retaliation for complaints he made about the facility.   Such conduct with such motive can support a first amendment violation.   See Davis v. Goord, supra, 320 F.3d 352–54 (law on retaliation claims)..  FN7. The defendants do appear to misinterpret the plaintiff's complaint.   The complaint goes beyond allegations of mere verbal harassment.   Viewed in favor of its legal sufficiency, the complaint alleges that the defendants swore at him and threatened him in retaliation for complaints he made about the facility.   Such conduct with such motive can support a first amendment violation.   See Davis v. Goord, supra, 320 F.3d 352–54 (law on retaliation claims).

Cole–Chu, Leeland J., J.