James Harnage v. Sydney Schulman et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 103)

FACTS

On February 10, 2012, the defendant, the Department of Correction (department), moved to dismiss this action on the ground that it is barred by sovereign immunity as it is an action for monetary damages against the state.   The self-represented plaintiff, James Harnage, filed his objection and memorandum of law in opposition on February 23, 2012, on the ground that he is only seeking injunctive relief against the department.   The court heard argument on the motion on August 30, 2013.

On January 17, 2012, the plaintiff ¹ filed a six-count complaint against Sydney Schulman, Schulman & Associates, Inmates Legal Assistance Program, Jessica York, and the department.²  In the complaint, the plaintiff alleges that he is incarcerated and in the custody of the department on criminal charges.   While in custody of the department, the plaintiff alleges that he was involved in divorce proceedings, child custody and visitation disputes, and termination of parental rights proceedings.   The plaintiff alleges that the department has interfered with his right to access the courts because it has repeatedly denied him access to the library, the materials available in the library at Corrigan Correctional Institute are inadequate, and his time is limited in the library.   The plaintiff alleges that the library personnel informed him that they did not have to provide a law library because the state has chosen to meet its constitutional obligations by contracting for legal services.

Further, the plaintiff alleges that the department has implemented the Inmates Legal Assistance Program to attempt to meet its obligations for meaningful access to the courts.   The plaintiff alleges that the department contracted with Schulman, Schulman & Associates and York to provide legal services to inmates.   The plaintiff alleges that the contract discriminates based on gender because the contract provides for representation by counsel for female inmates in civil and family matters and denies such representation to male inmates.

The plaintiff alleges that he has suffered harm as a result of the department's actions because he was unprepared and unable to adequately protect his interests in his divorce, child custody and termination of parental rights proceedings.   He alleges that he has been deprived of all his personal and marital property, deprived of visitation with and custody of his children, and his parental rights have been terminated in addition to the accrual of excessive child support payments.

DISCUSSION

“[A] motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).

The court will address whether the plaintiff's claims against the department are barred by sovereign immunity.  “The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law.”  (Internal quotation marks omitted.)  Markley v. Dept. of Public Utility Control, 301 Conn. 56, 65, 23 A.3d 668 (2011).  “[T]he sovereign immunity enjoyed by the state 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.”  (Citations omitted;  internal quotation marks omitted.)   Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).

“Although in reviewing a motion to dismiss [the court] must construe the allegations of the complaint in the light most favorable to the plaintiff, to survive the defense of sovereign immunity the complaint must nevertheless allege sufficient facts to support a finding of unconstitutional or extrastatutory state action ․ In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper.”  (Citation omitted;  internal quotation marks omitted.)  Markley v. Dept. of Public Utility Control, supra, 301 Conn. 66.

A.

Claim for Monetary Damages

In the present case, the department argues that the action should be dismissed against it because the plaintiff is seeking monetary damages.   The plaintiff counters that he is seeking injunctive relief against the department and monetary damages from the other defendants in the action.   The plaintiff indicates in his memorandum of law that he is currently seeking authorization from the claims commissioner and that he intends to pursue monetary damages from the state in a separate action.

“In 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 ․ 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, 998 A.2d 256 (2010).

To the extent that the counts in the plaintiff's complaint directed at the department could be construed as seeking monetary damages, those claims for monetary damages are barred by sovereign immunity because there is no statutory waiver nor has the claims commissioner authorized suit.   The plaintiff has made it clear in his memorandum as well as at oral argument that he is not seeking monetary damages from the department, therefore, the court will address the other exceptions to sovereign immunity.

B.

Claims for Injunctive Relief

The second and third exceptions to the doctrine of sovereign immunity apply to claims for declaratory or injunctive relief.  “[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.”  (Emphasis in original;  internal quotation marks omitted.)  Markley v. Dept. of Public Utility Control, supra, 301 Conn. 67–68.  “For a claim under the third exception [to the doctrine of sovereign immunity], the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority;  they must also allege or otherwise establish facts that reasonably support those allegations.”  (Internal quotation marks omitted.)  Id., 72.

B.1

Access to Courts

With regard to his claims for injunctive relief, the plaintiff in the present case argues that the department has denied his constitutional right to access the courts through its denial of his access to the library, the minimal legal resources in the library, and its denial of his right to legal representation.   The department counters that the plaintiff must show that he will be irreparably harmed and that it must only provide access in cases related to his confinement.

“It is well established that prisoners have a constitutional right of access to the courts ․ [and that such access must be] adequate, effective and meaningful ․ Decisions of the United States Supreme Court have consistently required [s]tates to shoulder affirmative obligations to assure all prisoners meaningful access to the courts ․ Bounds [v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977),] does not [however] guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims.   The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.   Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration ․

“[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law ․ Such assistance, however, may take many forms ․ Practices or regulations are invalid under Bounds only if the prisoner is denied access to both legal assistance and legal materials ․ In addition, [i]nsofar as the right vindicated by Bounds is concerned, meaningful access to the courts is the touchstone ․ and the inmates therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Sadler v. Commissioner of Correction, 100 Conn.App. 659, 661–62, 918 A.2d 1033, cert. denied, 285 Conn. 901, 938 A.2d 593 (2007).  “In other words, a prisoner has no constitutional right of access to the courts to litigate an unrelated civil claim.  Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1160 (9th Cir.2003).  (Internal quotation marks omitted.)   Ruffin v. Arnone, Superior Court, judicial district of Tolland, Docket No. CV–12–5005610–S (July 12, 2013, Graham, J.) [56 Conn. L. Rptr. 490];  see also Smith v. Warden, Superior Court, judicial district of Tolland at Somers, Docket No. CV 0002198 (May 27, 1997, Bishop, J.) (no constitutionally protected right to use of law books).

In the present case, the plaintiff claims that his constitutional right of access to the courts was violated.   The plaintiff's alleged harm resulted, however, in his divorce and family matters.   These alleged harms were not suffered by the plaintiff in a matter related to challenging the condition of his confinement or his sentence.   Even construing these allegations in the light most favorable to the plaintiff, the plaintiff alleges that his access to the library was limited in duration and the materials were limited and that the assistance of the Inmate Legal Assistance Program was not sufficient.   The plaintiff does not allege that he did not have access to a law library or access to a person trained in the law;  the plaintiff has not alleged, therefore, a substantial claim that the department's conduct has violated his constitutional right of access to the courts.   Accordingly, those claims must be dismissed because they are barred by sovereign immunity.

B.2

Equal Protection

The plaintiff also argues that the department deprived him of his constitutional right to equal protection by entering into a contract with Schulman that discriminates on the basis of gender.   The plaintiff argues that he has the right to equal assistance in family and child matters as female inmates.   The department counters that the plaintiff has been able to get his papers to the courthouse doors and that the department is only obligated to provide access to courts to male inmates in matters of confinement not divorce or child arrearage cases.

“Article first, § 20, of the constitution of Connecticut as amended by articles five and twenty-one of the amendments, provides:  ‘No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of ․ sex ․’ As a general matter, [the Connecticut Supreme Court] has interpreted the state constitution's equal protection clause to have a like meaning and [to] impose similar constitutional limitations as the federal equal protection clause ․

“To prevail on an equal protection claim, a plaintiff first must establish that the state is affording different treatment to similarly situated groups of individuals.”  (Citations omitted;  internal quotation marks omitted.)   Markley v. Dept. of Public Utility Control, supra, 301 Conn. 68.   The court employs a heightened or intermediate scrutiny when reviewing government action challenged as affording individuals different treatment on the basis of gender.   See Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 160, 957 A.2d 407 (2008) (“Intermediate scrutiny typically is used to review laws that employ quasi-suspect classifications ․ such as gender ․”).

In the present case, the plaintiff has stated a substantial claim that the department's actions have violated his constitutional right to equal protection under the federal and state constitutions.   The department, through its contract with Schulman, is providing representation by counsel for female inmates in family and civil matters and is denying that same representation by counsel for male inmates.   Construing these allegations in the light most favorable to the plaintiff for the purposes of the motion to dismiss, these allegations amount to affording different treatment to similarly situated individuals, those who are incarcerated in one of the department's facilities with pending family matters, which is what a plaintiff must establish to prevail on an equal protection claim.   See Markley v. Dept. of Public Utility Control, supra, 301 Conn. 68.   Therefore, the plaintiff's claim for injunctive relief for violation of his right to equal protection falls within the second exception to sovereign immunity, and he has alleged a sufficient factual basis to support a finding of unconstitutional action.   Accordingly, the defendants' motion to dismiss must be denied as to this claim for injunctive relief.

CONCLUSION

For the foregoing reasons, the department's motion to dismiss is granted as to the plaintiff's claims for monetary damages and the plaintiff's claims for injunctive relief regarding access to the courts.   The department's motion to dismiss is denied as to the plaintiff's claims for injunctive relief arising from his claims regarding a deprivation of his equal protection rights.

Cosgrove, J.

FOOTNOTES

FN1. The complaint was originally filed by the plaintiff, Edwin Vega, Thomas Sentementes, and Antonio Wilson.   The court, Cosgrove, J., determined that only the plaintiff had properly commenced suit.   Therefore, the court ordered the appearances on behalf of Vega, Sentementes, and Wilson stricken as improperly entered.   Notice was sent to those individuals..  FN1. The complaint was originally filed by the plaintiff, Edwin Vega, Thomas Sentementes, and Antonio Wilson.   The court, Cosgrove, J., determined that only the plaintiff had properly commenced suit.   Therefore, the court ordered the appearances on behalf of Vega, Sentementes, and Wilson stricken as improperly entered.   Notice was sent to those individuals.

FN2. On July 26, 2012, the court, Cosgrove, J., granted the motion to dismiss filed by Schulman & Associates and Inmates Legal Assistance Program absent objection.   Schulman and York also filed a motion to dismiss that will be addressed in a separate decision..  FN2. On July 26, 2012, the court, Cosgrove, J., granted the motion to dismiss filed by Schulman & Associates and Inmates Legal Assistance Program absent objection.   Schulman and York also filed a motion to dismiss that will be addressed in a separate decision.

Cosgrove, Emmet L., J.