Harnage v. Dzurenda

• Decision Date: 28 March 2016
• Docket Number: No. 3:14-cv-885 (SRU),3:14-cv-885 (SRU)
• Citation: 176 F.Supp.3d 40
• Parties: James A. Harnage, Plaintiff, v. James Dzurenda, et al., Defendants.
• Court: U.S. District Court — District of Connecticut

176 F.Supp.3d 40

James A. Harnage, Plaintiff,

v.James Dzurenda, et al., Defendants.

No. 3:14-cv-885 (SRU)

United States District Court, D. Connecticut.

Signed March 28, 2016

James A. Harnage, Suffield, CT, pro se.

Steven R. Strom, Office of the Attorney General, Hartford, CT, for Defendants.

RULING ON DEFENDANTS' MOTION TO DISMISS

Stefan R. Underhill, United States District Judge

James A. Harnage commenced this civil rights action while incarcerated in the custody of the Connecticut Department of Correction. In the only remaining claim in his amended complaint, Harnage contends that the defendants—Commissioners James Dzurenda, Theresa Lantz, and Brian Murphy; and Deputy Commissioners Carol Salisbury, Robert Foltz, and Cheryl Cepelak—have violated his right to equal protection of the laws by failing to provide to male inmates the legal assistance in civil family matters that they provide to female inmates. The defendants move to dismiss the amended complaint on several grounds. They contend that Harnage has filed an action in state court that includes the same claim, that this action is time-barred, that the claims are frivolous, and that the defendants are protected by absolute and qualified immunity. They also move to dismiss for lack of standing, lack of personal jurisdiction, and improper service.¹ For the reasons that follow, the motion to dismiss is granted in part.²

I. Standard of Review

A. Rule 12(b)(1)

When considering a motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(1), the court must determine whether it has the statutory and constitutional power to adjudicate the case. See ?McCrory v. Administrator of FEMA , 600 Fed.Appx. 807 (2d Cir.2015) (citing Makarova v. United States , 201 F.3d 110, 113 (2d Cir.2000) ).

The plaintiff bears the burden of establishing that he has standing to prosecute his case. Elk Grove Unified Sch. Dist. v. Newdow , 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). When considering a motion under Rule 12(b)(1), the district court accepts all undisputed factual allegations as true and draws all reasonable inferences in the light most favorable to the nonmoving party. In addition, the court may refer to documents and evidence outside the pleadings to the extent that those submissions address the allegations supporting jurisdiction. See ?Robinson v. Gov't of Malaysia , 269 F.3d 133, 140 (2d Cir.2001) (“In a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the defendant may challenge either the legal or factual sufficiency of the plaintiff's assertion of jurisdiction, or both .... [W]here evidence relevant to the jurisdictional question is before the court, the district court may refer to that evidence.” (quotation and modification omitted)).

B. Rule 12(b)(6)

When considering a motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6), the court accepts as true all factual allegations in the complaint and draws inferences from these allegations in the light most favorable to the plaintiff. See ?Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ; Flores v. Southern Peru Copper Corp. , 343 F.3d 140, 143 (2d Cir.2003). The court considers not whether the plaintiff ultimately will prevail, but whether he has stated a claim upon which relief may be granted so that he should be entitled to offer evidence to support his claim. Walker v. Schult , 717 F.3d 119, 124 (2d Cir.2013).

In reviewing the complaint in response to a motion to dismiss, the court applies “a ‘plausibility standard,’ which is guided by two working principles.” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). First, the requirement that the court accept as true the allegations in the complaint “ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ ” Harris v. Mills , 572 F.3d 66, 72 (2d Cir.2009) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). Second, to survive a motion to dismiss, the complaint must state a plausible claim for relief. Determining whether the complaint states a plausible claim for relief is “ ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ ” Id. (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). Even under this standard, however, the court liberally construes a pro se complaint. See ?Sykes v. Bank of Am. , 723 F.3d 399, 403 (2d Cir.2013).

II. Facts

The following facts, taken from the amended complaint, relate to the equal protection claim in Count One, the only remaining count. See Doc. # 9 (noting that case will proceed against defendants Dzurenda, Lantz, Murphy, Salisbury, Foltz, and Cepelak on the equal protection claim in Count One only).

Harnage was incarcerated in June 2008. In September 2008, he became a party in an action for dissolution of marriage, and his divorce became final in April 2009. The action dealt with child custody and visitation issues as well as the division of marital assets. In December 2010, Harnage's parental rights were terminated. At the time of his incarceration, Harnage was subject to a restraining order and protective order preventing him from communicating with his children. Those orders remain in place. Harnage alleges that he was unable to defend himself in the family court proceedings.

He was denied access to legal research materials and did not understand the legal processes.

During the times relevant to this action, the Department of Correction afforded inmates their right of access to the courts through the Inmates' Legal Assistance Program. As part of that program, the defendants contracted with a private law firm to provide legal assistance to inmates incarcerated in Connecticut prisons. Under the contract, legal assistance with civil family matters has been provided to female inmates but not to male inmates.

III. Discussion

Harnage argues that the defendants have violated his right to equal protection of the laws by creating a program that denied him legal assistance and representation in civil family matters because of his gender.

A. Representing Other Inmates

In his amended complaint, Harnage purports to assert claims on behalf of all male inmates. See Doc. # 10 at 5, ¶ 38 (“The defendants['] discrimination of plaintiff, and all other male inmates in the denial of benefits and services of the state funded ILAP violates the state and federal constitutional right to equal protection.”). Harnage is proceeding pro se , and a pro se litigant can represent only himself. See ?Berrios v. New York Hous. Auth. , 564 F.3d 130, 133 (2d Cir.2009). Accordingly, Harnage cannot presently assert any claims on behalf of other inmates. The defendants' motion to dismiss is granted without prejudice with respect to any claims asserted on behalf of others.

B. Additional Materials

The defendants have filed a motion to dismiss accompanied by many affidavits and exhibits. Harnage also has submitted affidavits and exhibits with his memorandum in opposition to the motion. When considering a motion to dismiss under Rule 12(b)(6), the court considers only the allegations in the amended complaint and matters of which judicial notice may be taken. See ? Garanti Finansal Kiralama A.S. v. Aqua Marine and Trading Inc. , 697 F.3d 59, 63 n. ?4 (2d Cir.2012). If I were to consider the affidavits and exhibits, I would be required to convert the Rule 12(b)(6) motion to dismiss into a motion for summary judgment. See ?Fed. R. Civ. P. 12(d) (providing that if “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment...”). I decline to do so. Accordingly, I will consider only the allegations in the amended complaint and matters of which I may take judicial notice when reviewing the motion to dismiss under Rule 12(b)(6).

C. Standing

The defendants argue that Harnage lacks standing to claim that the defendants have deprived him of his right to equal protection of the laws. Standing relates to the subject matter jurisdiction of the court, and a motion to dismiss for lack of standing is therefore properly brought under Rule 12(b)(1). See ED Capital, LLC v. Bloomfield Investment Resources Corp. , 155 F.Supp.3d 434, 447, 2016 WL 112389, at *9 (S.D.N.Y. Jan. 5, 2016) (citing Connecticut v. Physicians Health Servs. of Conn., Inc. , 287 F.3d 110, 114 (2d Cir.2002) ). The Second Circuit has stated that the district court should consider a challenge to subject matter jurisdiction before addressing other grounds for dismissal. See ?Rhulen Agency, Inc. v. Alabama Ins. Guaranty Ass'n , 896 F.2d 674, 678 (2d Cir.1990).

To establish standing, the plaintiff must satisfy three elements: (1) “a concrete and particularized invasion of a legally protected interest;” (2) “a causal connection between the invasion and the alleged injury;” and (3) “likelihood that the injury will be redressed by a favorable decision.” Backer ex rel. Freedman v. Shah , 788 F.3d 341, 343 (2d Cir.2015) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).

The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1. That provision “bars the government from selective adverse treatment of individuals compared to other similarly situated individuals if ‘such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.’ ” Bizzarro v. Miranda , 394 F.3d 82, 86 (2d Cir.2005) (quoting LeClair v. Saunders , 627 F.2d 606, 609–10 (2d Cir.1980) ). One such “impermissible consideration” is gender. See ?Morales – Santana v. Lynch , 804 F.3d 520, 527–28 (2d Cir.2015) (considering and applying intermediate or heightened scrutiny to equal protection...