Braham v. Newbould, 36235.

• Decision Date: 06 October 2015
• Docket Number: No. 36235.,36235.
• Citation: 160 Conn.App. 294,124 A.3d 977
• Court: Connecticut Court of Appeals
• Parties: Michael BRAHAM v. Richard NEWBOULD et al.

160 Conn.App. 294
124 A.3d 977

Michael BRAHAM
v.
Richard NEWBOULD et al.

No. 36235.

Appellate Court of Connecticut.

Argued May 27, 2015.
Decided Oct. 6, 2015.

124 A.3d 981

Michael Braham, self-represented, the appellant (plaintiff).

Zenobia G. Graham–Days, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellees (defendants).

Opinion

ALVORD, J.

160 Conn.App. 296

The plaintiff, Michael Braham, appeals from the judgment of the trial court dismissing his action against the defendants, Richard Newbould, Richard Bush, Catherine Durato, Sheryl Estrom, and Valerie Boykins.¹The plaintiff claims that the court improperly dismissed his claims against the defendants, employees of the Correctional Managed Health Care division of the University of Connecticut Health Center, on the basis of the doctrines of (1) qualified immunity and (2) sovereign immunity.²We affirm the judgment of the court.

160 Conn.App. 297

The following facts are alleged in the plaintiff's complaint. The plaintiff, a sentenced inmate at the Cheshire Correctional Institution, wears eyeglasses because of extreme nearsightednessand severe astigmatism. At some point, one of the hinges on his eyeglasses broke, causing the eyeglasses to sit improperly on his face. The plaintiff requested to see the optometrist, was examined approximately three months later, and was issued an updated prescription on April 5, 2006. During the interim period, he experienced “difficulties,” including blurred and distorted vision, eye strain, headaches, dizziness, loss of self-esteem, embarrassment and severe limitation in his ability to perform daily activities. At the time of the issuance of the prescription, Boykins, an office assistant,

124 A.3d 982

asked the plaintiff to sign an inmate fees form, which would authorize a three dollar deduction from his inmate account. The plaintiff signed the form. He did not, however, receive the eyeglasses at that time, because eyeglasses are made in a different location and shipped to the Cheshire Correctional Institution.

On May 12, 2006, Boykins informed the plaintiff that his eyeglasses had arrived and presented to the plaintiff another inmate fees form, which would authorize another three dollar deduction from his inmate account. The plaintiff refused to sign the form, stating that he already had been charged the three dollar co-pay. Boykins told him that there was a new rule pursuant to the Department of Correction's administrative directives. The plaintiff further questioned Boykins and showed her administrative directive 3.12(5)(C).³Boykins told

160 Conn.App. 298

the plaintiff that according to Sheryl, identified by the plaintiff as Estrom, a nurse, he would have to pay in accordance with the new rule. The plaintiff again refused to sign the form, and he was sent back to his housing unit without the new eyeglasses.

The plaintiff thereafter filed an inmate grievance, in which he claimed that he should not have been charged the second three dollar fee. The grievance was rejected by Durato, a health service administrator. The plaintiff then appealed from Durato's decision. That appeal was rejected by Bush, also a health service administrator. A later grievance also based on this claim filed by the plaintiff on February 17, 2007, was again denied, and the plaintiff's appeal was denied by Newbould, also a health service administrator. At some point following the denial by Newbould, the plaintiff agreed, “under duress, to end his physical pain,” to pay the second three dollar fee. By that time, the eyeglasses could not be located, and the plaintiff ultimately received them several weeks later.

The following procedural history is also relevant. The plaintiff commenced the present action by way of a six count complaint on April 12, 2012. In his first count, the plaintiff asserted a claim under 42 U.S.C. § 1983,⁴alleging that the defendants had violated his rights

160 Conn.App. 299

under the eighth amendment to the United States constitution.⁵In the remaining counts, the plaintiff asserted claims of intentional infliction of emotional distress, negligent infliction of emotional distress, medical malpractice, negligence, and extortion and coercion. The plaintiff sued the defendants in both their individual and official capacities.⁶

124 A.3d 983

On August 9, 2012, the defendants filed a motion to dismiss the action and a supporting memorandum of law, in which they argued that the court lacked subject matter jurisdiction because they were protected by the doctrines of statutory and sovereign immunity. The plaintiff filed an objection to the motion to dismiss and a supporting memorandum of law, in which he argued that neither sovereign nor statutory immunity barred his claims. He further argued that if the court were to find that he had not alleged facts sufficient to proceed with his claims, that he should be granted leave to amend his complaint.

On September 17, 2012, the court, Zemetis, J.,heard oral argument on the motion to dismiss. The court thereafter granted the defendants' motion to dismiss in a written memorandum of decision filed on December 26, 2012. In its memorandum, the court concluded that it lacked subject matter jurisdiction over the plaintiff's claims due to the application of sovereign, statutory, and qualified immunity. On January 9, 2013, the plaintiff filed a motion for reargument, in which he argued, inter alia, that the court erred in sua sponte considering the

160 Conn.App. 300

issue of qualified immunity without allowing him to be heard. He further argued that the court should have held an evidentiary hearing, at which he would have had the opportunity to demonstrate the severity of his eye condition. The motion was heard by the court, A. Robinson, J.,on April 7, 2014. At that time, the plaintiff requested permission to file additional briefing and also briefly mentioned his claim that Judge Zemetis improperly had found facts without holding an evidentiary hearing. The court then granted the plaintiff thirty days to brief the immunity issues, the state fifteen days to file a response, and ordered that oral argument be held in sixty days. When asked by the court whether that was what the plaintiff was looking for, the plaintiff responded, “Sounds good, Your Honor.”

The parties returned for oral argument before Judge Robinson on June 2, 2014. On that date, the plaintiff declined to argue the issue of qualified immunity, instead arguing primarily that the state should be required to brief and argue the issue first.⁷The plaintiff again argued that Judge Zemetis had erred in finding facts on an inadequate record. On September 8, 2014, the court issued an order stating that it “adopts the ruling and reasoning in the previous memorandum of decision, dismissing the case,” in which it adopted the ruling and reasoning of Judge Zemetis' memorandum of decision.

The plaintiff filed the present appeal on October 16, 2013. The plaintiff appealed only from the judgment dismissing the action. He did not file an amended appeal from the court's September 8, 2014 ruling on the motion for reargument.

We begin by setting forth our standard of review. “A motion to dismiss tests, inter alia, whether, on the face

160 Conn.App. 301

of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... Moreover, [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.... As we must in reviewing a motion to dismiss, we take the facts to be those alleged in the complaint, including those facts necessarily

124 A.3d 984

implied from the allegations, construing them in a manner most favorable to the pleader.” (Citation omitted; internal quotation marks omitted.) Sullins v. Rodriguez,281 Conn. 128, 131–32, 913 A.2d 415 (2007).

I

We first address the plaintiff's claim that the court improperly concluded that the defendants were entitled to qualified immunity from liability for the plaintiff's § 1983claim against them in their individual capacities for money damages. He further claims that the court erred in sua sponte raising and considering qualified immunity. We disagree with the plaintiff's claims.

“Under federal law, the doctrine of qualified immunity shields officials from civil damages liability for their discretionary actions as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.... Qualified immunity is an immunity from suit rather than a mere defense to liability and, therefore, protects officials from the burdens of litigation for the choices that they make in the course of their duties.... Thus, the United States Supreme Court has recognized qualified immunity for government officials [when] it [is] necessary to preserve...