Diaz v. Berrios

• Decision Date: 23 January 2019
• Docket Number: HHDCV175045715S
• Court: Connecticut Superior Court
• Parties: Daniel DIAZ v. Counselor Maribel BERRIOS et al.

Daniel DIAZ v. Counselor Maribel BERRIOS et al.

No. HHDCV175045715S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

January 23, 2019

UNPUBLISHED OPINION

Dubay J.

I Procedural History

On August 16, 2017, the plaintiff, Daniel Diaz, filed his ten-count^[1] complaint, which alleges that the defendant, Counselor Berrios, ^[2] in her individual capacity, violated the plaintiff’s federal and state constitutional rights. The plaintiff asserts his federal constitutional rights pursuant to 42 U.S.C. § 1983 and his parallel state constitutional rights pursuant to state tort law. The plaintiff alleges the following facts. The defendant is an employee of the state of Connecticut and works for the Department of Corrections. The defendant discriminated against the plaintiff by failing or refusing "to secure a working typewriter so that the plaintiff could meet his filing deadlines." The defendant "retaliated against the plaintiff by claiming that she would ‘set the plaintiff up and issue [him] a disciplinary report’ if the plaintiff kept complaining about the unit typewriter." (Emphasis omitted.) The defendant "devised a scheme to deny the plaintiff access to the courts" by "flatly refus[ing] to give the plaintiff his [two additional pre-approved legal phone] calls." The defendant’s acts and omissions described constitute a deprivation of the plaintiff’s constitutional rights and these acts were "carried out under color of law but had no justification or excused and were gratuitous, illegal malicious, improper, and unrelated to activities which employees" in the defendant’s position may "legally engage in the course of protecting persons, the public or ensuring civil order." At all relevant times, the defendant acted "outside the scope of her duties and jurisdiction, nonetheless, acted wilfully, knowingly maliciously and purposefully with the specific intent to deprive the plaintiff of his right[s] to: due process of law equal protection of law; freedom from racial discrimination freedom of association; deprivation of liberty; cruel and unusual punishment." The plaintiff prays for monetary damages as well as declaratory and injunctive relief.

On June 28, 2018, the defendant moved for summary judgment (#112) and filed a memorandum of law in support thereof (#113). Attached to her memorandum of law, the defendant submitted the following evidence: (1) a sworn affidavit of the defendant; (2) an inmate request form dated June 6, 2017; (3) an administrative directive concerning inmate communications; (4) three inmate request forms dated June 2, 2017; June 8, 2017; and June 19, 2017; (5) the plaintiff’s legal phone call log for June 2017; (6) an administrative directive concerning inmate administrative remedies; (7) a housing card indicating the plaintiff’s specific housing location while incarcerated; and (8) a sworn affidavit of Jessica Bennet.

On August 9, 2018, the plaintiff filed his opposition (#114) to the defendant’s motion for summary judgment. The plaintiff submitted an affidavit (#115) in support of his opposition, to which he attached three exhibits: (1) an inmate request form dated July 8, 2016; (2) an inmate request form dated June 21, 2017; and (3) another inmate request form dated September 25, 2017. The court heard oral argument on the defendant’s motion on November 26, 2018.

II Discussion

"[I]t is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party ... we are also aware that [a]lthough we allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with the relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Berka v. Middletown, 181 Conn.App. 159, 163, 185 A.3d 596, cert. denied, 328 Conn. 939, 184 A.3d 268 (2018).

"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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which ... entitle him to a judgment as a matter of law ..." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). "[O]nly [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [does] the burden [shift] to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013).

The defendant moves for summary judgment on the plaintiff’s complaint on five grounds: (1) the defendant is statutorily immune to any state law claims pursuant to General Statutes § 4-165;^[3] (2) the plaintiff has failed to exhaust his administrative remedies; (3) the plaintiff lacks standing; (4) the plaintiff fails to state a cause of action that should be heard by the court; and (5) the plaintiff’s claim under 42 U.S.C. § 1983^[4] is barred by the doctrine of qualified immunity.

Some of the specific legal grounds the defendant relies upon in moving for summary judgment call into question the subject matter jurisdiction of the court and must be disposed of before the court may consider the underlying merits of the case.^[5] Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004) ("[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... and the court must fully resolve it before proceeding further with the case." [Internal quotation marks omitted]). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). "[Subject matter] [j]urisdiction ... is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Esposito v. Specyalski, supra. "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

A

Monetary Damage Claims

Standing

The defendant argues that the plaintiff lacks standing because (1) access to a working typewriter while imprisoned is not a recognized right under the United States Constitution; (2) two extra monthly legal phone calls while imprisoned is not a recognized right under the United States Constitution; and (3) the plaintiff has not alleged any facts that indicate he lost motions or cases as a result of his inability to present pleadings that are typewritten. The plaintiff argues that he has standing because he has alleged an actual injury and then describes the defendant’s alleged conduct and explains that all issues before the court are constitutional issues.

"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that the courts and parties are not vexed by suits brought to vindicate nonjusticiable interests ... [A] complainant [has standing when he] makes a colorable claim of direct injury he has suffered or is likely to suffer ... Two broad yet distinct categories of aggrievement exist, classical and statutory ... Classical aggrievement requires a two-part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest ... Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest ... Statutory aggrievement exists ... [when] particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Andross v. West Hartford, 285 Conn. 309, 321-22, 939 A.2d 1146 (2008). Aggrievement is established if there is a possibility ... that some legally protected interest ... has been adversely affected." (Internal quotation marks omitted.) Pomazi v. Conservation Commission, 220 Conn. 476, 483, 600 A.2d 320 (1991)

Section 1983 undoubtedly confers standing to individuals who have their federal constitutional rights violated by persons acting under color of state law. See § 1983. But to fully obtain statutory aggrievement, prisoners pursuing constitutional monetary damage claims must demonstrate, as a "constitutional prerequisite," the existence of an actual injury apart from the mere violation of his constitutional rights. Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Johnson v. Rell, 119 Conn.App. 730, 738 n.8, 990 A.2d 354 (2010).

In Binette v. Sabo, 244 Conn. 23, 25-26, 46, 710 A.2d 688 (1998), our Supreme Court recognized a damages action under the Connecticut...