Gawlik v. Malloy, CV185043126

• Court: Superior Court of Connecticut
• Writing for the Court: James W. Abrams, Judge
• Docket Number: CV185043126
• Parties: Jan GAWLIK v. Dannel MALLOY et al.
• Decision Date: 31 May 2019

Jan GAWLIK
v.
Dannel MALLOY et al.

No. CV185043126

Superior Court of Connecticut, Judicial District of New Haven, New Haven

May 31, 2019

UNPUBLISHED OPINION

OPINION

James W. Abrams, Judge

The plaintiff, Jan Gawlik, who is an inmate at the Cheshire Correctional Institution, brought this matter by complaint dated May 22, 2018. He alleges that various state officials violated his rights by refusing to allow him to openly display various religious articles, including a scapular, crucifix, and rosary.

There are fifty defendants in this case. The first group of defendants are members of the executive branch, specifically Governor Dannel P. Malloy; Lieutenant Governor Nancy Wyman; Secretary of the State Denise Merrill; and the Commissioner of Correction, Scott Semple. The second group of defendants are employees of the Department of Correction: Deputy Commissioner Monika Rinaldi; Reverend Father Anthony Bruno; Director of Security, Christine Whidden; District #2 Administrator, Peter Murphy; District #1 Administrator, Angel Quiros; Warden Anna Cournoyer; Warden Edward Maldonado; Warden William Faneuff; Deputy Warden Richard Laffargue; Warden Scott Erfe; Lieutenant Harris, Officer Salmon; Officer Tasarz; Lieutenant Archer; Officer Rosado; Officer Spring; Lieutenant McCarthy; Officer Tardiff; Captain Taylor; Officer McMahon; Officer Cunningham; Officer Burns; Officer (Mr.) Feliciano; Officer Shelton; Officer Jura; Officer (Ms.) Feliciano; Officer Anthony; Officer Deveau; Officer Campbell; Officer Sandulli; Officer Ortiz; Officer Gonzalez; Officer Briatico; Officer Bugbee; Officer Lally; Officer Hannis; Officer Vassar; Officer Riddick; and Officer Swanson. Finally, the third group of defendants are legislative officials: Senator Martin M. Looney, Senator Bob Duff, Senator Leonard A. Fasano, Senator Brendan Sharkey, Representative Joe Aresimowicz, Representative Themis Klarides and Executive Director, Legislature, James P. Tracy.

On September 24, 2018, the defendants filed a motion to dismiss all of the plaintiff’s claims except for those against the Commissioner, in his official capacity seeking injunctive relief pursuant to the Connecticut Religious Freedom Act, the anti-discriminatory state statutes, and the Religious Land Use and Institutionalized Person Act. The motion was accompanied by a memorandum of law. On November 9, 2018, the plaintiff filed a memorandum of law objecting to the defendants’ motion to dismiss. The defendants filed a reply memorandum on December 14, 2018, and the parties were heard at short calendar on February 4, 2019.

FACTS

The plaintiff’s allegations focus on two rules established by a Department of Correction (department) directive. The first rule, under a section titled "Religious Articles," states that "[r]eligious articles shall be worn or carried under the inmate’s clothing, and shall not be openly displayed." The second rule, which is found in a section called "Inmate Dress Code," states that "[r]eligious headwear may be worn at all times." In his complaint, the plaintiff alleges that the directive was promulgated by the general assembly and the commissioner. He also alleges that the department, through the authority of the commissioner- who in turn was appointed by the governor and approved by the general assembly- has, with this directive, established a policy that permits inmates of every faith to openly wear religious headwear as well as religious articles, provided that the inmates are not Christian or Catholic. The plaintiff further alleges that the policy put in place by the directive discriminates against Christians and Catholics because it prevents them from venerating their religious articles.

In terms of punishment, the plaintiff alleges that as a consequence of wearing religious articles outside of his clothing he has been threatened with bodily injury, a disciplinary report, and placement in administrative segregation. The plaintiff also alleges that he was once denied access to Mass. after failing to conceal his religious articles twice in one day and arguing with the officer who told him to place his articles underneath his clothing.

Although unnumbered, the plaintiff’s complaint appears to state twenty-one claims. As the plaintiff does not otherwise specify, each claim is apparently directed against every defendant. In his complaint, the plaintiff alleges that the defendants violated: state equal protection statutes, General Statutes § § 52-571a and 53-37b; two penal code statutes, General Statutes § § 53a-62 and 53a-192; General Statutes § 52-571b, the Connecticut Religious Freedom Act; anti-discriminatory state statutes, General Statutes § § 46a-69, 46a71, and 46a-78; the Connecticut Constitution, article first, § § 3, 8, 9, and 20, and article seventh; the first, eighth, ninth, and fourteenth amendments of the United States Constitution; the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-l; the Religious Land Use and Institutionalized Person Act, 42 U.S.C. § 2000cc-1; 42 U.S.C. § 1985, by conspiring to deprive him of his rights; and an Executive Order issued by President Donald Trump. The plaintiff further alleges a claim for "transfer and retaliation," in which he asserts that if he faces punitive measures such as transfer to another facility, he will seek monetary damages. In terms of relief, the plaintiff requests monetary damages, declaratory judgment as to the validity of the challenged directive, and prospective relief by way of altering the language in the directive.

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). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).

"Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case ... [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts ... Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citation omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). "[I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... other types of undisputed evidence ... and/or public records of which judicial notice may be taken ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 651-52.

At the outset, it should be noted that the plaintiff, who is self-represented, has requested that the court issue a "special solicitude" order. In light of the plaintiff’s status, it is appropriate to note that "[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party ... The modern trend ... is to construe pleadings broadly and realistically, rather than narrowly and technically ... The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their lack of legal education and experience ..." (Citation omitted; internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 274 Conn. 563, 569, 877 A.2d 761 (2005). Affording self-represented parties a degree of solicitude does not require issuing an order. Accordingly, the court may consider the plaintiff’s self-represented status when analyzing the parties’ arguments without issuing an order to that effect.

I. Penal Code Statutes

The defendants argue that the court lacks subject matter jurisdiction over the claims in the plaintiff’s complaint that rely on penal code statutes because those statutes do not confer a private cause of action. As mentioned, the plaintiff alleges violations of General Statutes § § 53a-62^[1] and 53a-192.^[2] In response to the defendants’ argument, the plaintiff contends that the Superior Court has jurisdiction over criminal matters, that he has not lost the right to file criminal charges due to his incarceration, and that he earns a private right of action upon filing a complaint with the state attorney’s office and the state police.

"The Superior Court has subject matter jurisdiction to hear criminal matters from its authority as a constitutional court of unlimited jurisdiction." (Internal quotation marks omitted.) State v....