Gonzalez v. Comm'r of Corr.

• Citation: 211 Conn.App. 632,273 A.3d 252
• Decision Date: 05 April 2022
• Docket Number: AC 44229
• Parties: Pedro GONZALEZ v. COMMISSIONER OF CORRECTION
• Court: Appellate Court of Connecticut

211 Conn.App. 632

273 A.3d 252

Pedro GONZALEZ

v.COMMISSIONER OF CORRECTION

AC 44229

Appellate Court of Connecticut.

Argued January 6, 2022

Officially released April 5, 2022

Jennifer B. Smith, assistant public defender, for the appellant (petitioner).

James W. Donohue, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Clare Kindall, person general, for the appellee (respondent).

Prescott, Elgo and Suarez, Js.

ELGO, J.

The petitioner, Pedro Gonzalez, appeals from the judgment of the habeas court denying his motion for immediate release from the custody of the respondent, the Commissioner of Correction, filed in connection with his pending habeas corpus proceeding. On appeal, the petitioner claims that (1) the court improperly concluded that he had not proven the requisite deliberate indifference to establish a violation under the eighth amendment to the United States constitution and (2) the respondent violated his rights under article first, §§ 8 and 9, of the state constitution. Both claims are predicated on the petitioner's allegation that his continued confinement during the COVID-19 pandemic constitutes an unnecessary risk to his life. We affirm the judgment of the habeas court.

In May, 2016, the petitioner pleaded guilty to various criminal offenses and was sentenced to a term of twelve years of incarceration, execution suspended after nine years, and three years of probation. In March, 2017, the petitioner filed a petition for a writ of habeas corpus, alleging, inter alia, that his guilty plea was involuntary and that his trial counsel had rendered ineffective assistance.

While that habeas corpus action was pending, the COVID-19 pandemic swept the globe. On January 31, 2020, the secretary of the United States Department of Health and Human Services declared a public health emergency in the United States. On March 10, 2020, Governor Ned Lamont declared a public health emergency and a civil preparedness emergency throughout the state of Connecticut. On March 13, 2020, President Donald J. Trump issued a proclamation that the COVID-19 outbreak in the United States constituted a national emergency. In response, numerous emergency measures were enacted at both the state and federal level.

On May 19, 2020, the petitioner, acting in a self-represented capacity, filed a "motion for immediate release" with the habeas court.¹ In that motion, the petitioner alleged that, due to multiple medical conditions, his risk of contracting the COVID-19 virus while incarcerated constituted an unnecessary risk to his life. More specifically, the petitioner alleged that, "[i]f [he] is not release[d], and does get infected with COVID-19, [his] chances of surviving the virus is 9 [percent]. Simply put, [the petitioner] will die." Because less than four years remained on his sentence, the petitioner alleged that his health was "unnecessarily compr[om]ised by continued incarceration ...."² By order dated May 20, 2020, the court ordered the respondent to furnish a copy of the petitioner's medical records to the petitioner and the clerk of the court; the respondent complied with that request.³

The respondent filed an objection to the petitioner's motion on May 28, 2020. Appended to that pleading were the sworn declarations of Warden Antonio Santiago; Warden Kristine Barone; Byron Kennedy, Chief Medical Officer for the Department of Correction (department); and Melinda Jarjura, a registered nurse employed by the department.⁴ A copy of the interim COVID-19 guidelines issued by the United States Centers for Disease Control and Prevention (CDC) also accompanied the respondent's objection.

On May 29, 2020, the court conducted a remote hearing on the petitioner's motion.⁵ At the outset, the petitioner confirmed that he had received the four sworn declarations submitted by the respondent; the petitioner, the respondent, and the court all discussed those declarations during that hearing.⁶ The only evidence presented by the petitioner was his own testimony.⁷ In addition, the respondent offered the testimony of Carey Freston, a licensed physician who served as the department's acting regional medical director.

In its June 16, 2020 memorandum of decision, the court found the following relevant facts. "The petitioner is currently housed at [MacDougall-Walker] Correctional Institution in Suffield .... He has a current diagnosis of central pulmonary sarcoidosis

, a disease which causes complications within lung tissue. He also has a diagnosis of asthma. Further, the petitioner has been diagnosed with allergic rhinitis

(described by Freston as a ‘drippy nose’), melanonychia (described by Freston as a noncancer related darkness of the finger nails), self-described claustrophobia, ectopic dermatitis (a ‘skin rash’), back pain, neuropathic pain, seasonal allergies ... gastro-esophageal reflux disease, vitamin D deficiency, migraines, epigastric discomfort, and pleuritic chest pain. He has no symptoms commonly associated with having contracted COVID-19. ...

"Freston is board certified in family medicine and is a certified correctional health professional. He testified credibly to the evaluation, diagnosis and treatment of the petitioner's several medical issues. Freston testified that the petitioner's pulmonary sarcoidosis

results in trouble breathing and inflammation of the lungs. Although this diagnosis places the petitioner at increased risk of contracting COVID-19 and, if contracted, at increased risk for adverse health consequences, [Freston] testified credibly that the sarcoidosis is being monitored by [the department's] medical staff and is presently stable, requiring no prescription medications.

"Freston testified to [department's] measures designed to safeguard the petitioner's health. The petitioner's asthma

, another preexisting condition that increases the petitioner's risk of contracting COVID-19 and, if contracted, an increased risk for adverse health consequences, has been evaluated and monitored through pulmonary functioning tests. Although the asthma has worsened over time to the point where it has been classified as ‘moderate-persistent,’ it is being treated with an inhaled steroid. The court finds that there is a lack of evidence to support the petitioner's contention of the existence of a large mass present in the front lobe of the petitioner's brain, as opposed to a small area of a single abnormality as revealed by a brain scan MRI.

"Freston testified credibly that inmates’ health, including the petitioner's, is monitored, and they are screened in an effort to identify symptoms commonly associated with having contracted COVID-19. Those inmates testing positive, showing symptoms or refusing a COVID-19 test are isolated from inmates testing negative.

"A review of the testimony and exhibits leads the court to the conclusion that the petitioner has failed to show ‘deliberate indifference’ to his medical needs. ... The evidence presented supports the conclusion that the respondent has provided adequate medical care, has taken appropriate measures to minimize the petitioner's exposure and risk to COVID-19 and has not been deliberately indifferent to any of the risks to the petitioner's health. ... The court finds that the several, recent protective and mitigating measures testified to by [Freston] demonstrate a thoughtful, sincere, and organized effort by [the department] to prevent and reduce the spread of this virus through the petitioner's [correctional] facility." (Citations omitted.) The court thus concluded that the petitioner had not established an eighth amendment violation and, accordingly, denied the petitioner's motion. The court subsequently granted certification to appeal from that judgment, and this appeal followed.⁸

I

Before considering the claims raised by the petitioner in this appeal, we first address a threshold question of whether this court has subject matter jurisdiction over the appeal. "A claim that a court lacks subject matter jurisdiction ... may be raised at any time during the proceedings, including for the first time on appeal." (Internal quotation marks omitted.) Mangiafico v. Farmington , 331 Conn. 404, 430, 204 A.3d 1138 (2019). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ...." (Internal quotation marks omitted.) Peters v. Dept. of Social Services , 273 Conn. 434, 441, 870 A.2d 448 (2005). Whether a court possesses subject matter jurisdiction is a question of law over which our review is plenary. See Wolfork v. Yale Medical Group , 335 Conn. 448, 470, 239 A.3d 272 (2020). In addition, "[i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Novak v. Levin , 287 Conn. 71, 79, 951 A.2d 514 (2008).

At issue is whether the petitioner's appeal is moot. "Mootness implicates [the] court's subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. ... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority , 291 Conn. 502, 506, 970 A.2d 578 (2009).

The petitioner...