Harnage v. Dzurenda

Decision Date31 March 2022
Docket Number3:14-cv-885 (SRU)
PartiesJAMES A. HARNAGE, Plaintiff, v. JAMES DZURENDA, et al., Defendants.
CourtU.S. District Court — District of Connecticut


Stefan R. Underhill United States District Judge

James A. Harnage (Harnage), currently incarcerated at MacDougall-Walker Correctional Institution, filed this action in 2014, principally alleging that the defendants violated the Equal Protection Clause of the Fourteenth Amendment by affording legal assistance with civil family matters to women incarcerated in Connecticut prisons but not to men. In July 2021, the defendants moved for summary judgment, arguing inter alia that Harnage does not have standing to proceed, that his claims are barred by the statute of limitations, that he has failed to demonstrate the personal involvement of any named defendant in a constitutional violation, and that the defendants are entitled to qualified immunity. For the following reasons, certain of Harnage's claims are dismissed without prejudice for lack of standing and the motion for summary judgment is granted.

I. Procedural History

The procedural history in this case is relatively lengthy. Relevant here, Harnage, originally proceeding pro se, filed this action in June of 2014. See Compl., Doc. No. 1. After I dismissed his original complaint pursuant to 28 U.S.C. § 1915, Harnage filed an amended complaint restating many of the claims dismissed on initial review. See Doc. Nos. 6, 10. On January 12, 2015, I issued an order permitting only the claim for a violation of the Equal Protection Clause to proceed against defendants Dzurenda, Lantz, Murphy, Salisbury, Foltz and Cepelak.” See Doc. No. 9 at 5.

In July 2015, the defendants moved to dismiss the Amended Complaint on a number of grounds, arguing that Harnage's claims were barred by the relevant statute of limitations, that he lacked standing to proceed, that his claims failed on the merits, and that they were entitled to qualified immunity. See Doc. No. 30. In March 2016, I issued an order granting in part and denying in part the motion to dismiss. See Order on Mot. to Dismiss, Doc. No. 58. Specifically, I dismissed without prejudice all claims raised on behalf of other incarcerated individuals; and dismissed with prejudice “any claim made in connection with [Harnage's] 2009 divorce and 2010 termination of parental rights, and all claims against defendants Lantz and Salisbury” as barred by the relevant statute of limitations. Id.

Thereafter Harnage moved to file a Second Amended Complaint. See Doc. No. 59. I granted Harnage's motion in June 2016, and simultaneously granted his motion to appoint counsel. See Doc. No. 62. The Clerk, however, was never directed to docket that Proposed Amended Complaint, nor was an initial review of that complaint conducted pursuant to section 1915, presumably on the assumption that pro bono counsel would file a Third Amended Complaint. See Doc. No. 92. The first attorney appointed in this matter, however, withdrew soon after being appointed, and consequently never filed such a complaint. See Doc. No. 94. Although new counsel was appointed in August 2018, see Order No. 112, and repeatedly represented that a Third Amended Complaint was forthcoming, no such complaint has been filed. See Doc. No. 150, 168.

In July 2021, apparently unclear about which was the operative complaint, the defendants moved for summary judgment on the first Amended Complaint. See Defs.' Mot., Doc. No. 157.

On January 27, 2022, after repeated discussions with the parties regarding Harnage's intent to file a Third Amended Complaint clarifying the scope of his claims, I held a status conference on the record to address the issue. See Mem. of Status Conference, Doc. No. 181. During that status conference, the parties agreed that Second Amended Complaint was the operative complaint, but that, given the overlap between the equal protection claim raised in the Amended Complaint and Second Amended Complaint, I would treat the motion for summary judgment as directed toward the Second Amended Complaint.[1] Id. I therefore consider the arguments raised in the defendants' motion for summary judgment as directed toward the Second Amended Complaint.

Finally, I note that counsel for Harnage has filed a three-page “opposition” to the defendants' pending motion for summary judgment, has submitted no evidence in conjunction with the motion, and has inexcusably failed to file a Statement of Facts in Opposition to Summary Judgment (or a statement of Additional Material Facts) as required by District of Connecticut Local Rule 56(a)2. Accordingly, where the defendants' statements of fact are unopposed and supported by record evidence, I will deem them admitted for purposes of this motion. See D. Conn. L. Civ. R. 56(a)3 (providing that if a non-moving party fails to provide specific citations to evidence in the record, the Court may “deem[] admitted certain facts [in the movant's Statement of Material Facts] that are supported by the evidence in accordance with Local Rule 56(a)1); Martin v. Town of Simsbury, 505 F.Supp.3d 116, 124 (D. Conn. 2020) (“Generally, when a party fails to appropriately deny facts set forth in the movant's Local Rule 56(a)(1) Statement, those facts are deemed admitted.”); Fed.R.Civ.P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . . the court may . . . consider the fact undisputed for purposes of the motion”). I note, however, that the Second Amended Complaint constitutes a verified complaint, and to the extent that it relies on personal knowledge and sets forth facts that would be admissible in evidence, I will treat it as an affidavit for purposes of this motion. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (noting that a verified complaint can be treated as an affidavit where it is made on personal knowledge and demonstrates the affiant's competency to testify in the matters set forth in the affidavit); see also Curtis v. DuBrey, 2016 U.S. Dist. LEXIS 151981, at *17 n.8 (N.D.N.Y. Nov. 1, 2016).

II. Factual Background

During the time period relevant to this action, the Connecticut Department of Correction (“DOC”) afforded incarcerated individuals access to courts by contracting with a private law firm to create the Inmates' Legal Assistance Program (“ILAP”). Defs.' Ex. 8, Doc. No. 157-10 at Ex. A; see also Smith v. Armstrong, 968 F.Supp. 40, 45 (D. Conn. 1996) (discussing the creation of ILAP). Under the terms of the 2010 agreement, which was extended by amendment through 2015 and then apparently renewed with a different law firm, private attorneys provided assistance with “claims involving terms and conditions of confinement only, determined…to be matters wherein a prima facie (as defined in Black's Law Dictionary) case is presented, through the preparation of legal documents, research, pleadings, motions, supporting memorandum of law and/or out of court oral and/or written advice.” Defs.' Ex. 8, Doc. No. 157-10. The agreement additionally included a provision entitled “Exception for Incarcerated Women, ” which specified that a full-time attorney would be made available to “represent offenders at York Correctional Institution (“York”) in family matters including, but not limited to, divorces, child custody, and DCF proceedings and other civil family matters.” Id. at ¶ 17. That provision, at the crux of the dispute in the case at bar, stemmed from a consent judgment entered in a class action (West v. Manson, 83-cv-366) brought by women incarcerated at the Connecticut Correctional Institution at Niantic (“CCIN”). Among other provisions, the consent judgment in West specified that the DOC would provide for an attorney “to represent CCIN inmates in family matters, such as divorces, child custody, DCYS proceedings, and other civil matters.” West v. Manson, 2017 U.S. Dist. LEXIS 144747, at *2 (D. Conn. Sept. 7, 2017).[2] The ILAP contract fulfilled that obligation by providing legal assistance in civil family matters to women incarcerated at York. Id.; see also Defs.' Ex. 9, Doc. No. 157-11.

Harnage, who has been incarcerated since June 2008, is serving a forty-year sentence for various sexual assault and risk of injury crimes involving two of his minor daughters. SAC at ¶ 7; L. R. 56(a)(1) Stmt. at ¶¶ 1-2; Ex. 1 Doc. No. 157-3 at ¶¶ 8-10. On September 24, 2010, standing criminal restraining orders were entered prohibiting Harnage from having any contact with the daughters who were the subject of the criminal case.[3] Ex. 1 Doc. No. 157-3 at Ex. B; see also Doc. No. 178-2. The parties agree that those criminal restraining orders are the only restraining orders still in effect, and that “the only available method to modify such a standing criminal protective order is to return to the criminal court and make such a request, and that has not taken place.” Pl.'s Mem., Doc. No. 164.

Harnage submits that, in September 2008, he was party to a dissolution of marriage, which became finalized in April 2009, and that the action involved child custody and visitation issues in addition to addressing the division of marital assets. SAC at ¶ 8. In November 2010 Harnage's ex-spouse initiated an action to terminate his parental rights; that action became finalized in December 2010. Id. at ¶ 9. Harnage claims that he was denied legal assistance in connection with those proceedings, and additionally that he has been denied legal assistance to appeal the divorce and discover or challenge the disposition of his marital and personal property; to challenge the termination of his parental rights and the adoption of his daughters; and to modify the standing criminal restraining orders. Id. at ¶¶ 23-32. Although h...

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