Kaminski v. Milling

Decision Date23 December 2015
Docket NumberHHBCV145016058S
CourtConnecticut Superior Court
PartiesJohn Kaminski v. Lynn Milling et al



Robert E. Young, Judge.


In his amended complaint dated March 3, 2015 but filed March 5 2015, the plaintiff, an incarcerated prisoner, seeks remedies against the defendants concerning legal representation or access to the courts; medical care and treatment; and his transfer from one correctional facility to another. The defendants are current or former employees of the State of Connecticut: Lynn Milling, former director of the Office of Classification and Population Management; Leo Arnone, former commissioner of the Department of Corrections (the department); Shanon Beckford, a registered nurse and employee of Correctional Managed Health Care; and Vanoun De Hove, a captain employed by the department.

Count one[1] claims " Denial of Meaningful Access to the Courts, " and appears to allege the denial of the federal constitutional right of access to the courts. The count alleges the following relevant facts. During Arnone's tenure to the present time, the department entered into a contract with Sydney T. Schulman, d/b/a Schulman and Associates, d/b/a Inmate Legal Assistance Program (ILAP), to provide federally mandated legal assistance to all inmates.[2] Arnone has failed to ensure that this contract with the ILAP effectively provides inmates with meaningful access to the courts. The plaintiff has commenced a separate action against Schulman and the ILAP to force compliance with federal law. However, because Schulman and the ILAP are defendants in the other action, there is a conflict of interest which bars them from representing the plaintiff in the present action. Furthermore, Arnone has declined to appoint other private counsel to the plaintiff as permitted by contract, and has even advised that his institutions should no longer provide inmates with any legal material or any form of legal assistance. As a result, the plaintiff has been denied meaningful access to the courts and the plaintiff has been forced to file the present action pro se.

Count two claims " plain and simple negligence." Count two incorporates the allegations in count one, and further alleges the following relevant facts. The plaintiff has had a medical condition which began in 2004, with symptoms of back pain and numbness on one side of the body.[3] In December 2011, the plaintiff was working in the commissary at the MacDougall-Walker Correctional Institution (MacDougall-Walker), when he experienced chronic nerve pain and fell to the floor. For the next ninety days, the medical department would evaluate him routinely, conducting tests and taking x-rays. On April 9, 2012, the plaintiff could no longer walk, and was admitted to the prison hospital ward for evaluation. On April 17, 2012, a prison nurse[4] harassed the plaintiff into walking. The plaintiff was only able to walk the length of the hallway with a wheeled walker and assistance from a nursing assistant. That same day, the plaintiff was transferred to Corrigan Radgowski Correctional Center (Corrigan), and placed in a nonmedical cell. The plaintiff could not walk to the medicine line, and had to forego medication, and even showering. Beckford, Milling and Arnone acted negligently in authorizing the transfer of the plaintiff when he was hospitalized at MacDougall-Walker, unable to walk. In addition, Milling, Arnone and De Hove acted negligently in authorizing the transfer, which was a " swap" because another inmate, James Biggs, was being transferred from Corrigan to MacDougall-Walker " as a matter of convenience, not necessity."

Count three is a claim of " Deliberate Indifference, " which appears to allege the violation of the eighth amendment to the United States Constitution, namely, the infliction of cruel and unusual punishment arising out of alleged inadequate medical care.[5] Count three incorporates the allegations in count one and count two, and further alleges that Beckford, Milling and De Hove acted with deliberate indifference in authorizing the transfer from the medical ward at MacDougall-Walker to the general population at Corrigan, even though the plaintiff could not walk. The plaintiff also alleges that Milling acted with deliberate indifference by authorizing " swap" for inmate Biggs without regard for the plaintiff's medical needs, condition, and prognosis.[6]

On August 21, 2015, the defendants filed a motion for summary judgment (158.00). In support, the defendants submitted various documents, including: a letter announcing that the law firm Bansley & Anthony will be running the Inmate Aid Program; the transcript from the July 14, 2015 deposition of the plaintiff; copies of the plaintiff's relevant medical records; and an affidavit of Rikel Lightner, a registered nurse.[7] On September 14, 2015, the plaintiff filed an objection to the motion for summary judgment (162.00). In support, the plaintiff submitted numerous documents, including notice or correspondence regarding various complaints and claims against state employees and ILAP counsel.[8] On the same day, the plaintiff filed his own motion for summary judgment (161.00), as well as a response to the affidavit of Lightner. These matters were heard at short calendar on October 26, 2015.


Defendants' Motion for Summary Judgment (158.00)

The defendants move for summary judgment on the ground of lack of subject matter jurisdiction. More specifically, as to count one, the defendants argue that the claim for denial of access to the courts is now moot because the alleged shortcomings in providing legal services have been addressed by retaining new counsel. Furthermore, as to all three counts, the defendants contend that sovereign immunity applies to the official capacity claims, and that statutory immunity applies to any claims against the defendants in their individual capacity. Finally, the defendants argue that, even if the court finds that it has subject matter jurisdiction, summary judgment should be granted on the merits as to count one, denial of access to the courts, and count three, " deliberate indifference."

The plaintiff objects as to all grounds raised by the defendants. As to mootness, the plaintiff argues that his claim in count one is that the defendants have not provided adequate legal assistance, and that the claim is not moot simply because the attorneys have been replaced with different counsel. The plaintiff also argues that his claims are not barred by sovereign or statutory immunity, and that the defendants have not met their burden on the merits.

A Subject Matter Jurisdiction

" [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). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " A motion to dismiss properly attacks the jurisdiction of the court . . . and mootness implicates a court's subject matter jurisdiction." (Citation omitted.) We the People of Connecticut, Inc. v Malloy, 150 Conn.App. 576, 581-82 n.3, 92 A.3d 961, cert. denied, 314 Conn. 919, 100 A.3d 850 (2014).

Furthermore, " [c]laims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). Accordingly, " a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).

In addition, the doctrine of federal qualified immunity also implicates the court's subject matter jurisdiction, and is a proper ground for the motion to dismiss. Chapman v. Chapdelaine, Superior Court, judicial district of Tolland, Docket No. CV-12-5005693-S (October 17, 2013, Graham, J.) (56 Conn. L. Rptr. 932, 933), citing Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011), and Tuchman v. State, 89 Conn.App. 745, 747, 763, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). See also Miller v. Arnone, Superior Court, judicial district of New Haven, Docket No. CV-13-5034503-S (January 30, 2015, Wilson, J.); Brahm v. Newbould, Superior Court, judicial district of New Haven, Docket No. CV-12-5034199-S (December 26, 2012, Zemetis, J.); Brody v. Arnone, Superior Court, judicial district of Hartford, Docket No. CV-11-5035229-S (June 2, 2011, Domnarski, J.).

Thus although the defendants have moved for summary judgment, the motion to dismiss standard will be applied to all issues regarding subject matter jurisdiction, including mootness, sovereign immunity, statutory immunity, eleventh amendment immunity, and qualified immunity. See generally Sethi v. Yagildere, 136 Conn.App. 767, 770 n.6, 47 A.3d 892, cert. denied, 307 Conn. 905, 53 A.3d 220 (2012) (" although the use of a motion for summary judgment may be a proper vehicle to raise issues of subject matter jurisdiction in some cases . . . generally, [t]he proper procedural vehicle for disputing a party's standing is a motion to dismiss . . . We see no reason to deviate from the...

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