Mercer v. Champion

• Decision Date: 20 November 2012
• Docket Number: AC 33656
• Court: Connecticut Court of Appeals
• Parties: EUGENE P. MERCER v. WALTER CHAMPION ET AL.

EUGENE P. MERCER v. WALTER CHAMPION ET AL.

AC 33656

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued September 24, 2012

officially released November 20, 2012

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(Appeal from Superior Court, judicial district of New

Britain, Pittman, J.)

Eugene P. Mercer, pro se, the appellant (plaintiff).

Daniel Shapiro, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendants).

Opinion

FLYNN, J. The pro se plaintiff, Eugene P. Mercer, incarcerated for felony murder,¹ appeals from the judgment of the trial court granting the defendants',² employees of the department of correction (department), motion to strike the entirety of the plaintiff's complaint seeking monetary damages, attorney's fees and declaratory and injunctive relief for the allegedly discriminatory actions of the defendants. On appeal, the plaintiff claims that the court improperly struck his complaint for failing to plead sufficient facts to support any of these claims. We affirm the judgment of the court.

The following factual and procedural history is relevant to our resolution of the plaintiff's appeal. The plaintiff commenced this action by way of a four count complaint, entitled by the plaintiff as ''causes of action,'' dated July 3, 2007, in which he alleged that the defendants violated Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.,³ § 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 701 et seq.,⁴ the equal protection clause of the fourteenth amendment to the United States constitution⁵ and article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments.⁶ The plaintiff indicated in his complaint that each defendant was sued in his or her official capacity.

The plaintiff alleged that he is afflicted with two neurological disorders that affect his balance, coordination and ability to walk. The plaintiff further alleged that he requested a ''modification of . . . rules, policies, practices and procedures'' of Osborn Correctional Institution (Osborn) to allow him ''access to practice a musical instrument on a daily basis, either by allowing access or allowing plaintiff to possess a portable keyboard with headphones for personal use as a specialized recreational activity,'' but his request was denied by the defendants. The plaintiff stated that his request was denied because the defendants were engaged in intentional discrimination against him because of his physical disability. The plaintiff further stated that he is entitled to this ''specialized recreational activity'' because his disability prevents him from participating in ''contact sports or activities'' that nondisabled inmates have access to, such that he ''is restricted to board games, weightlifting, library and the band program twice a week.'' The plaintiff alleged that he filed a grievance and exhausted his administrative remedies with the department before filing his complaint.

On February 8, 2008, the defendants filed a motion to strike alleging that the plaintiff failed in each count to state a claim upon which relief can be granted. The court granted the motion to strike on December 5, 2008, because the plaintiff never ''alleged that he was treateddifferently from others as a result of his disability. In fact, he is requesting specific relief unavailable to others In accordance with Practice Book § 10-44,⁷ the plaintiff filed a substitute pleading on January 9, 2009. The plaintiff's substitute complaint differed from his original complaint only by the addition of one paragraph: ''The plaintiff alleges that he is being treated differently from other inmates as a result of his disability. Reasonable accommodations in the area of recreational activities have been granted to other inmates. The plaintiff is being treated differently than others similarly situated.''

The defendants filed their second motion to strike on June 19, 2009. In this motion, the defendants argued that the plaintiff's additional paragraph ''does not add any substantive claims'' and, like the plaintiff's original complaint, ''fails to state a claim upon which relief can be granted . . . .'' The defendants also argued that ''monetary damages are not available when [the] plaintiff has failed to establish that the alleged ADA and [Rehabilitation Act] violations were motivated by discriminatory animus or ill will due to the disability.'' Finally, the defendants incorporated all of their legal arguments previously made in their first motion to strike into their second motion to strike. The court granted the second motion to strike on July 12, 2010.

In the court's memorandum of decision, dated July 12, 2010, it addressed the motion to strike in three parts—first addressing the counts related to money damages, then declaratory and injunctive relief and, finally, the constitutional claims. The court read the plaintiff's action against the defendants, state department employees, as an action against the state, subject to sovereign immunity unless the plaintiff pleaded that the ADA violation was motivated by discriminatory animus or ill will stemming from his disability. The court first concluded that the plaintiff ''[did] not allege facts rising to the level of discriminatory animus or ill will,'' such that ''his ADA claim is barred and must be stricken.'' (Emphasis in original.) Next, the court concluded that although ''[t]he complaint contains allegations sufficient to demonstrate that the plaintiff is a qualified individual under both [the ADA and the Rehabilitation Act] and that the defendants are subject to the provisions . . . the complaint fails to properly allege that the plaintiff was denied an opportunity to participate in or benefit from the defendants' services, programs or activities as a result of his disability. . . . Nor does the plaintiff allege facts related to any other perceived discrimination.'' The court concluded that, ''[a]side from his conclusory allegation that he is treated differently from others who are similarly situated, the plaintiff has failed to plead any facts . . . sufficient to establish a cognizable equal protection claim under either the federal or state constitution.'' (Emphasis in original.) The court also stated: ''[T]he plaintiff hasfailed to allege that other inmates . . . were provided with the type of accommodation he requested, such as individual possession of a musical instrument or alternative in-cell recreational resources, and that any such failure to provide such an accommodation to the plaintiff was because of the plaintiff's particular disability or disabled status.'' (Emphasis in original.) Thereafter, on August 23, 2010, the court rendered judgment for the defendants, striking the entirety of the plaintiff's complaint, and this appeal followed.

On appeal, the plaintiff claims that the court erred in striking his (1) claims for monetary damage under Title II of the ADA for failing to plead facts that demonstrate discriminatory animus or ill will, (2) claims for declaratory and injunctive relief for failing to plead sufficient facts under the ADA and the Rehabilitation Act and (3) constitutional equal protection claims for failing to plead sufficient facts.⁸ We begin by setting forth our standard of review and the principles that guide our analysis.

''The standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.'' (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). ''[W]e assume the truth of both the specific factual allegations and any facts fairly provable thereunder.'' (Internal quotation marks omitted.) Himmelstein v. Windsor, 304 Conn. 298, 307, 39 A.3d 1065 (2012). A ''[motion to strike] admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.'' (Emphasis in original.) Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985).

I

The first issue...