Petty v. Homelson
| Decision Date | 21 March 2018 |
| Docket Number | HHDCV175044430S |
| Court | Connecticut Superior Court |
| Parties | Timothy PETTY v. Joseph A. HOMELSON |
UNPUBLISHED OPINION
Before the court is the defendant’s motion to strike counts one, two and four of the plaintiff’s revised complaint, which allege that the defendant violated the plaintiff’s rights of access to the courts, the plaintiff’s equal protection rights, and Connecticut Agency Regulations § 6-38b-6, respectively. For the reasons set forth below, the court grants the defendant’s motion to strike all three counts.
The operative complaint of the self-represented plaintiff Timothy Petty, is the July 10, 2017 revised complaint which alleges the following facts against the defendant, Joseph A Homelson, a state marshal. On August 14, 2013, the plaintiff who was and continues to be incarcerated, sent a complaint (original complaint) to the defendant and requested that the defendant serve the six defendants with a writ of summons and a complaint entitled Petty v. LaFrance (LaFrance ).[1] The complaint alleges that Homelson is a The plaintiff’s summons in LaFrance provided the addresses of the defendants to be served and stated that each defendant would be sued in " their individual capacities." Plaintiff’s Revised Complaint, ¶ 12. Upon receiving the original complaint the defendant altered it by substituting the word " official" for the word " individual" in paragraph four of the original complaint, along with initialing the change with the plaintiff’s forged initials.
On August 28, 2013, the defendant then made service upon those six defendants by leaving a copy of the writ of summons, and altered original complaint at the Office of the Attorney General. However, the defendant did not perform service as requested by the writ of summons because he did not serve each of the six defendants at their stated addresses. Nonetheless, on September 3, 2013, that lawsuit was filed in court and the defendant stated that service of process was made according to the law. On January 15, 2014, the defendants in that case filed a motion to dismiss which was subsequently granted by the court, J. Wiese, on May 6, 2014 on the basis that the action against the defendants was barred by sovereign immunity. Following this dismissal, the plaintiff discovered that the defendant altered the original complaint and filed this lawsuit alleging multiple constitutional violations against the defendant.
The complaint asserts it is brought pursuant to 42 U.S.C. § 1983. This statute creates a species of tort liability; City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S 687, 710, 119 S.Ct. 1624 143 L.Ed.2d 882 (1999); for vindication of federal rights; Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Count one of the complaint asserts that the defendant violated the plaintiff’s constitutional right of access to the courts by the substitution of " official" for " individual" in the original complaint which caused its dismissal. In count two, the plaintiff alleges that the defendant also violated the Equal Protection Clause by treating the plaintiff differently than similarly situated people based on his inmate status. Lastly, count four, when liberally construed in a manner raising the strongest argument suggested, alleges that the defendant breached the applicable standard of care enunciated in § 6-38b-6 of the Connecticut State Agencies[2] by failing to perform his duties as a state marshal, specifically, by failing to act with honesty and professional integrity and by engaging in the unlawful practice of law.
The defendant filed a motion to strike counts one, two, and four on August 14, 2017. The motion was accompanied by a memorandum of law in support. The plaintiff filed an objection to the motion on September 26, 2017, along with a memorandum of law in opposition.[3] A reply memorandum to the plaintiff’s objection was filed by the defendant on September 28, 2017. This matter was heard at short calendar on November 27, 2017.
(Internal quotation marks omitted.) Kumah v. Brown, 307 Conn. 620, 626, 58 A.3d 247 (2013). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commissioner, 182 Conn. 138, 438 A.2d 27 (1980). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
Moreover, the court recognizes that the submissions of a self-represented litigant are to be construed liberally and interpreted so as " to raise the strongest arguments that they suggest." (Emphasis omitted; internal quotation marks omitted.) Triesiman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see also Keeling v. liars, 809 F.3d 43, 47 n.2 (2d Cir. 2015) . Connecticut courts have adopted a similar policy. Our Supreme Court has instructed that the judges of the superior court (Citation omitted; internal quotation marks omitted.) Kaddah v. Commissioner of Correction, 299 Conn. 129, 140, 7 A.3d 911 (2010).
In the view of the defendant, count one must be stricken as legally insufficient because state marshals are not prison officials and a claim of violating the right to access the courts may be asserted only against prison officials. Furthermore, the scope of the right to access the court is limited to challenges of convictions, sentences, or conditions of confinement. In response, the plaintiff argues that count one does allege facts concerning the conditions of his confinement, specifically, concerning his medical care during his sentence. Furthermore, the plaintiff argues his claim survives because state marshals are agents of the State and the right of access to the courts by incarcerated persons may not be proscribed by the State. The defendant replies to this argument that the plaintiff incorrectly assumes that the right to access the courts is so broad that the doctrine reaches all government officials that may interact with inmates rather than those persons who are employed by the Department of Corrections as prison officials. The defendant asserts that his research reveals no cases in which a court applied the right of access to the courts to non-prison officials.
" The right of access to the courts and the right to petition the government with grievances find their source in the first amendment’s free speech and right to petition clauses, In re Primus, 436 U.S. 412, 426, 98 S.Ct. 1893, 1901, 56 L.Ed.2d 417 (1978), as well as the due process clauses of the fifth and fourteenth amendments, Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977)." McCoy v. Goldin, 598 F.Supp. 310, 314-15 (S.D.N.Y. 1984). It is axiomatic that an essential element of any claim for constitutional deprivation, like that presented by the plaintiff, must be asserted against an actor acting under color of state law. American Manufacturers. Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999). Absent a claim against a state actor a constitutional claim is subject to dismissal for failure to state a claim. " A prerequisite to any relief under section 1983 is that the defendant has acted under color of state law." Barnard v. Young, 720 F.2d 1188, 1188-89 (10th Cir. 1983).
The court is not persuaded by the defendant’s inability to find case law applying the constitutional right to access of the courts to non-prison settings. A brief review of the case law suggests that such claims abound. See e.g., McCoy v Goldin, supra ; (Radio repair men employed by the city of New York successfully claimed right of access to the courts unduly burdened by agreement waiving all rights to litigate certain disputes); Jiron v. Mahlab, 659 P.2d 311 (New Mexico, 1983) (), Bayfront Med. Ctr., Inc. v. Kim Oang Thi Ly, 465 So.2d 1383, 1384 (Fla.Dist.Ct.App. 1985) (...
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