Wright v. Dzurenda
| Decision Date | 07 September 2021 |
| Docket Number | AC 43888 |
| Parties | Ian WRIGHT v. James DZURENDA et al. |
| Court | Connecticut Court of Appeals |
Ian Wright, self-represented, the appellant (plaintiff).
Thomas J. Davis, Jr., assistant attorney general, Hartford, CT, with whom, on the brief, was William Tong, attorney general, Stamford, CT, for the appellee (defendant Bonnie Hakins).
Prescott, Suarez and Vertefeuille, Js.
The self-represented plaintiff,1 Ian Wright, appeals from the judgment of the trial court, dismissing count four of his complaint, brought against the defendant Bonnie Hakins, a counselor for the Department of Correction (department), in her individual capacity, on the ground that the plaintiff's action is barred for failure to exhaust his administrative remedies.2 On appeal, the plaintiff claims that the court erred (1) in determining that he had failed to exhaust his administrative remedies and (2) in considering the defendant's special defense that the plaintiff had failed to exhaust his administrative remedies because the defendant had waived that special defense. We disagree and, accordingly, affirm the judgment of the court.
The following procedural history and facts, as found by the court or as undisputed in the record, are relevant to this appeal. The self-represented plaintiff was transferred to Garner Correctional Institution (Garner) from Corrigan Radowski Correctional Center on April 22, 2014. On April 30, 2014, the plaintiff submitted form CN 9601, an inmate request form (informal form), to a prison official at Garner, indicating that he had a grievance against the defendant for her alleged refusal to allow him access to a typewriter so that he could prepare legal documents to file with this court. The plaintiff included a subject line titled, "Re Grievance Denial Access to typewriter," on the informal form. On that form, the plaintiff stated that the grievance was being filed against the defendant, who had denied him "access to [the] typewriter, which [was] necessary to prepare legal pleadings to be filed with the [Connecticut] Appellate and federal courts." The plaintiff also claimed that the denial of access to the typewriter amounted to a denial of access to the court in violation of his first amendment rights under the federal constitution.
A prison official responded to the plaintiff's informal form and stated that the defendant was following Garner's policy and that the plaintiff was given access to the typewriter on May 5, 2014. Thereafter, on May 13, 2014, the plaintiff submitted form CN 9602, an inmate administrative remedy form (level one grievance form), setting forth a grievance against the defendant due to the defendant's alleged refusal to allow him access to a typewriter. Specifically, the plaintiff indicated that the grievance was being filed "for failure of the counselor ... and the staff of the [d]epartment ... to provide [him] with adequate use of a typewriter necessary to prepare legal document[s] to be filed with the court, which constitutes ‘denial of access to the courts’ in violation of the first amendment to the constitution of the United States." The plaintiff also claimed that he was subjected to an unreasonable search. The relief that the plaintiff requested to resolve his grievance entailed him being given access to the typewriter five days per week for one hour each day. His request was denied on June 11, 2014. The denial notice stated that, because Garner had only one typewriter that was afforded for use at Garner, the plaintiff should seek an extension with the courts so that he could timely submit his legal documents. The denial notice also advised the plaintiff that he could appeal the denial.
On June 13, 2014, the plaintiff submitted form CN 9604, an inmate grievance appeal form (level two grievance form), appealing the denial of his level one grievance regarding access to the typewriter, claiming that his grievance was improperly denied because he was unable to get access to the typewriter from the defendant after submitting numerous requests. His level two appeal was denied on July 1, 2014, and the denial notice stated that his claim was denied because his allegations could not be substantiated.
On June 10, 2014, the plaintiff submitted a second informal form with a subject line titled, "Re: Access to the typewriter and unreasonable strip search ‘Grievance.’ " On that informal form, the plaintiff stated that it was his "second grievance with respect to not getting access to the typewriter." The plaintiff also claimed that he believed "[t]he actions of [the defendant] [were] in retaliation for [his] first grievance [that he] filed against her." Garner responded by indicating that the issue raised by the defendant already had been addressed and that he was not being denied access because he had used the typewriter on several occasions and even chose to use his recreational time to exercise in lieu of using the typewriter when he was given the opportunity to use it. He did not further pursue, administratively, his claim of retaliation.
The plaintiff thereafter commenced this action in the Superior Court on October 3, 2014. The five count complaint alleged violations of 42 U.S.C. § 1983 (2012). The fourth count of the complaint, the relevant count for purposes of the plaintiff's claims raised on appeal, alleged that the defendant retaliated against the plaintiff for filing a grievance against her by denying him access to the typewriter.3 The plaintiff sought, inter alia, a declaratory judgment from the court "stating that ... the denial of a typewriter ... constituted denial of ‘access to the court,’ " and punitive damages.
On March 24, 2015, the defendants filed a motion to dismiss all counts of the plaintiff's complaint, contending that the court lacked subject matter jurisdiction, to which the plaintiff filed an objection on April 23, 2015. On August 31, 2016, the court, Ozalis, J. , dismissed the plaintiff's access to the court claims under counts one, two, and three for lack of standing because the plaintiff failed to show that he suffered an actual injury. On October 16, 2018, the defendants filed a second motion to dismiss, seeking dismissal of the plaintiff's claims for declaratory and injunctive relief and count five of the complaint. On February 4, 2019, the court, Krumeich, J. , granted the defendants’ motion and dismissed count five, as well as the plaintiff's claims for injunctive and declaratory relief, after determining that, because the plaintiff no longer was incarcerated at Garner, it lacked subject matter jurisdiction to afford the plaintiff the injunctive and declaratory relief requested. Moreover, the court determined that the plaintiff's claims under count five of the complaint became moot after he no longer was incarcerated at Garner.
On April 15, 2019, the defendant filed a motion for summary judgment as to count four, which was denied by the court, Brazzel-Massaro, J. , on November 20, 2019. On October 28, 2019, the defendant filed her answer to the plaintiff's complaint in which she denied the plaintiff's allegations in count four. She also raised two special defenses, claiming that she was entitled to qualified immunity for the allegations asserted under count four and that the plaintiff's action was barred by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e (a) (2018),4 because the plaintiff had failed to exhaust available administrative remedies before commencing this action in the Superior Court. On December 10, 2019, the plaintiff and the defendant exchanged their respective trial exhibits and the plaintiff also filed his list of trial exhibits with the court. On December 12, 2019, the eve of trial, the defendant filed a request to amend her answer and special defenses solely to address typographical and grammatical errors, and not to make any substantive changes. The request to amend was granted by the court on December 13, 2019. The defendant also had filed a motion for order on December 12, 2019, seeking a pretrial evidentiary hearing to determine whether the plaintiff had exhausted his administrative remedies before initiating this action. The court granted the defendant's motion after stating its concerns about the defendant's request to have the hearing on the morning of the first day of trial, December 13, 2019. The defendant indicated that, until the plaintiff had provided her with his trial exhibits on December 10, 2019, it was not clear to her that the plaintiff had failed to exhaust his administrative remedies. Notwithstanding the court's concerns about the timing of the defendant's motion, the evidentiary hearing was held that morning.
The defendant's only witness during the evidentiary hearing was Jason Olson, a correction counselor at Garner, who, at the time, was assigned as the primary administrative remedies coordinator. Olson testified that he maintained the records of grievances filed by inmates at Garner. He also explained that the inmate grievance procedure at Garner was governed by the department's administrative directive 9.6 (administrative directive). See Conn. Dept. of Correction, Administrative Directive 9.6 (effective August 15, 2013).5 Olson's testimony established that the proper procedure for an inmate to file a grievance, pursuant to the administrative directive, required the inmate first to go through an informal resolution process, which required the inmate to submit an informal form. If the informal process did not address the inmate's concerns, the inmate could then file a grievance by means of a level one grievance form. If the inmate's level one grievance was denied, the inmate could thereafter seek a review by filing a level two grievance form, which is when the inmate is considered to have exhausted the administrative remedy process. Notably, Olson testified that the plaintiff exhausted his administrative remedies as it pertained...
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