Harnage v. Lightner ( 2016 )

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JAMES A. HARNAGE v. RACQUEL
LIGHTNER ET AL.
(AC 37539)
Gruendel, Prescott and Pellegrino, Js.
Argued October 28, 2015—officially released March 1, 2016
(Appeal from Superior Court, judicial district of
Hartford, Peck, J. [motion to dismiss]; Hon. Constance
L. Epstein, judge trial referee [motions to dismiss, for
judgment].)
James A. Harnage, self-represented, the appellant
(plaintiff).
Michael A. Martone, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Terrence M. O’Neill, assistant attorney general,
for the appellees (defendants).
Opinion
PRESCOTT, J. The plaintiff, James A. Harnage,
appeals from the judgment of the trial court, dismissing
his civil action in favor of the defendants1 on the
grounds that he failed to properly serve the defendants
in their individual capacities and failed to post a recogni-
zance bond as required by General Statutes (Rev. to
2013) § 52-185.2 On appeal, the plaintiff claims that the
court improperly granted the defendants’ motion to dis-
miss because: (1) General Statutes §§ 52-64 (a) and 52-
57 (a) permit process to be served upon state employees
in their individual capacities by serving the attorney
general at the Office of the Attorney General in Hart-
ford; and (2) the recognizance bond requirement, as set
forth in General Statutes (Rev. to 2013) §§ 52-185 and
52-186,3 does not apply to him, or, if it does, such a
requirement is unconstitutional because it violates his
rights to due process and equal protection of the law
under the United States constitution. We are not per-
suaded by either claim. Nevertheless, because we put
an interpretive gloss on §§ 52-185 and 52-186 in order
to avoid placing these statutes in constitutional jeop-
ardy, we are compelled to reverse the judgment in part
and to remand this case to the trial court to consider
whether it should waive the plaintiff’s obligation to post
a recognizance bond.
The record reveals the following undisputed facts
and procedural history. The plaintiff is incarcerated
at the MacDougall-Walker Correctional Institution. On
February 11, 2014, the trial court found that the plaintiff
was indigent and granted him a fee waiver for the entry
fee, the filing fee, and the cost of service of process.
The plaintiff then initiated this action against the defen-
dants, in their official and individual capacities,4 alleging
that the defendants had violated his constitutional
rights because they were deliberately indifferent to his
medical needs. The plaintiff claimed, inter alia, that the
defendants reused needles when administering insulin
medication to inmates with diabetes, as well as refused
to provide him with medical treatment for a serious
hemorrhoid and an abdominal hernia.
On March 5, 2014, the plaintiff attempted to serve
the defendants by leaving a copy of the writ of sum-
mons, and complaint with the attorney general or his
designee at the Office of the Attorney General. On or
about April 15, 2014, the defendants mailed a letter to
the plaintiff, requesting that he post a recognizance
bond in the amount of $250 within ten days. That same
day, the defendants also filed a motion to dismiss the
complaint against the defendants in their individual
capacities for lack of personal jurisdiction due to insuf-
ficient service of process, and against the defendants
in their official capacities because the plaintiff had
failed to post a recognizance bond.
The plaintiff subsequently filed an objection to the
defendants’ motion to dismiss. In his objection, the
plaintiff argued that he had properly served the defen-
dants in their individual capacities by leaving a copy
of the process with the attorney general at the Office
of the Attorney General in Hartford. Furthermore, he
claimed that the requirement of posting a recognizance
bond pursuant to § 52-185 and Practice Book § 8-3 did
not apply to him and, even if it did, the amount of the
recognizance bond was in the court’s discretion and
should be limited to the nominal amount of one dollar,
which, in essence, is a request for a waiver.
On June 30, 2014, the court granted the defendants’
motion to dismiss in part. Specifically, the court granted
the motion to dismiss the claims against the defendants
in their individual capacities because the plaintiff failed
to properly serve the defendants in their individual
capacities pursuant to § 52-57 (a). The court also
ordered the plaintiff to a post a recognizance bond in
the amount of $250 within two weeks or it would dis-
miss the case in its entirety upon reclaim of the motion.
Because the plaintiff could not afford to post the $250
recognizance bond and desired to appeal from the
court’s decision, on November 10, 2014, he filed a
motion for judgment, which the court subsequently
granted. This appeal followed.
I
The plaintiff first claims that the court improperly
granted the defendants’ motion to dismiss for lack of
personal jurisdiction the claims brought against them
in their individual capacities on the ground that he failed
to properly serve the defendants pursuant to § 52-57
(a). The plaintiff argues that in a civil action against
state employees in their individual capacities, § 52-64
(a) permits service of process to be made by a proper
officer leaving a copy of process with the attorney gen-
eral at the Office of the Attorney General in Hartford.
The plaintiff further argues that § 52-57 (a) does not
require him to serve the defendants in hand or at their
place of abode because the phrase, ‘‘[e]xcept as other-
wise provided,’’ contained in § 52-57 (a), is a reference
to § 52-64. The defendants respond that it is clearly
established that § 52-64 (a) applies only if a state
employee has been sued in his official capacity and that
§ 52-57 (a) applies when a state employee is sued in
his individual capacity. We agree with the defendants.
We begin with the standard of review and the relevant
legal principles governing the plaintiff’s claim. ‘‘A
motion to dismiss . . . properly attacks the jurisdic-
tion of the court . . . . A motion to dismiss tests, inter
alia, whether, on the face of the record, the court is
without jurisdiction. . . . [O]ur review of the trial
court’s ultimate legal conclusion and resulting [decision
to grant] . . . the motion to dismiss will be de novo.
. . . To the extent that our resolution of an appeal
requires us to construe a statute, our review is plenary,
as statutory construction is a question of law.’’ (Citation
omitted; internal quotation marks omitted.) Ribeiro v.
Fasano, Ippolito & Lee, P.C., 157 Conn. App. 617, 623–
24, 117 A.3d 965 (2015); see State v. Boyd, 272 Conn. 72,
76, 861 A.2d 1155 (2004) (stating that when interpreting
language of statute, standard of review is plenary).
‘‘The principles that govern statutory construction
are well established. When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner,
the meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply. . . . In seeking to
determine that meaning, General Statutes § 1-2z directs
us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
When a statute is not plain and unambiguous, we also
look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to
its relationship to existing legislation and common law
principles governing the same general subject matter
. . . .’’ (Internal quotation marks omitted.) Southern
New England Telephone Co. v. Cashman, 283 Conn.
644, 650–51, 931 A.2d 142 (2007).
We begin, as we must, with the language of the stat-
utes at issue. Section 52-57 (a) provides: ‘‘Except as
otherwise provided, process in any civil action shall be
served by leaving a true and attested copy of it, including
the declaration or complaint, with the defendant, or at
his usual place of abode, in this state.’’ Section 52-57
(b) through (f) then set forth a number of exceptions
to subsection (a). For example, subsection (d) provides
in relevant part: ‘‘In actions against a partnership, ser-
vice of process may be made by personally serving any
process within the state upon any one of the partners
or, if none of the partners are residents of the state,
service may be made upon the Secretary of the State
. . . .’’ General Statutes § 52-57 (d).
Additionally, § 52-64 (a) provides: ‘‘Service of civil
process in any civil action or proceeding maintainable
against or in any appeal authorized from the actions
of, or service of any foreign attachment or garnishment
authorized against, the state or against any institution,
board, commission, department or administrative tribu-
nal thereof, or against any officer, servant, agent or
employee of the state or of any such institution, board,
commission, department or administrative tribunal, as
the case may be, may be made by a proper officer (1)
leaving a true and attested copy of the process, includ-
ing the declaration or complaint, with the Attorney Gen-
eral at the office of the Attorney General in Hartford,
or (2) sending a true and attested copy of the process,
including the summons and complaint, by certified mail,
return receipt requested, to the Attorney General at the
office of the Attorney General in Hartford.’’
In construing §§ 52-57 (a) and 52-64 (a), we do not
write on a clean slate. Decisions of this court have
repeatedly held that a plaintiff, who serves a state defen-
dant pursuant to § 52-64 (a) by leaving a copy of the
process with the attorney general at the Office of the
Attorney General, has properly served the defendant
only in his or her official capacity and has failed to
properly serve the defendant in his or her individual
capacity. See Traylor v. Gerratana, 148 Conn. App.
605, 612–13, 88 A.3d 552 (holding that plaintiff’s claims
against defendants in their individual capacities were
barred by lack of personal jurisdiction on basis of
improper service of process because plaintiff only
served process on attorney general and not at defen-
dants’ places of abode as required by § 52-57 [a]), cert.
denied, 312 Conn. 901, 91 A.3d 908, cert. denied, 312
Conn. 902, 112 A.3d 778, cert. denied, U.S. , 135
S. Ct. 444, 190 L. Ed. 2d 336 (2014); Edelman v. Page,
123 Conn. App. 233, 243–44, 1 A.3d 1188 (‘‘[T]he court
properly dismissed the action against the state defen-
dants due to insufficient service. . . . [T]hey were
being sued in their individual capacities, which required
that they be served at their usual place of abode. The
plaintiff acknowledged that service was made on the
secretary at the office of the attorney general [only]
. . . .’’ [Citations omitted.]), cert. denied, 299 Conn.
908, 10 A.3d 525 (2010); Reitzer v. Board of Trustees
of State Colleges, 2 Conn. App. 196, 203–204, 477 A.2d
129 (1984) (holding that service on defendants through
Office of Attorney General was proper because defen-
dants were sued in their official capacities but relief
sought can only be granted against them in their official
capacity and not in their individual capacity).
The United States Court of Appeals for the Second
Circuit has similarly declined to interpret § 52-64 (a) as
authorizing service on a state employee in his or her
individual capacity by leaving a copy of the process
with the attorney general at the Office of the Attorney
General. See Bogle-Assegai v. Connecticut, 470 F.3d
498, 507 (2d Cir. 2006), cert. denied, 552 U.S. 1165, 128
S. Ct. 1121, 169 L. Ed. 2d 949 (2008). In reaching that
conclusion, the Second Circuit relied in particular on
the following language of § 52-64 (a): ‘‘against . . . the
state or . . . any officer, servant, agent or employee
of the state . . . as such . . . .’’ (Emphasis added;
internal quotation marks omitted.) Id. The court rea-
soned that if a defendant is a state employee, but is not
sued ‘‘as such,’’ in other words, if he is sued in his
individual capacity, service of process must be made
pursuant to § 52-57 (a), which requires that service be
made by leaving the summons and complaint with the
defendant or at his usual place of abode. Id. In light of
the language of the statutes and these authorities, in
order for the plaintiff to have properly served the defen-
dants in their individual capacities, he was required to
serve process in the manner required by § 52-57 (a).
The plaintiff argues that if § 52-57 (a) is applicable, the
legislature’s use of the phrase, ‘‘[e]xcept as otherwise
provided,’’ demonstrates an intent that § 52-64 (a)
applies in the event that a state employee is sued in his
or her individual capacity. The language of the statute,
however, does not allow for such an interpretation
because § 52-64 (a) does not ‘‘otherwise provide’’ for
service of process on a state employee in his or her
individual capacity by serving process on the attorney
general at the Office of the Attorney General. Further-
more, § 52-57 specifically enumerates exceptions to
subsection (a), none of which provide that it is permissi-
ble to serve process in cases against state employees
in their individual capacities by leaving a copy of the
process with the attorney general at the Office of the
Attorney General. Thus, the legislature’s use of the
phrase, ‘‘[e]xcept as otherwise provided,’’ does not
advance the plaintiff’s claim because he has failed to
identify any applicable statutory exception to § 52-57
(a).
In sum, in order for the plaintiff to properly serve
process on the defendants in their individual capacities,
the plaintiff was required to ‘‘[leave] a true and attested
copy of [process], including the declaration or com-
plaint, with the defendant, or at his usual place of abode
. . . .’’ General Statutes § 52-57 (a). Because the plain-
tiff failed to comply with § 52-57 (a) and only attempted
to serve process upon the defendants by leaving a copy
of process at the Office of the Attorney General, such
service was insufficient to obtain personal jurisdiction
over the defendants in their individual capacities.
Accordingly, we conclude that the court properly dis-
missed for lack of personal jurisdiction the claims
brought against the defendants in their individual capa-
cities because the defendants were not properly served
pursuant to § 52-57 (a).
II
The plaintiff next claims that the court improperly
granted the defendants’ motion to dismiss the claims
brought against them in their official capacities on the
ground that the plaintiff failed to post a recognizance
bond pursuant to § 52-185.5 Specifically, the plaintiff
argues that the recognizance bond requirement does
not apply to him, or if it does, it is unconstitutional
because it deprives him of his rights to due process
and equal protection of the law under the federal consti-
tution. We conclude that the recognizance bond require-
ment does apply to the plaintiff. We, however, conclude
that it is necessary to place an interpretive gloss on
§§ 52-185 and 52-186 in order to avoid placing them in
constitutional jeopardy. Accordingly, we construe these
provisions as authorizing the court to waive the plain-
tiff’s obligation to post, or to reduce significantly the
amount of, a recognizance bond in light of a party’s
indigency and status as an inmate.
A
The plaintiff first argues that the recognizance bond
requirement, as set forth in §§ 52-185 and 52-186, does
not apply to him because a recognizance bond is
required only if costs can be taxed against him if the
state prevails. The plaintiff argues that costs cannot
be taxed against him because a 1931 decision of our
Supreme Court stated that if costs are not taxable
against one party, then that party may not seek costs
in its favor. See Bissing v. Turkington, 113 Conn. 737,
740, 157 A. 226 (1931) (‘‘[i]f [costs] are not taxable
against the respondent they are not taxable in his favor
against the applicant’’). Thus, according to the plaintiff’s
argument, because the state’s sovereign immunity pre-
vents the imposition of costs against it, costs may not
be taxed against him.6 We are not persuaded.
Whether the recognizance bond requirement, as set
forth in §§ 52-185 and 52-186, applies to the plaintiff in
this case is a question of statutory interpretation, and,
therefore, our review is plenary. See Atlantic Mort-
gage & Investment Corp. v. Stephenson, 86 Conn. App.
126, 131–32, 860 A.2d 751 (2004) (‘‘The question of
whether a particular statute . . . applies to a given
state of facts is a question of statutory interpretation
. . . . Statutory interpretation presents a question of
law for the court. . . . Our review is, therefore, ple-
nary.’’ [Internal quotation marks omitted.]); Ribeiro v.
Fasano, Ippolito & Lee, P.C., supra, 157 Conn. App.
623–24 (in reviewing trial court ruling on motion to
dismiss, if required to construe statute, appellate review
is plenary because it is question of law); see also part
I of this opinion (discussing standard of review for
statutory construction issues and legal principles guid-
ing our analysis).
We begin with the language of the provisions at issue.
General Statutes (Rev. to 2013) § 52-185 provides in
relevant part: ‘‘(a) If the plaintiff in any civil action . . .
does not appear to the authority signing the process
that the plaintiff is able to pay the costs of the action
should judgment be rendered against him, the plaintiff
shall enter into a recognizance to the adverse party
with a financially responsible inhabitant of this state
as surety, or a financially responsible inhabitant of this
state shall enter into a recognizance to the adverse
party, that the plaintiff shall prosecute his action to
effect and answer all costs for which judgment is ren-
dered against him. . . .’’
General Statutes (Rev. to 2013) § 52-186 (a) provides
in relevant part: ‘‘The court, upon motion of the defen-
dant or on its own motion, may order a sufficient bond
to be given by the plaintiff before trial . . . . In
determining the sufficiency of the bond to be given, the
court shall consider only the taxable costs which the
plaintiff may be responsible for under section 52-257
. . . .’’
It is well settled that these statutes only apply in civil
cases in which costs are taxable against the plaintiff.
See Bissing v. Turkington, supra, 113 Conn. 739(‘‘[recognizance bond requirement] must be construed
to apply only to process in actions in which costs are
taxable, since there would be no reason for securing
the payment of costs in an action in which costs could
not in any event be recovered’’). ‘‘Costs are a matter
of statutory regulation, and are not taxable unless given
by statute.’’ Id.General Statutes § 52-257 (a) permits costs to be
taxed in favor of the prevailing party in civil actions
‘‘in which the matter in demand is not less than fifteen
thousand dollars . . . .’’7 Section 52-257 clearly and
unambiguously provides for costs to be taxable in favor
of the prevailing party in civil actions, making no
explicit exceptions for inmates or indigent parties: ‘‘The
prevailing party in any such civil action shall receive
. . . .’’8 (Emphasis added.) General Statutes § 52-257
(a).
The plaintiff’s assertion that these provisions do not
apply to him is based on the following syllogism. In
Bissing v. Turkington, supra, 113 Conn. 740, our
Supreme Court stated: ‘‘If [costs] are not taxable against
the respondent they are not taxable in [the respon-
dent’s] favor against the applicant.’’ The plaintiff then
argues that costs are not taxable against the state
because the legislature did not waive the state’s sover-
eign immunity when it enacted § 52-257. See State v.
Chapman, 176 Conn. 362, 364–66, 407 A.2d 987 (1978).
Because the state’s sovereign immunity prevents the
taxation of costs against the state in this action, the
defendant asserts that the language in Bissing prevents
costs from being taxed against him. Accordingly, he
argues that a recognizance bond is not required in
this case.9
We disagree because the plaintiff takes the language
used by our Supreme Court in Bissing out of context.
Bissing was a habeas corpus proceeding. Although
habeas corpus proceedings are technically civil actions;
see Smith v. Bennett, 365 U.S. 708, 712, 81 S. Ct. 895,
6 L. Ed. 2d 39 (1961) (‘‘habeas corpus may, of course,
be found to be a civil action for procedural purposes’’);
they do not fall within the parameters of § 52-257, which
expressly limits its applicability to civil cases that seek
monetary relief. See General Statutes § 52-257. Mone-
tary relief is not available in habeas proceedings. See
Sanchez v. Warden, 214 Conn. 23, 34, 570 A.2d 673(1990) (stating that standard relief in habeas corpus
action is discharge of prisoner, while standard relief in
§ 1983 action may include compensatory and punitive
damages, injunctive relief, and attorney’s fees). Bissing
held that because there was no statute permitting costs
to be taxable in favor of the prevailing party in a habeas
corpus action, ‘‘there would seem to be no justification
for the taxation of costs in such proceeding, and there-
fore no need for a recognizance for costs.’’ Bissing v.
Turkington, supra, 113 Conn. 740.
The present case, unlike a habeas proceeding, falls
into a category of cases in which the legislature has
specifically authorized the taxation of costs because it
is a civil action ‘‘in which the matter in demand is not
less than fifteen thousand dollars . . . .’’ General Stat-
utes § 52-257 (a). Thus, § 52-257 applies to the plaintiff
and, should the state prevail in this action, he would
be liable to the state to pay the state’s taxable costs.
Accordingly, we conclude that the court properly deter-
mined that the recognizance bond requirement applied
to the plaintiff.
B
The plaintiff argues, in the alternative, that the court
improperly granted the defendants’ motion to dismiss
the official capacity claims on the ground that such a
recognizance bond requirement is unconstitutional, as
applied to him, an indigent inmate, because it denies
him his fundamental right of access to the courts, partic-
ularly his right to challenge the conditions of his con-
finement. Thus, the plaintiff contends that, as applied
to him, the statutes requiring a recognizance bond deny
him due process and equal protection of the law under
the United States constitution.
Although recognizing that the plaintiff has raised a
constitutional challenge, the defendants simply respond
that all statutes are presumed to be constitutional. The
defendants also argue that the plaintiff’s access to the
courts is not unlawfully restricted because of his indi-
gent status, in light of the fact that § 52-185 permits a
plaintiff to avoid actually posting the recognizance bond
by having a ‘‘financially responsible inhabitant of this
state . . . enter into a recognizance to the adverse
party . . . .’’ General Statutes (Rev. to 2013) § 52-185
(a). The defendants, however, do not otherwise address
whether the statute infringes upon the plaintiff’s right
of access to the courts in light of the fact that he is
indigent and incarcerated.
‘‘[I]n evaluating the [plaintiff’s] challenge to the con-
stitutionality of [a] statute . . . [w]e will indulge in
every presumption in favor of the statute’s constitution-
ality . . . .’’ (Internal quotation marks omitted.) State
v. Indrisano, 228 Conn. 795, 805, 640 A.2d 986 (1994).
‘‘It . . . is well established that a validly enacted stat-
ute carries with it a strong presumption of constitution-
ality, [and that] those who challenge its constitutionality
must sustain the heavy burden of proving its unconstitu-
tionality beyond a reasonable doubt. . . . Therefore,
[w]hen a question of constitutionality is raised, courts
must approach it with caution, examine it with care,
and sustain the legislation unless its invalidity is clear.’’
(Internal quotation marks omitted.) Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. 357, 405,
119 A.3d 462 (2015). ‘‘[W]e may also add interpretive
gloss to a challenged statute in order to render it consti-
tutional. In construing a statute, the court must search
for an effective and constitutional construction that
reasonably accords with the legislature’s underlying
intent.’’ (Internal quotation marks omitted.) State v.
Indrisano, supra, 805–806.
With these principles in mind, we turn to the specifics
of this case. The plaintiff raises valid constitutional
concerns regarding the recognizance bond requirement
as applied to him, an indigent inmate. Prisoners have
a fundamental right of access to the courts, including
the right to challenge the conditions of their confine-
ment. See Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.
Ct. 2963, 41 L. Ed. 2d 935 (1974). It is well established
that prisoners have a fundamental constitutional right
of access to the courts, and that such access must be
‘‘adequate, effective and meaningful. . . . Decisions of
the United States Supreme Court have consistently
required [s]tates to shoulder affirmative obligations to
assure all prisoners meaningful access to the courts. It
is indisputable that indigent inmates must be provided
at state expense with paper and pen to draft legal docu-
ments, with notarial services to authenticate them, and
with stamps to mail them. States must forgo collection
of docket fees otherwise payable to the treasury and
expend funds for transcripts. State expenditures are
necessary to pay lawyers for indigent [criminal] defen-
dants at trial . . . and in appeals as of right . . . .’’
(Citations omitted; internal quotation marks omitted.)
Washington v. Meachum, 238 Conn. 692, 735, 680 A.2d
262 (1996). Prisoners possess a right of access not only
to pursue appeals from criminal convictions or to bring
a habeas action, but also to assert civil rights actions
to vindicate their basic constitutional rights, including
challenging the conditions of their confinement under
the eighth amendment to the federal constitution. Wolff
v. McDonnell, supra, 579 (‘‘[i]t is futile to contend that
the Civil Rights Act of 1871 has less importance in our
constitutional scheme than does the Great Writ’’).
In civil cases in which a fundamental right is impli-
cated and judicial recourse is the sole manner of resolv-
ing the dispute, there cannot be a total deprivation of
access to the courts, and a statute conditioning access
to the courts on paying court fees or costs raises signifi-
cant constitutional concerns. See Boddie v. Connecti-
cut, 401 U.S. 371, 382–83, 91 S. Ct. 780, 28 L. Ed. 2d 113(1971) (holding that statute requiring indigent plaintiffs
to pay filing fee to obtain divorce violated due process
because marriage is fundamental interest and plaintiff
can only obtain divorce through judicial system); see
also M.L.B. v. S.L.J., 519 U.S. 102, 123–24, 117 S. Ct.
555, 136 L. Ed. 2d 473 (1996) (holding that statute condi-
tioning civil litigants’ right to appeal a termination of
parental rights on prepayment of costs was unconstitu-
tional as violation of due process and equal protection
because it implicated fundamental interest and resort
to court was sole path for relief); cf. Sosna v. Iowa,
419 U.S. 393, 410, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975)
(limiting Boddie to circumstances where there is total
deprivation of access to the courts to obtain divorce
and holding that access to courts was not denied by
delaying access to divorce); United States v. Kras, 409
U.S. 434, 445–46, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973)
(upholding statute requiring payment of court fees as
condition precedent to discharge in bankruptcy
because no fundamental interest is at stake and resort
to courts is not sole path to securing debt forgiveness).
In the present case, in considering the recognizance
bond statutes and assessing their constitutionality, we
are mindful of these constitutional principles. Sections
52-185 and 52-186 contain no express exception to the
recognizance bond requirement for indigent inmates.
Furthermore, the recognizance bond requirement is not
one of the enumerated fees or costs that can be waived
pursuant to General Statutes § 52-259b if a plaintiff is
found to be indigent and unable to pay.10 In light of the
lack of express authority to waive the recognizance
bond requirement, a handful of our Superior Courts
have held that indigent inmates must comply with the
recognizance bond requirement, regardless of their
inability to pay. See Steinkamp v. Jacque, 36 Conn.
Supp. 37, 38, 410 A.2d 489 (1979) (holding that waiver
of bond for prosecution for indigent defendant is not
permitted); Fellows v. Williams, Superior Court, judi-
cial district of Hartford, Docket No. CV-00-0800686-S,
2000 WL 1655273 (September 27, 2000) (Rittenband,
J.) (no waiver of bond for prosecution for inmate).
These Superior Court decisions, upon which the
defendants rely, have not analyzed whether the recogni-
zance bond requirement as applied to indigent inmates
runs afoul of an inmate’s fundamental right of access
to the courts to challenge the conditions of his or her
confinement. The defendants are correct that § 52-185
authorizes a plaintiff to find another financially respon-
sible person to enter into a recognizance on his behalf,
thereby permitting an indigent plaintiff to avoid having
to pay the recognizance bond out of his own pocket.
This option does not alleviate our constitutional con-
cerns altogether when the indigent plaintiff is incarcer-
ated. An indigent inmate, who has no financial ability
to pay the recognizance bond and lacks access to the
greater world, may not be able to find a ‘‘financially
responsible inhabitant of this state’’; General Statutes
(Rev. to 2013) § 52-185 (a); to turn to for help, and,
thus, would be cut off from accessing the courts to
bring any civil actions that fall within the parameters
of the recognizance bond requirement.11
In order to alleviate the constitutional concerns that
the plaintiff has brought to our attention, we place an
interpretive gloss on §§ 52-185 and 52-186. See State v.
Indrisano, supra, 228 Conn. 805 (placing interpretive
gloss on disorderly conduct statute to eliminate consti-
tutional infirmity). In crafting an effective interpretive
gloss that does not conflict with the legislature’s under-
lying intent, it is instructive to consider decisions of
the federal circuit courts assessing the constitutionality
of the fee provision of the Prison Litigation Reform Act
(PLRA); 28 U.S.C. § 1915;12 which conditions prisoners’
access to the courts on the prepayment of filing fees.
In upholding the constitutionality of the fee provision,
the federal circuit courts have relied heavily on the fact
that the PLRA contains a safety valve provision; 28
U.S.C. § 1915 (b) (4); which ensures that indigent
inmates, who have no means by which to pay the initial
filing fee, are not barred from bringing their civil
actions. See, e.g., Murray v. Dosal, 150 F.3d 814, 818
(8th Cir. 1998) (‘‘[g]iven . . . that the PLRA provides
no prisoner shall be prohibited from bringing an action
‘for the reason that the prisoner has no assets and no
means by which to pay the initial partial filing fee,’ we
agree that the provisions pass constitutional muster’’),
cert. denied, 526 U.S. 1070, 119 S. Ct. 1467, 143 L. Ed.
2d 551 (1999); Tucker v. Branker, 142 F.3d 1294, 1297–99
(D.C. Cir. 1998) (discussing that PLRA has safety valve
to ensure access to courts for fully indigent prisoners);
Hampton v. Hobbs, 106 F.3d 1281, 1284 (6th Cir. 1997)
(upholding § 1915 because it does not deprive inmates
their right of access to courts because of safety valve
provision); see also Taylor v. Delatoore, 281 F.3d 844,
848–49 (9th Cir. 2002) (same).
In placing an interpretive gloss on §§ 52-185 and 52-
186, we note the need for a safety valve that would allow
an indigent inmate, who cannot afford the recognizance
bond and who has no ability to procure a ‘‘financially
responsible inhabitant of this state’’; General Statutes
(Rev. to 2013) § 52-185 (a); willing to enter into one on
his or her behalf, to access the courts. In order to create
such a safety valve, we place a gloss on §§ 52-185 and
52-186 authorizing a trial court to exercise its discretion
to waive the recognizance bond requirement outright
or to significantly reduce the amount of the bond upon
a proper showing of the inmate’s indigency and an
inability to find another financially responsible person
willing to enter into a recognizance bond on his or her
behalf. Truly indigent inmates, at the hearing on the
motion to dismiss for lack of a recognizance bond, can
request a waiver of the bond requirement or request
that a nominal amount be imposed.13 Thus, an indigent
inmate’s path to the courts is not blocked, and his or
her fundamental right of access to the courts is not
implicated, alleviating our constitutional concerns.
Additionally, such a gloss ameliorates any potential
constitutional infirmities because our judicially fash-
ioned safety valve prevents there from being a total
deprivation of access to the courts. In Sosna v. Iowa,
supra, 419 U.S. 410, the United States Supreme Court
upheld a one year residency requirement before permit-
ting state residents to obtain a divorce, reasoning that
although litigants have a right of meaningful access to
the courts to obtain a divorce, this right may be bur-
dened as long as there is not a ‘‘total deprivation’’ of
access. Using similar reasoning, the United States Court
of Appeals for the Tenth Circuit upheld the constitution-
ality of a statute, as applied to an inmate, sanctioning
litigants for frivolous or malicious lawsuits because a
prisoner’s constitutional right of access to the courts
can be limited as long as there is not a ‘‘total depriva-
tion’’ of access to the courts. Green v. Price, Docket
Nos. 95-1079, 95-1080, 1996 WL 56075 (10th Cir. Febru-
ary 9, 1996) (decision without published opinion, 76
F.3d 392 [10th Cir. 1996]). Similarly, with the interpre-
tive gloss that we place on §§ 52-185 and 52-186, the
recognizance bond requirement does not totally deprive
indigent inmates of access to the courts to challenge
the conditions of their confinement; rather, they can
still bring their lawsuits upon a proper showing of indi-
gency at the hearing on the motion to dismiss or at a
requested hearing on the appropriate amount of bond.
Furthermore, such an interpretive gloss does no vio-
lence to §§ 52-185 and 52-186. These statutes are silent
as to whether they authorize a trial court to waive
the recognizance bond requirement, and certainly they
include no express language that prevents a trial court
from doing so. Although they do provide that a trial
court may order a ‘‘sufficient’’ bond amount after con-
sidering the potential taxable costs pursuant to § 52-
257; General Statutes (Rev. to 2013) § 52-186; arguably
implying that an outright waiver of the recognizance
bond is not permitted, our interpretive gloss is neces-
sary to avoid constitutional jeopardy.14
Not only does our interpretive gloss do no violence
to §§ 52-185 and 52-186, it is also in accord with the
current revision of § 52-185.15 See General Statutes (Rev.
to 2015) § 52-185, as amended by Public Acts 2015,
No. 15-85, § 14. According to the Office of Legislative
Research, the amendments to § 52-185 ‘‘[replace] cer-
tain provisions requiring a [recognizance] bond . . .
with new provisions prohibiting them, unless a court
finds good cause . . . .’’16 Office of Legislative
Research, Connecticut General Assembly, Bill Analysis,
Senate Bill No. 1033. In amending § 52-185 and in repeal-
ing § 52-186, the legislature has significantly narrowed
the number of civil cases in which a recognizance bond
is required and has provided the trial court with greater
discretion in determining whether a recognizance bond
is necessary. Thus, as amended, § 52-185 lends support
to the interpretive gloss that we place on General Stat-
utes (Rev. to 2013) §§ 52-185 and 52-186.
Further, although the plaintiff does have a fundamen-
tal right of access to the courts to challenge the condi-
tions of his confinement and to vindicate deprivations
of his civil rights, with the gloss that we place on §§ 52-
185 and 52-186 permitting waiver of the recognizance
bond, we determine that the possibility for deprivation
of that right has been ameliorated. Because the recogni-
zance bond requirement with our interpretive gloss
does not impinge on a fundamental right, we conclude
that these statutes pass constitutional muster under
due process and equal protection review.17
Having added this interpretive gloss to §§ 52-185 and
52-186, which the trial court did not consider, we find
it necessary to remand the case to the trial court for a
hearing to consider the plaintiff’s request, made before
the trial court, for a waiver.
The judgment is reversed only as to the dismissal of
the plaintiff’s causes of action against the defendants
in their in official capacities and the case is remanded
for a hearing consistent with this opinion to consider
the plaintiff’s request for a waiver of his obligation to
post a recognizance bond. The judgment is affirmed in
all other respects.
In this opinion the other judges concurred.
1
According to the plaintiff’s complaint, the defendants are nine state
employees. Eight of the nine defendants were employed by the University
of Connecticut Correctional Managed Healthcare Program and provided
medical services to inmates at the MacDougall-Walker Correctional Institu-
tion: Racquel Lightner, Dr. Pillai, Dr. O’Hallaran, CN Vecchairelli, Dr. Naqui,
PA Rob, LPN Francis, and Lisa Caldonero. The remaining defendant, Lieuten-
ant Williams, was employed by the Department of Correction and was a
lieutenant at the MacDougall-Walker Correctional Institution.
2
We note that since the commencement of this action, § 52-185 has been
amended, effective October 1, 2015. See Public Acts 2015, No. 15-85, § 14.
Because the current revision of the statute is substantively different from
its previous revision and was not in effect at the time that the trial court
decided the motion to dismiss, our analysis pertains to the revision of the
statute in effect at that time. Thus, all references to § 52-185 are to the
revision that was in effect at that time, unless otherwise indicated.
3
We note that § 52-186, although in effect at the time of the motion to
dismiss, has since been repealed, effective October 1, 2015. See Public Acts
2015, No. 15-85, § 27. Because the statute was in effect at the time that the
motion to dismiss was decided, it is part of our analysis.
There are a number of provisions of our rules of practice that implement
§§ 52-185 and 52-186. See Practice Book §§ 8-3 through 8-12. Although the
plaintiff mentions Practice Book § 8-4, he does not separately analyze any
of the relevant provisions of the rules of practice. Because the recovery of
costs and the need for a recognizance bond to secure those costs are
primarily legislative matters; see Bissing v. Turkington, 113 Conn. 737, 739,
157 A. 226 (1931) (taxation of costs is matter of statutory regulation and
recognizance bond required only if costs are taxable); our analysis focuses
on the meaning and import of the statutes.
4
The plaintiff’s complaint specifically indicates that the plaintiff is suing
the defendants in their individual capacities but is silent as to whether he
is also suing them in their official capacities. The defendants and the trial
court treated the complaint as if the defendants were being sued in both
their official capacities and individual capacities.
5
In his brief, the plaintiff discusses only § 52-185. Section 52-186, however,
also is part of the statutory scheme governing recognizance bonds and,
thus, a discussion of this statute is necessary to a complete analysis of the
plaintiff’s argument.
6
The plaintiff also makes the following public policy argument, contending
that the recognizance bond requirement should not apply to him because
he is an indigent inmate challenging the conditions of his confinement: ‘‘A
challenge to an [inmate’s] conditions of confinement is not of the category
of cases wherein costs may be taxed against the plaintiff. The underlying
philosophy being that to do so would be to paralyze, and erect a barrier to
an inmate’s ability to challenge the very force that restrains them, and denies
them an ability to insist on the most civilized treatment . . . .’’ We construe
this contention as an argument in support of the plaintiff’s constitutional
claim, rather than as part of his statutory construction claim. Moreover, the
plaintiff’s public policy concerns are mitigated by our construction of §§ 52-
185 and 52-186, and, thus, we are not persuaded by them. See part II B of
this opinion.
7
General Statutes § 52-257 provides in relevant part: ‘‘(a) The fees of
parties in civil actions in which the matter in demand is not less than fifteen
thousand dollars . . . . The prevailing party in any such civil action shall
receive, by way of indemnity, the following sums: (1) For all proceedings
before trial, fifty dollars; (2) for the trial of an issue of law or fact, seventy-
five dollars, but if more than one issue of fact is tried at one time, only one
trial fee shall be allowed; and (3) in difficult or extraordinary cases in the
Superior Court, where a defense has been interposed, a further allowance,
in the discretion of the court, not to exceed two hundred dollars.
‘‘(b) Parties shall also receive: (1) For each witness attending court, the
witness’ legal fee and mileage; (2) for each deposition taken out of the state,
forty dollars, and for each deposition within the state, thirty dollars . . .
(5) for maps, plans, mechanical drawings and photographs, necessary or
convenient in the trial of any action, a reasonable sum; (6) for copies of
records used in evidence, bonds, recognizances and subpoenas, court and
clerk’s fees; (7) for the signing and service of process, the legal fees payable
therefor, except that a fee shall not be allowed for the return of a subpoena
to court; (8) the actual expense incurred in publishing orders of notice
under direction of the court; (9) for each interpreter necessarily employed
in the trial of any civil action, twenty dollars per diem; (10) for premiums
upon all bonds or undertakings provided pursuant to statute, rule of court,
order of court or stipulation of parties, including bonds in lieu of or in
release or dissolution of attachment, the actual amount paid, not exceeding
a reasonable amount; (11) documented investigative costs and expenses,
not exceeding the sum of two hundred dollars; and (12) for the recording,
videotaping, transcribing and presentation of the deposition of a practitioner
of the healing arts, as defined in section 20-1, dentist, registered nurse,
advanced practice registered nurse or licensed practical nurse, as defined
in section 20-87a, or real estate appraiser that is used in lieu of live testimony
in the civil action, the reasonable expenses incurred. . . .’’
8
Although General Statutes § 52-259b (a) provides for waiver of ‘‘fees
payable to the court’’ and/or the cost of service of process if the court finds
a party to be indigent and unable to pay, § 52-259b does not waive any other
litigation related costs.
9
Carried to its logical conclusion, the plaintiff’s argument would mean
that the state is never entitled to the taxation of costs when it prevails in
a case because sovereign immunity prevents costs from ever being taxed
against it. We discern no language in any of these statutes that would suggest
that the legislature intended to deprive the state of its right to receive costs
in civil actions in which it prevails. Moreover, the plaintiff has not cited a
single case that would support such a remarkable proposition.
10
General Statutes § 52-259b provides in relevant part: ‘‘(a) In any civil
or criminal matter, if the court finds that a party is indigent and unable to
pay a fee or fees payable to the court or to pay the cost of service of process,
the court shall waive such fee or fees and the cost of service of process
shall be paid by the state. . . .’’
11
Though not discussed by the defendants, we also note that there is an
alternative means by which the plaintiff may access the courts to challenge
the conditions of his confinement: he may file a habeas petition challenging
the conditions of his confinement, which does not require the posting of a
recognizance bond because costs are not taxable in a habeas proceeding.
See Bissing v. Turkington, supra, 113 Conn. 740. This alternative avenue
by which the plaintiff may challenge the conditions of his confinement,
however, is not sufficient in and of itself to alleviate our constitutional
concerns because the recognizance bond requirement applies to all civil
actions in which costs are taxable in favor of the prevailing party pursuant
to § 52-257. As stated previously, inmates have a right to bring civil rights
actions to vindicate their constitutional rights, which includes, but is not
limited to, the right to challenge the conditions of their confinement. See
Wolff v. McDonnell, supra, 418 U.S. 579. Therefore, although there is an
alternative path for inmates to access the courts to challenge the conditions
of their confinement, that option does not altogether alleviate our constitu-
tional concerns regarding the preconditioning of indigent inmates’ access
to the courts on the payment of a recognizance bond.
Additionally, a civil action challenging an inmate’s conditions of confine-
ment pursuant to 42 U.S.C. § 1983 is distinct from a habeas proceeding that
is brought to challenge the conditions of confinement because compensatory
and punitive damages are available in a § 1983 civil action, but are not
available in a habeas proceeding. See id., 554 (‘‘habeas corpus is not an
appropriate or available remedy for damages claims, which . . . could be
pressed under § 1983 along with suits challenging the conditions of confine-
ment rather than the fact or length of custody’’).
12
Title 28 of the United States Code, § 1915, provides in relevant part:
‘‘(a) . . . . (2) A prisoner seeking to bring a civil action or appeal a judgment
in a civil action or proceeding without prepayment of fees or security there-
for, in addition to filing the affidavit filed under paragraph (1), shall submit
a certified copy of the trust fund account statement (or institutional equiva-
lent) for the prisoner for the 6-month period immediately preceding the
filing of the complaint or notice of appeal, obtained from the appropriate
official of each prison at which the prisoner is or was confined. . . .
‘‘(b) (1) Notwithstanding subsection (a), if a prisoner brings a civil action
or files an appeal in forma pauperis, the prisoner shall be required to pay
the full amount of a filing fee. The court shall assess and, when funds exist,
collect, as a partial payment of any court fees required by law, an initial
partial filing fee of 20 percent of the greater of—
‘‘(A) the average monthly deposits to the prisoner’s account; or
‘‘(B) the average monthly balance in the prisoner’s account for the 6-
month period immediately preceding the filing of the complaint or notice
of appeal.
‘‘(2) After payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding month’s
income credited to the prisoner’s account. The agency having custody of
the prisoner shall forward payments from the prisoner’s account to the clerk
of the court each time the amount in the account exceeds $10 until the
filing fees are paid. . . .
‘‘(4) In no event shall a prisoner be prohibited from bringing a civil action
or appealing a civil or criminal judgment for the reason that the prisoner
has no assets and no means by which to pay the initial partial filing fee. . . .’’
13
It is, of course, the indigent inmate’s burden to prove that he is indigent
and that he cannot afford the amount of bond requested by the defendants.
It is also the inmate’s burden to request a hearing as to the amount of bond
if such a hearing is desired.
14
Although the allowance in § 52-185 for a plaintiff not to pay the recogni-
zance bond from his own funds and instead to find a ‘‘financially responsible
inhabitant of this state’’ to enter into a recognizance on his behalf does
not alleviate our constitutional concerns regarding the recognizance bond
requirement as applied to indigent inmates, it is a relevant factor to be taken
into consideration by a trial court when deciding whether it should waive
the recognizance bond or substantially reduce the bond amount.
15
The current revision of General Statutes (Rev. to 2015) § 52-185, as
amended by Public Acts 2015, No. 15-85, § 14, provides in relevant part: ‘‘No
bond or recognizance for prosecution is required from a party in any civil
action unless the judicial authority, upon motion and for good cause shown,
finds that a party is not able to pay the costs of the action and orders that
the party give a sufficient bond or enter into a recognizance to an adverse
party with a financially responsible person to pay taxable costs. In determin-
ing the sufficiency of the bond or recognizance, the judicial authority shall
consider only the taxable costs which the party may be responsible for
under section 52-257 . . . .’’ (Emphasis added.)
16
In testifying on behalf of the Judicial Branch in favor of amending § 52-
185, the Honorable Patrick L. Carroll III, the deputy chief court administrator,
stated that a recognizance bond ‘‘unnecessarily increases the burden on
self-represented [plaintiffs] . . . and does not provide any realistic security
for costs of an action.’’ Judiciary Committee public hearing, concerning
Senate Bill No. 1033 (April 1, 2015), testimony of Judge Carroll.
17
If no fundamental right is implicated, the challenged legislation is subject
to evaluation for substantive due process and equal protection purposes
under the rational basis test. Federal Communications Commission v.
Beach Communications, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed.
2d 211 (1993); Reno v. Flores, 507 U.S. 292, 305, 113 S. Ct. 1439, 123 L. Ed.
2d 1 (1993). The plaintiff has only briefed his due process and equal protec-
tion claims on the basis of a fundamental right being violated. The plaintiff
has failed to brief whether the recognizance bond requirement passes the
rational basis test, should we find that no fundamental right is at stake. In
light of this inadequate briefing, we decline to address this issue. See Clelford
v. Bristol, 150 Conn. App. 229, 233, 90 A.3d 998 (2014).