Townsend v. Sterling ( 2015 )

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TIMOTHY TOWNSEND, JR. v. YADIRA
STERLING ET AL.
(AC 36619)
Lavine, Mullins and Bishop, Js.
Argued February 20—officially released June 9, 2015
(Appeal from Superior Court, judicial district of
Hartford, Wahla, J.)
Timothy Townsend, Jr., self-represented, the appel-
lant (plaintiff).
Neil Parille, assistant attorney general, with whom,
on the brief, was George Jepsen, attorney general, for
the appellees (defendants).
Opinion
LAVINE, J. Although prisoners lack a due process
liberty interest against administrative segregation, they
‘‘retain other protection from arbitrary state action even
within the expected conditions of confinement. They
may invoke the First and Eighth Amendments and the
Equal Protection Clause of the Fourteenth Amendment
where appropriate, and may draw upon internal prison
grievance procedures and state judicial review where
available.’’ Sandin v. Conner, 515 U.S. 472, 487–88 n.11,
115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995).
The self-represented plaintiff, Timothy Townsend,
Jr., appeals from the summary judgment rendered by
the trial court in favor of the defendants.1 On appeal,
the plaintiff claims that the court improperly deter-
mined that he did not have a liberty interest with respect
to the prison disciplinary sanctions imposed against
him and improperly granted summary judgment in favor
of the defendants.2 We affirm, in part, and reverse, in
part, the judgment of the trial court.
The plaintiff commenced this action in November,
2007, and filed several amended complaints. The opera-
tive amended complaint is dated October 11, 2011. The
plaintiff, who was at all times relevant incarcerated
in the MacDougall-Walker Correctional Institution in
Suffield, alleged that the action was commenced pursu-
ant to 42 U.S.C. §§ 1983 and 1988. The plaintiff also
alleged that the defendants violated his right to due
process secured by the fourteenth amendment to the
United States constitution and article first, § 20, of the
constitution of Connecticut, and the rules of the Depart-
ment of Correction, specifically, administrative direc-
tives 2.17, 9.5, and others.
In support of his claims, the plaintiff alleged the fol-
lowing facts. On May 19, 2007, the defendant Ed Hernan-
dez issued a disciplinary report (ticket) against the
plaintiff for disobeying a direct order. The plaintiff took
the ticket to a hearing conducted by the defendant
Yadira Sterling on June 14, 2007. He alleged that Sterling
‘‘filled in for the original hearing officer who is the
‘normal’ disciplinary hearing officer.’’ At the hearing,
the plaintiff was not permitted to call any witnesses or
to present documentary evidence. Sterling found the
plaintiff guilty, and sentenced him to ten days in puni-
tive segregation and fifteen days confinement to
quarters.
The plaintiff appealed Sterling’s guilty finding with
the assistance of his mental health social worker, who
placed the appeal in the prison’s ‘‘appeal box’’ on or
about June 20, 2007. The defendant Wayne T. Choinski
denied the plaintiff’s appeal on August 14, 2007. Choin-
ski addressed only four of the issues submitted by the
plaintiff in the appeal.
him due to the fact that he had served her with a writ
of mandamus on May 22, 2007. The other defendants
also were served with the writ of mandamus, which,
the plaintiff alleged, fueled a conspiracy to retaliate
against him by depriving him of his right to due process.3
In his prayer for relief, the plaintiff sought an injunc-
tion compelling the defendants to create an indepen-
dent oversight board to review disciplinary reports, also
known as tickets, and institutional due process. He also
prayed for compensatory and punitive damages from
the defendants in their individual capacities, and com-
pensatory damages for the loss of his personal property.
The defendants denied each paragraph of the
amended complaint4 and alleged five special defenses.5
On September 11, 2013, the defendants filed a motion
for summary judgment in which they represented that
the plaintiff had alleged that the defendants ‘‘gave him
a Disciplinary Report without the Due Process allegedly
required by the United States Constitution and contrary
to the mandates of the Department of Correction’s
Administrative Directives.’’ The defendants’ motion for
summary judgment was predicated on their understand-
ing of the factual basis of the plaintiff’s cause of action,
i.e., ‘‘on or about May 17, 2007, the [Department of
Correction] issued a Disciplinary Report [ticket] . . .
for Disobeying a Direct Order, for which he was found
guilty. . . . He further alleges that he was not given
due process allegedly required by [the applicable]
Administrative Directive . . . . [Department of Cor-
rection] records indicate that the plaintiff received this
[Disciplinary Report] on May 19, 2007, and that he
received sanctions of: (1) punitive segregation for ten
. . . days; and (2) confinement to quarters for fifteen
. . . days. The plaintiff did not lose good time [credits]
as a result of this ticket.’’ (Citations omitted.) The defen-
dants did not challenge the factual allegations of the
amended complaint, but claimed that the allegations
were legally insufficient.
In the memorandum of law accompanying the motion
for summary judgment, the defendants argued that
because the plaintiff did not lose any good time credit,
he was not deprived of the right to due process by not
being able to appeal the ticket he was given for having
disobeyed the order from Hernandez.6 Moreover, they
argued that punitive segregation, confinement to quar-
ters, and loss of telephone privileges do not affect any
protected liberty interest, citing Santiago v. Commis-
sioner of Correction, 39 Conn. App. 674, 680, 667 A.2d
304 (1995). Because the plaintiff did not lose any good
time credit, the defendants continued, there was no
reason for the court to order the defendants to expunge
the ticket from the plaintiff’s record.
The defendants also argued that Choinski’s failure to
respond to the plaintiff did not create a cause of action,
citing Fernandez v. Armstrong, Docket No. 3:02cv2252
(CFD), 2005 U.S. Dist. LEXIS 4958, *26 (D. Conn. March
30, 2005) (‘‘[t]his district has previously held that failure
of a correctional official to comply with the institutional
grievance procedures is not cognizable in an action
filed pursuant to 42 U.S.C. § 1983, unless the action
caused the denial of a constitutionally or federally pro-
tected right’’). The defendants also argued that the
plaintiff was not entitled to injunctive relief in the form
of an independent oversight board, citing Overton v.
Bazzetta, 539 U.S. 126, 132, 123 S. Ct. 2162, 156 L. Ed.
2d 162 (2003).7
The plaintiff opposed the defendants’ motion for sum-
mary judgment, claiming that not only were there genu-
ine issues of material fact that needed to be determined,8
but also that the defendants’ claims were legally incor-
rect. He argued that his cause of action was broader
than the liberty issue of whether he lost good time
credit and that a prisoner may state a claim for violation
of due process when the prisoner’s liberty interest at
issue is independently protected by the constitution,
citing Sandin v. Conner, supra, 515 U.S. 472. He also
argued that the first amendment forbids prison officials
from retaliating against a prisoner for the exercise of
the right to free speech, citing Crawford-El v. Britton,
523 U.S. 574, 588 n.10, 118 S. Ct. 1584, 140 L. Ed. 2d
759 (1998) (retaliation offends constitution in that it
threatens to inhibit exercise of protected right).
The plaintiff contended that a prima facie case of
first amendment retaliation is established when ‘‘(1)
. . . the speech or conduct at issue was protected, (2)
. . . the defendant[s] took adverse action against the
plaintiff, and (3) . . . there is a causal connection
between the protected speech and the adverse action.’’
(Internal quotation marks omitted.) Morales v. Mack-
alm, 278 F.3d 126, 131 (2d Cir. 2002). The plaintiff cited
the following factual allegations underlying his retalia-
tion claim: the defendant Pablo Correa destroyed his
boom box in response to the dismissal of a ticket the
plaintiff had received for having made a threatening
statement; the defendant Robert Jasnec gave the plain-
tiff a ticket for interfering after the plaintiff complained
to Lieutenant Allen about needing a coat for outdoor
recreation; the defendant Maureen Berube-Allen, a cor-
rection officer assigned to investigate disciplinary
reports, denied the plaintiff the right to call Allen as a
staff witness; the defendant Maribel Berrios denied the
plaintiff the right to make telephone calls because the
plaintiff previously had filed a complaint against Her-
nandez; and Sterling was not an impartial hearing offi-
cer. See footnote 3 of this opinion.
The court granted the defendants’ motion for sum-
mary judgment in a memorandum of decision issued
on February 18, 2014. The court concluded that the
defendants did not violate the plaintiff’s rights to due
process because the plaintiff had no liberty interest
that was infringed by the issuance of the ticket from
Hernandez, which did not result in the loss of good
time credit. The court also concluded that the ticket
need not be expunged because a prisoner does not have
a liberty interest in remaining free from tickets that do
not result in the loss of good time credit. Finally, the
court concluded that it had no authority to create an
oversight board to ensure that the Department of Cor-
rection provides prisoners due process. The court did
not address the plaintiff’s retaliation, free speech, or
property loss claims. The plaintiff filed a motion for
articulation, which the court denied.9 The plaintiff, how-
ever, failed to file a motion for review.
The plaintiff thereafter appealed to this court, claim-
ing that the trial court improperly granted the defen-
dants’ motion for summary judgment. See footnote 1
of this opinion. We agree and conclude that the court
improperly granted the defendants’ motion for sum-
mary judgment, save for that portion of the judgment
regarding the plaintiff’s request for an injunction. We
agree that the court had no jurisdiction to appoint an
independent oversight board over the Department of
Correction. We further conclude that the court improp-
erly granted summary judgment on the entire complaint
because it failed to address the plaintiff’s claims for
damages.
We begin with the well known standard of review
applicable to summary judgment. Practice Book § 17-
49 provides that summary judgment ‘‘shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter law.’’ ‘‘In deciding a motion for
summary judgment, the trial court must view the evi-
dence in the light most favorable to the nonmoving
party. . . . The party moving for summary judgment
has the burden of showing the absence of any genuine
issue of material fact and that the party is, therefore,
entitled to judgment as a matter of law. . . . On appeal,
we must determine whether the legal conclusions
reached by the trial court are legally and logically cor-
rect and whether they find support in the facts set out
in the memorandum of decision of the trial court. . . .
Our review of the trial court’s decision to grant the
defendant’s motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) Byrne v. Grasso,
118 Conn. App. 444, 447–48, 985 A.2d 1064 (2009), cert.
denied, 294 Conn. 934, 987 A.2d 1028 (2010).
The first issue for this court to determine is whether
the trial court properly concluded that the defendants
did not violate the plaintiff’s due process rights because
he did not lose any good time credit when he was
sanctioned for disobeying a direct order. ‘‘The four-
teenth amendment provides, in part, nor shall any State
deprive any person of life, liberty or property, without
due process of law . . . . The interest at stake in the
present proceeding is [the plaintiff’s] liberty interest.
There are two elements which must be established in
order to find a due process violation. First, because not
every liberty interest is protected, [the plaintiff] must
establish that he has a liberty interest that comes within
the ambit of the fourteenth amendment. . . . If it is
determined that a protected liberty is implicated, then
the second element that must be addressed is what
procedural protections are due.’’ (Citations omitted;
internal quotation marks omitted.) State v. Patterson,
236 Conn. 561, 568–69, 674 A.2d 416 (1996).
‘‘[T]o state a claim for denial of procedural due pro-
cess . . . a prisoner must allege that he possessed a
protected liberty interest, and was not afforded the
requisite process before being deprived of that liberty
interest.’’ Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.
2000). ‘‘A [prisoner] has no right to due process [at his
disciplinary hearing] unless a liberty interest has been
deprived . . . .’’ (Citation omitted; internal quotation
marks omitted.) Coleman v. Commissioner of Correc-
tion, 111 Conn. App. 138, 141, 958 A.2d 790 (2008),
cert. denied, 290 Conn. 905, 962 A.2d 793 (2009). ‘‘To
constitute a deprivation of liberty, a restraint must have
imposed an atypical and significant hardship . . . in
relation to the ordinary incidents of prison life. . . .
Additionally, the [prisoner] must establish that the state
has granted its inmates, by regulation or by statute, a
protected liberty interest in remaining free from that
confinement or restraint.’’ (Citation omitted; internal
quotation marks omitted.) Id., 141–42.
In the present case, the plaintiff alleges that the defen-
dants retaliated against him for the exercise of his right
to free speech. ‘‘In order to state an actionable claim for
retaliation, [the plaintiff] must advance non-conclusory
allegations establishing: (1) that the speech or conduct
at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there
was a causal connection between the protected speech
and the adverse action.’’ (Internal quotation marks omit-
ted.) Morales v. Mackalm, supra, 278 F.3d 131. The
essence of the plaintiff’s allegations is that the defen-
dants retaliated against him for filing a grievance.10 As
such, the plaintiff has alleged facts that the defendants’
retaliation had a chilling effect on his first amendment
rights to free speech, a protected liberty interest. See
Crawford-EL v. Britton, supra, 523 U.S. 588 n.10. The
trial court therefore improperly rendered summary
judgment on the ground that the plaintiff had no liberty
interest in being free from tickets that did not result in
the loss of good time credit.11 The summary judgment
on this ground is reversed and the case is remanded to
the trial court so that discovery may proceed.
We also agree that the court improperly rendered
summary judgment as to the entire amended complaint.
The court failed to consider the plaintiff’s state law
claims concerning the loss of his property, i.e., his
boom box.
As to the plaintiff’s claim related to his injunction
request for an independent oversight board to ensure
that the Department of Correction provides prisoners
due process, the court properly rendered summary
judgment in favor of the defendants on that claim.
‘‘[C]ourts are particularly ill equipped to deal with
[prison] problems . . . .’’ (Citation omitted; internal
quotation marks omitted.) Shaw v. Murphy, 532 U.S.
223, 229, 121 S. Ct. 1475, 149 L. Ed. 2d 420 (2001).
‘‘Running a prison is an inordinately difficult undertak-
ing that requires expertise, planning, and the commit-
ment of resources, all of which are peculiarly within
the province of the legislative and executive branches
of government. Prison administration is . . . a task
that has been committed to the responsibility of those
branches, and separation of powers concerns counsel
a policy of judicial restraint.’’ Turner v. Safley, 482 U.S.
78, 84–85, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).
The judgment with regard to injunctive relief and
the claimed failure to follow Department of Correction
administrative directives is affirmed. The remainder of
the judgment is reversed and the case, as it relates to
the tort and § 1983 discrimination claims, is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
The defendants were at all times relevant employees of the Department of
Correction: Yadira Sterling, disciplinary report adjudicator; Maureen Berube-
Allen, disciplinary report investigator; Wayne T. Choinski, former Northern
District Administrator; and Pablo Correa, correction officer; Maribel Berrios,
correction officer; Ed Hernandez, correction officer; and Robert Jasnec,
correction officer.
2
In his brief, the plaintiff identified the following issues on appeal: (1)
‘‘the trial court erred when holding that the plaintiff had no right to be free
from retaliation, in the form of a [ticket], for participating in protected
conduct’’; (2) ‘‘whether the trial court was correct in considering issues not
properly before it’’; and (3) ‘‘whether the trial court properly granted qualified
immunity, when that claim was never raised by the defendants in their
motion for summary judgment.’’
A more accurate statement of the plaintiff’s second claim is that the
court improperly dismissed his entire cause of action, including claims not
addressed by the defendants in their motion for summary judgment.
We reject the plaintiff’s third claim. The trial court did not use the term
qualified immunity or address that legal defense in its memorandum of
decision.
3
The plaintiff also alleged a longer history of tickets and retaliatory interac-
tion with the defendants. A detailed recitation of these allegations is neces-
sary to put the plaintiff’s claims in context. On the night of November 14,
2006, the defendant Pablo Correa, a correction officer, accused the plaintiff
of having made a threatening statement and issued the plaintiff a ticket for
threatening. The plaintiff was placed in the restrictive housing unit. The
threatening ticket, however, was dismissed eighteen days later when a staff
witness came forward and revealed that Correa randomly had picked the
plaintiff ‘‘to take the fall’’ and to be made an example. When the plaintiff
was released from the restrictive housing unit, he discovered that his boom
box had been destroyed.
The plaintiff also alleged that on November 22, 2006, the defendant Robert
Jasnec, a correction officer, came to the plaintiff’s cell in the restrictive
housing unit and asked him if he wanted to go outdoors for recreation.
When the plaintiff stated that he wanted to go outdoors, Jasnec informed
him that there was no coat available for him to wear and that it was cold
outside. If the plaintiff went outside, he would have to stay out for the entire
one hour recreation period. The plaintiff questioned where the coats were,
and Jasnec stated that they were in the laundry. The plaintiff saw a laundry
worker and asked why the coats were being washed. The laundry worker
allegedly stated that coats were not washed in the winter, only in the months
when they are not needed, i.e., summer. Jasnec became angry with the
plaintiff, and returned him to his cell, thereby denying him outdoor recre-
ation. Correction Officer Bogalhas accompanied Jasnec as he returned the
plaintiff to his cell.
Two hours later, while Lieutenant Allen was touring the restrictive housing
unit, the plaintiff informed him of his interaction with Jasnec. Allen stated
to the plaintiff that coats always were available for outdoor recreation.
Jasnec then stated to Allen that he had intended to look for a coat for the
plaintiff after he had placed the plaintiff outdoors. The plaintiff informed
Allen that that was not the case. The plaintiff alleged that one hour after
Allen had left the restrictive housing unit, Jasnec gave him a ticket for
interfering with safety and security (interfering ticket) because he had
‘‘attempted to snatch away from Jasnec and leave’’ the restrictive housing
unit to look for a coat.
The plaintiff further alleged that the defendant, Maureen Berube-Allen, a
correction officer assigned to investigate disciplinary reports, came to see
him about the interfering ticket on November 22, 2006. The plaintiff
requested that Allen be called as a staff witness at the hearing, but Berube-
Allen refused to allow Allen to be called as a witness. The plaintiff, therefore,
refused to sign the investigative report and told Berube-Allen that he would
have his advocate interview Allen. When the plaintiff’s advocate, Boland,
interviewed the plaintiff on November 28, 2006, Boland informed the plaintiff
that Allen could not be listed as a witness. The plaintiff, therefore, refused
to sign the advocate investigation report.
At the hearing on the interfering ticket, the plaintiff informed Sterling,
the hearing officer, that he was denied the right to call Allen as a staff
witness. Sterling stated that it was too late to call Allen. The plaintiff alleged
that Berube-Allen stated to him that ‘‘you’re going to beat the ‘threats’
[ticket], but we’re not going to let you win’’ the interfering ticket. Berube-
Allen attempted to persuade the plaintiff to plead guilty to the interfering
ticket. On November 30, 2006, Sterling found the plaintiff guilty as to the
interfering ticket.
The plaintiff filed an appeal after being found guilty as to the interfering
ticket. According to the plaintiff, Berube-Allen collected the appeal form
from the prison’s ‘‘appeal box,’’ but never processed or forwarded it to
the district administrator. The plaintiff filed a complaint and was given
permission to file another appeal form. The plaintiff claims that his second
appeal form was not processed and that Berube-Allen was responsible for
collecting and recording disciplinary appeal forms.
In February, 2007, the plaintiff sent a letter to the defendant Wayne T.
Choinski, former Northern District Administrator, informing him that
Berube-Allen had not processed his interfering appeal form. The plaintiff
explained the grounds for his appeal. The plaintiff alleged that he had reason
to believe that Choinski received his correspondence but that Choinski did
nothing to remedy the due process violation.
The plaintiff also alleged that in April, 2007, Maribel Berrios, a correction
treatment officer, refused to permit him to make a telephone call because
she did not like it that he had filed a grievance against Hernandez. According
to the plaintiff, Berrios took it upon herself to deny him telephone privileges
and to delay his receipt of personal care items to avenge his grievance
against Hernandez.
4
The complaint is pleaded in the style of complaints filed in the United
States District Court.
5
The defendants alleged five special defenses: (1) the court lacked jurisdic-
tion because the defendants are immune from suit pursuant to General
Statutes § 4-165; (2) the complaint failed to state a claim for which relief
may be granted; (3) the plaintiff failed to obtain permission to sue the state
pursuant to General Statutes § 4-160 (b); (4) as to the equitable relief and
money damages the plaintiff sought, the court lacked subject matter jurisdic-
tion pursuant to the doctrine of sovereign immunity; and (5) the plaintiff
failed to exhaust his administrative remedies.
6
A prisoner may be deprived of good time credit only if the prisoner is
offered procedural due process protection. See Mitchell v. Commissioner
of Correction, 94 Conn. App. 210, 217, 893 A.2d 445, cert. denied, 278 Conn.
917, 899 A.2d 622 (2006), citing Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.
Ct. 2963, 41 L. Ed. 2d 935 (1974), and Jolley v. Commissioner of Correction,
60 Conn. App. 560, 561, 760 A.2d 146 (2000), cert. denied, 274 Conn. 913,
879 A.2d 892 (2005).
7
The defendants’ motion for summary judgment and memorandum of law
did not address the plaintiff’s free speech, retaliation, or personal prop-
erty claims.
8
His memorandum of law in support of his objection to the defendants’
motion for summary judgment made clear that the defendants failed to
submit affidavits or other evidence to demonstrate the absence of a genuine
issue of material fact.
9
In his motion for articulation, the plaintiff asked the court to articulate
the ground for granting summary judgment in favor of Correa, who was
being sued for retaliatory destruction of property and filing a false ticket,
which are two distinct claims the court did not address. He also asked the
court to articulate the basis for granting summary judgment in favor of
Berrios, whom he sued for her part in allegedly failing to let him make a
telephone call for nearly one month after he filed a grievance against Her-
nandez.
10
In his appellate brief, the plaintiff acknowledges that his amended com-
plaint did not explicitly allege that the defendants violated his first amend-
ment right to free speech. He argues, however, that it was not legally
necessary to do so as long as he pleaded facts demonstrating that he ‘‘was
subject to adverse action as a result of engaging in protected speech.’’ See
Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).
We agree that the amended complaint is not artfully pleaded. The plaintiff,
however, has represented himself throughout the proceedings, and ‘‘[i]t is
the established policy of the Connecticut courts to be solicitous of [self-
represented] litigants and when it does not interfere with the rights of
other parties to construe the rules of practice liberally in favor of the
[self-represented] party.’’ (Internal quotation marks omitted.) Solomon v.
Connecticut Medical Examining Board, 85 Conn. App. 854, 861, 859 A.2d 932(2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005). We have reviewed the
allegations of his amended complaint and conclude that the plaintiff alleged
facts that were sufficient to put the defendants on notice that he was claiming
that they had retaliated against him for filing a grievance, in violation of his
right to free speech. See footnote 3 of this opinion. Compare Austin v.
Terhune, supra, 367 F.3d 1171 (complaint did not expressly refer to first
amendment but alleged facts that plaintiff was punished for filing grievance).
11
During oral argument before this court, counsel for the defendants
acknowledged that a prisoner has a liberty interest in the rights guaranteed
under the first amendment.