Taylor v. Commissioner of Correction ( 2022 )

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DAVID TAYLOR v. COMMISSIONER
OF CORRECTION
(AC 44665)
Prescott, Suarez and Bishop, Js.
Syllabus
The petitioner, a citizen of the United Kingdom who had been convicted of
murder, sought a writ of habeas corpus, claiming, inter alia, that his
constitutional rights to procedural due process and equal protection
were violated when the respondent Commissioner of Correction
assigned a certain risk level to him, classified him as a public safety
risk and limited his access to certain prison rehabilitative programs and
other services. The habeas court dismissed the petition, concluding that
it lacked subject matter jurisdiction over the petitioner’s claims. On the
granting of certification, the petitioner appealed to this court. Held:
1. The habeas court properly dismissed the habeas petition with respect to
the petitioner’s procedural due process claim, the petitioner having
failed to sufficiently allege, under the stigma plus test, a cognizable
liberty interest over which the court had subject matter jurisdiction;
contrary to the petitioner’s contention that being assigned a certain risk
level and classified as a public safety risk satisfied the stigma portion
of the stigma plus test, he failed to sufficiently allege facts that, if taken
as true, established stigma, as it appeared that the respondent was
mindful that the petitioner was a British citizen subject to deportation
upon completion of his sentence, and it was likely that his conviction
of murder itself was the source of any stigma of being a public safety risk.
2. The habeas court improperly dismissed the petitioner’s equal protection
claim, in which he sufficiently alleged that he was treated differently
from similarly situated prisoners because of his alienage and British
citizenship; in the present case, because the habeas petition alleged that
the respondent denied the petitioner access to rehabilitative programs
and other services that were available to inmates who are United States
citizens, the petitioner sufficiently alleged a cognizable violation of his
right to equal protection, and, as alienage and national origin are suspect
classifications, he sufficiently pleaded that the applicable statutes (§§ 18-
81w, 18-81x and 18-81z), as applied, burdened a suspect class of persons,
notwithstanding the respondent’s narrow interpretation of the habeas
petition as asserting a class of one claim.
3. The habeas court improperly dismissed the petitioner’s claim that he was
subjected to cruel and unusual punishment as a result of the respondent’s
management of the COVID-19 virus at the correctional facility in which
the petitioner was incarcerated; the petitioner sufficiently pleaded that
the COVID-19 virus and the conditions of his confinement put his life
at risk because of his preexisting medical conditions and that the respon-
dent was deliberately indifferent to and disregarded that risk because
social distancing and the use of personal protective equipment were
not enforced among inmates or prison staff.
Argued May 10—officially released November 22, 2022
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Bhatt, J., granted the respon-
dent’s motion to dismiss the petition and rendered judg-
ment thereon, from which the petitioner, on the granting
of certification, appealed to this court; thereafter, the
court, Bhatt, J., issued an articulation of its decision.
Reversed in part; further proceedings.
Alexander T. Taubes, assigned counsel, for the appel-
lant (petitioner).
Zenobia G. Graham-Days, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, and Clare Kindall, solicitor general, for the
appellee (respondent).
Opinion
BISHOP, J. The petitioner, David Taylor,1 appeals
from the judgment of the habeas court dismissing his
second amended petition for a writ of habeas corpus
pursuant to Practice Book § 23-29 (2) and (5).2 On
appeal, the petitioner claims that the court incorrectly
dismissed his claims that the respondent, the Commis-
sioner of Correction, violated his constitutional rights
to (1) procedural due process, (2) equal protection of
the law, and (3) freedom from cruel and unusual punish-
ment. We disagree that the court improperly dismissed
the petitioner’s first claim. We agree, however, that the
court improperly dismissed his second and third claims.
We therefore affirm, in part, and reverse, in part, the
judgment of the habeas court and remand the case for
further proceedings consistent with this opinion.
The following procedural history and facts, as alleged
in the petitioner’s second amended petition (operative
petition),3 or as otherwise undisputed in the record, are
relevant to this appeal.4 The petitioner, a citizen of the
United Kingdom, is currently incarcerated at the Osborn
Correctional Institution (Osborn) in Somers, serving a
term of twenty-five years of incarceration for the crime
of murder. In his operative petition, the petitioner
asserts, in essence, three claims.
The first claim asserts that the respondent violated
the petitioner’s right to procedural due process.
According to the petition, the respondent assigned the
petitioner an overall risk score of three and a detainer
score of three.5 The respondent also labeled the peti-
tioner ‘‘a public safety risk.’’ An Immigration and Natu-
ralization Service and Immigration and Customs
Enforcement detainer6 was issued against the petitioner
in 2010. As a result of this detainer, the petitioner faces
deportation upon the completion of his sentence. The
petitioner alleges that, by classifying him as ‘‘a public
safety risk’’ and improperly assigning him a detainer
score of three, the respondent has violated his right
to procedural due process. Specifically, the petitioner
contends that those classifications are false, stigmatiz-
ing, and result in punishment that is qualitatively differ-
ent from that characteristically suffered by a person
convicted of a crime. According to the petitioner,
because he has been improperly classified, he has been
denied rehabilitative programs, and his reputation has
been, and will continued to be, injured.
The petitioner’s second claim asserts an equal protec-
tion violation.7 The petitioner claims that he is being
denied equal protection of the laws because the respon-
dent has limited his access to rehabilitative programs
that are available to all inmates pursuant to General
Statutes §§ 18-81w,8 18-81x9 and 18-81z10—including
reentry and discharge planning, and community
release—because he is a British citizen.
The petitioner’s third claim asserts that the respon-
dent has violated his right under the eighth amendment
to be free from cruel and unusual punishment. The
petitioner, who is almost sixty-seven years old, alleges
that the COVID-19 virus poses a sufficiently and objec-
tively serious risk to his life because the virus has been
particularly deadly for institutionalized populations and
because he has numerous preexisting medical condi-
tions. The petitioner further alleges that the respondent
has acted with deliberate indifference toward him by
failing to follow Centers for Disease Control and Pre-
vention (CDC) guidelines—specifically, by failing to
enforce mask wearing and social distancing.11
In his prayer for relief, the petitioner ‘‘ask[ed] the
court to order the commissioner to:
‘‘(1) Reduce [his] detainer score to a 1 and [his] over-
all score to a 2, which would make [him] eligible for
community release and other relevant programs.
‘‘(2) Grant [him], as a low risk offender, and future
deportee with over 85 [percent] of [his] sentence served,
with a positive institutional record, community release
here or in the [United Kingdom] under [General Stat-
utes] § 18-91a, because of [his] deteriorating health, age,
and high risk for COVID-19 with complications.
‘‘(3) [Afford him] [a]ny other relief the court deems
just and proper under the circumstances.’’
On September 14, 2020, the respondent filed a motion
to dismiss the petition pursuant to Practice Book § 23-
29 (1), (2) and (5).12 In his memorandum of law in
support of the motion, the respondent claimed that
the court lacked subject matter jurisdiction over the
petition because the petitioner did not have a protected
liberty interest in a certain classification and because
the petition failed to state a claim on which habeas
relief could be granted.13 On October 16, 2020, the peti-
tioner filed an objection to the respondent’s motion to
dismiss in which he argued that the court had subject
matter jurisdiction over his petition because he suffi-
ciently had alleged that the respondent had violated his
rights to procedural due process, equal protection, and
freedom from cruel and unusual punishment. On
December 8, 2020, a virtual hearing on the respondent’s
motion to dismiss was held.
On January 19, 2021, the court issued a memorandum
of decision in which it dismissed, pursuant to Practice
Book § 23-29 (2) and (5), the entirety of the operative
petition.14 On January 27, 2021, the petitioner filed a
petition for certification to appeal, which the court
granted. On February 16, 2021, the petitioner filed a
motion to reargue, which the court denied on February
17, 2021. This appeal followed.15
Before turning to the petitioner’s claims, we first set
forth the relevant standard of review and legal princi-
ples that guide our analysis. ‘‘The principal purpose of
the writ of habeas corpus is to serve as a bulwark
against convictions that violate fundamental fairness.
. . . In order to invoke the trial court’s subject matter
jurisdiction in a habeas action, a petitioner must allege
that he is illegally confined or has been deprived of his
liberty.’’ (Internal quotation marks omitted.) Byrd v.
Commissioner of Correction, 177 Conn. App. 71, 82,
171 A.3d 1103 (2017).
‘‘[I]t is the established policy of the Connecticut
courts to be solicitous of pro se litigants and when it
does not interfere with the rights of other parties to
construe the rules of practice liberally in favor of the
pro se party. . . . However, [t]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil
action. . . . The principle that a plaintiff may rely only
upon what he has alleged is basic. . . . It is fundamen-
tal in our law that the right of a plaintiff to recover is
limited to the allegations of his complaint. . . . While
the habeas court has considerable discretion to frame
a remedy that is commensurate with the scope of the
established constitutional violations . . . it does not
have the discretion to look beyond the pleadings . . .
to decide claims not raised.’’ (Citation omitted; internal
quotation marks omitted.) Vitale v. Commissioner of
Correction, 178 Conn. App. 844, 850–51, 178 A.3d 418(2017), cert. denied, 328 Conn. 923, 181 A.3d 566 (2018).
To the extent the respondent claims that the petition
is legally insufficient, our review requires us to interpret
the pleadings. The interpretation of pleadings involves
an assessment of whether they are legally sufficient,
and, therefore, our review is plenary. See, e.g., Woods
v. Commissioner of Correction, 197 Conn. App. 597,
607, 232 A.3d 63 (2020) (‘‘[T]he interpretation of plead-
ings is always a question of law for the court . . . .
Our review of the [habeas] court’s interpretation of the
pleadings therefore is plenary. . . . [T]he modern
trend, which is followed in Connecticut, is to construe
pleadings broadly and realistically, rather than narrowly
and technically. . . . [T]he [petition] must be read in
its entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded, and do substantial justice between the parties.
. . . As long as the pleadings provide sufficient notice
of the facts claimed and the issues to be tried and do
not surprise or prejudice the opposing party, we will
not conclude that the [petition] is insufficient to allow
recovery.’’ (Emphasis omitted; internal quotation marks
omitted.)), appeal dismissed, 341 Conn. 506, 267 A.3d
193 (2021).
Practice Book § 23-29, which governs motions to dis-
miss habeas petitions, ‘‘serves, roughly speaking, as
the analog to Practice Book §§ 10-30 and 10-39, which,
respectively, govern motions to dismiss and motions to
strike in civil actions.’’ Gilchrist v. Commissioner of
Correction, 334 Conn. 548, 561, 223 A.3d 368 (2020).
‘‘[A]s it would do in evaluating the allegations in a civil
complaint, in evaluating the legal sufficiency of allega-
tions in a habeas petition, a court must view the allega-
tions in the light most favorable to the petitioner, which
includes all facts necessarily implied from the allega-
tions.’’ Finney v. Commissioner of Correction, 207
Conn. App. 133, 142, 261 A.3d 778, cert. denied, 339
Conn. 915, 262 A.3d 134 (2021).
‘‘Whether a habeas court properly dismissed [the
operative petition] for a writ of habeas corpus presents
a question of law over which our review is plenary.’’
Gilchrist v. Commissioner of Correction, supra, 334
Conn. 553. We therefore must ‘‘decide whether the
court’s conclusions are legally and logically correct and
supported by the facts in the record.’’ (Internal quota-
tion marks omitted.) Boria v. Commissioner of Correc-
tion, 186 Conn. App. 332, 342, 199 A.3d 1127 (2018),
rev’d on other grounds, 345 Conn. 39, 282 A.3d 433(2022).
I
The petitioner first claims that the court improperly
dismissed his petition for a writ of habeas corpus
because the allegations within his petition regarding
his classification status established the denial of a pro-
tected liberty interest without due process. Specifically,
the petitioner contends that the petition’s allegations
sufficiently alleged a claim under the stigma plus test,
and, therefore, sufficiently alleged a cognizable liberty
interest invoking the subject matter jurisdiction of the
court. We are unpersuaded.
We first set forth the legal principles underlying our
determination of the petitioner’s first claim. ‘‘In order
to state a claim for a denial of procedural due process
. . . a prisoner must allege that he possessed a pro-
tected liberty interest, and was not afforded the requi-
site process before being deprived of that liberty inter-
est. . . . A petitioner has no right to due process . . .
unless a liberty interest has been deprived . . . . Our
first inquiry, therefore, is whether the petitioner has
alleged a protected liberty interest. That question impli-
cates the subject matter jurisdiction of the habeas
court.’’ (Citation omitted; internal quotation marks
omitted.) Anthony A. v. Commissioner of Correction,
supra, 326 Conn. 674–75.
In Anthony A., our Supreme Court adopted the stigma
plus test used by federal courts to determine whether
the petitioner had alleged a cognizable liberty interest
in a prison classification.16 Id., 680–81. In that case, the
petitioner sought a writ of habeas corpus, claiming that
the Department of Correction (department) improperly
had classified him as a sex offender without providing
him with procedural due process. Id., 672. Our Supreme
Court observed that, ‘‘in certain situations, a different
inquiry is appropriate to determine whether the due
process clause directly confers a liberty interest on
inmates.’’ (Internal quotation marks omitted.) Id., 679.
‘‘Specifically . . . where a state action has stigmatizing
consequences for a prisoner and results in a punishment
that is qualitatively different from that characteristically
suffered by a person convicted of crime, the protected
liberty interest arises from the due process clause
directly.’’ (Citation omitted; internal quotation marks
omitted.) Id. The court explained that ‘‘an inmate raising
a due process claim pursuant to the stigma plus test
. . . also must allege the falsehood of the stigmatizing
label or classification.’’ Id., 680.
The court in Anthony A. determined that the stigma
plus test was applicable in the case before it, in which
the petitioner had ‘‘alleged that he was stigmatized
when the respondent wrongfully classified him as a sex
offender, and allege[d] as the ‘plus’ that he suffered
various negative consequences, including being com-
pelled to participate in treatment or risk forfeiting good
time credits and parole eligibility . . . .’’ Id. Thus, the
court continued, its inquiry ‘‘focuse[d] on whether the
allegations of the petition demonstrate[d] that the clas-
sification was wrongful and stigmatized the petitioner,
and that the consequences suffered by the petitioner
were ‘qualitatively different’ from the punishments usu-
ally suffered by prisoners, so that they constituted a
major change in the conditions of confinement
amounting to a grievous loss.’’ Id., 680–81. The court
determined that the petitioner sufficiently had alleged
a claim under the stigma plus test and, thus, sufficiently
had alleged a protected liberty interest to invoke the
habeas court’s subject matter jurisdiction. Id., 686.
Accordingly, to plead a stigma plus claim, a petitioner
must allege facts demonstrating that a ‘‘classification
was wrongful and stigmatized the petitioner, and that
the consequences suffered by the petitioner were ‘quali-
tatively different’ from the punishments usually suf-
fered by prisoners, so that they constituted a major
change in the conditions of confinement amounting to
a grievous loss.’’ Id., 681.
Following Anthony A., this court has held that the
stigma plus test was satisfied only where, like in
Anthony A., a petitioner improperly was classified as
a sex offender. Compare Carolina v. Commissioner of
Correction, 192 Conn. App. 296, 302, 217 A.3d 1068(petitioner sufficiently alleged protected liberty interest
under stigma plus test because he was classified as
sex offender, which court determined implicated liberty
interest), cert. denied, 334 Conn. 909, 221 A.3d 43 (2019),
with Vitale v. Commissioner of Correction, supra, 178
Conn. App. 870–71 (petition failed to sufficiently allege
stigma plus claim because petition did not allege classi-
fication as sex offender was false and because labeling
inmate as sex offender and providing recommendation
for treatment, in absence of negative consequences for
failure to participate in such treatment, was insufficient
to show consequences petitioner suffered were qualita-
tively different from punishments usually suffered by
prisoners), and Stephenson v. Commissioner of Correc-
tion, 203 Conn. App. 314, 327–31, 248 A.3d 34 (petition
failed to sufficiently allege stigma plus claim where
crux of petition constituted attempt by petitioner to
advance his parole eligibility and where petition did
not identify consequences qualitatively different from
punishments usually suffered by prisoners), cert.
denied, 336 Conn. 944, 249 A.3d 737 (2021).
In the present case, the petitioner contends that being
classified as a ‘‘public safety risk’’ and being assigned
a certain classification score is sufficient to satisfy the
‘‘stigma’’ portion of the stigma plus test because these
classifications injure his reputation. The petitioner
alleged, in his operative petition, that the classifications
placed on him by the respondent ensure that he will
be known as a public safety risk in the United Kingdom
for years to come, which, according to the petitioner,
will potentially have negative effects on him and his
family, including potentially ‘‘disenfranchising’’ him and
‘‘making [him] a ward of the state . . . .’’
Although the petitioner alleges that the classifications
are stigmatizing and will result in harm to his reputation,
he fails to sufficiently allege that these classifications
are ‘‘uniquely stigmatizing’’ or akin to being classified
as a sex offender. See Anthony A. v. Commissioner of
Correction, supra, 326 Conn. 681 (‘‘[T]he first part of
the test—whether it is stigmatizing to be classified as
a sex offender—may be dispatched with ease and rela-
tively little analysis. That classification is uniquely stig-
matizing. . . . We can hardly conceive of a state’s
action bearing more stigmatizing consequences than
the labeling of a prison inmate as a sex offender. . . .
One need only look to the increasingly popular Megan’s
Laws, whereby states require sex offenders to register
with law enforcement officials who are then authorized
to release information about the sex offender to the
public, to comprehend the stigmatizing consequences
of being labeled a sex offender.’’ (Internal quotation
marks omitted.)); see also Carolina v. Commissioner
of Correction, supra, 192 Conn. App. 301 (‘‘classification
as a sex offender is ‘uniquely stigmatizing’ ’’); id., 301
n.6 (‘‘[c]onstitutional privacy interests are implicated
. . . because . . . [t]he damage to [citizens’] reputa-
tions resulting from [disclosure] stigmatizes them as
currently dangerous sex offenders, can harm their earn-
ing capacities, and can cause them to be objects of
derision in the community’’ (internal quotation marks
omitted)).17 Here, it appears that the respondent
assigned a risk level to the petitioner, mindful that he
is a British citizen subject to deportation once his sen-
tence is complete. We do not believe that such action
facially meets the stigma plus test. We also do not
believe that the respondent’s labeling of the petitioner
as ‘‘a public safety risk’’ is sufficient to constitute
stigma. Indeed, given that the petitioner was convicted
of murder, it is likely that his conviction itself, rather
than any assessment of a risk level, is the source of
any stigma of being ‘‘a public safety risk.’’ Accordingly,
we conclude that the petitioner has failed to allege facts,
which, if taken as true, establish ‘‘stigma’’ under the
stigma plus test.18 Therefore, with respect to the peti-
tioner’s procedural due process claim, he has not suffi-
ciently alleged a cognizable liberty interest over which
the habeas court had subject matter jurisdiction, and
the habeas court properly dismissed the petition with
respect to this claim.
II
The petitioner next asserts that the court improperly
dismissed his equal protection claim. The petitioner
argues that his petition sufficiently alleges that he has
been treated differently from similarly situated prison-
ers because of his alienage and national origin, namely,
because he is a British citizen. Specifically, the peti-
tioner contends that he has sufficiently alleged that he
has been denied rehabilitative programs, reentry ser-
vices, discharge planning, and community release
because he is not a citizen of the United States.
In response, the respondent interprets the petition
as asserting a ‘‘class of one’’ equal protection claim
because the petition does not allege membership in a
protected class. The respondent also asserts that the
petition fails to ‘‘allege facts showing a reasonably close
resemblance between [himself] and a proffered compa-
rator.’’ (Internal quotation marks omitted.) See Hsin v.
City of New York, 779 Fed. Appx. 12, 15 (2d Cir. 2019).
The respondent further contends that the petition does
not allege that the petitioner was treated differently
because of his British citizenship or alienage. We do
not read the petition so narrowly. We understand the
petition to allege disparate treatment on the basis of
his alienage and national origin and, thus, to allege
membership in a protected class. We therefore do not
construe the petitioner’s equal protection claim as a
‘‘class of one’’ claim.
‘‘The equal protection clause of the fourteenth
amendment to the United States constitution, § 1, pro-
vides in relevant part: No State shall make or enforce
any law which shall . . . deny to any person within its
jurisdiction the equal protection of the laws.’’ (Internal
quotation marks omitted.) Hunter v. Commissioner of
Correction, 271 Conn. 856, 862 n.7, 860 A.2d 700 (2004).
‘‘The Equal Protection Clause of the [f]ourteenth
[a]mendment to the United States [c]onstitution is
essentially a direction that all persons similarly situated
should be treated alike. . . . Conversely, the equal pro-
tection clause places no restrictions on the state’s
authority to treat dissimilar persons in a dissimilar man-
ner. . . . Thus, [t]o implicate the equal protection
[clause] . . . it is necessary that the state statute [or
statutory scheme] in question, either on its face or in
practice, treat persons standing in the same relation to
it differently. . . . [Consequently], the analytical predi-
cate [of consideration of an equal protection claim] is
a determination of who are the persons [purporting to
be] similarly situated. . . . The similarly situated
inquiry focuses on whether the [petitioner is] similarly
situated to another group for purposes of the challenged
government action. . . . Thus, [t]his initial inquiry is
not whether persons are similarly situated for all pur-
poses, but whether they are similarly situated for pur-
poses of the law challenged.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Stuart
v. Commissioner of Correction, 266 Conn. 596, 601–602,
834 A.2d 52 (2003).
After this initial inquiry, the court ‘‘must . . . deter-
mine the standard by which the challenged statute’s
constitutional validity will be determined. If, in distin-
guishing between classes, the statute either intrudes on
the exercise of a fundamental right or burdens a suspect
class of persons, the court will apply a strict scrutiny
standard [under which] the state must demonstrate that
the challenged statute is necessary to the achievement
of a compelling state interest. . . . If the statute does
not touch upon either a fundamental right or a suspect
class, its classification need only be rationally related
to some legitimate government purpose in order to with-
stand an equal protection challenge.’’ (Footnote omit-
ted; internal quotation marks omitted.) Hammond v.
Commissioner of Correction, 259 Conn. 855, 877, 792
A.2d 774 (2002). ‘‘Although the federal constitution does
not expressly enumerate any suspect classes, the
United States Supreme Court has identified three such
classifications, namely, race, alienage and national ori-
gin.’’ Kerrigan v. Commissioner of Public Health, 289
Conn. 135, 159, 957 A.2d 407 (2008).
‘‘[A]n equal protection claim based on unequal appli-
cation of the law . . . must be established by . . .
showing . . . intentional or purposeful discrimina-
tion.’’ (Internal quotation marks omitted.) Tuchman v.
State, 89 Conn. App. 745, 759, 878 A.2d 384, cert. denied,
275 Conn. 920, 883 A.2d 1252 (2005). ‘‘[T]he plaintiff
must prove that the state discriminated against him
based on an impermissible, invidious classification.
. . . Therefore, the plaintiff must prove that the action
had a discriminatory effect and that it was motivated
by a discriminatory purpose. . . . Put another way, the
plaintiff must establish that he, compared with others
similarly situated, was selectively treated . . . and
. . . that such selective treatment was based on imper-
missible considerations . . . .’’ (Citations omitted;
internal quotation marks omitted.) DiMartino v. Rich-
ens, 263 Conn. 639, 673, 822 A.2d 205 (2003); see also
Hunt v. Prior, 236 Conn. 421, 443, 673 A.2d 514 (1996)
(‘‘[w]hen, as here, a claimed equal protection violation
arises from the alleged selective application of a facially
neutral state [law], it must be shown that (1) the person,
compared with others similarly situated, was selectively
treated, and (2) the selective treatment was motivated
by an intention to discriminate on the basis of impermis-
sible considerations’’ (internal quotation marks omit-
ted)).
In the present case, we conclude that the petitioner
has alleged sufficient facts, when properly construed
in the light most favorable to him, to constitute an equal
protection claim. The crux of the petitioner’s claim is
that the respondent has limited his access to rehabilita-
tive programs, including reentry and discharge plan-
ning, and community release—programs he alleges are
available to inmates who are United States citizens—
because he is a British citizen.
When construed broadly and realistically, the petition
asserts that §§ 18-81w, 18-81x and 18-81z, as applied by
the respondent, violate the petitioner’s right to equal
protection of the law.19 The petitioner alleges that he
is similarly situated to inmates who are citizens of the
United States. The petitioner pleads that, although he
is similarly situated to inmates who are citizens of the
United States, unlike those inmates, he has been denied
access to rehabilitative programs because he is a citizen
of the United Kingdom.
The petition also sufficiently alleges that §§ 18-81w,
18-81x and 18-81z, as applied, burden him as a member
of a suspect class of persons. In particular, the petition
alleges that the statutes burden him because he is not
a United States citizen. According to the petitioner, he
has been ‘‘denied equal protection of the laws as a
British citizen.’’ Because alienage and national origin
are suspect classifications; see Kerrigan v. Commis-
sioner of Public Health, supra, 289 Conn. 159; we con-
clude that the petition sufficiently pleads that the stat-
utes, as applied, burden a suspect class of persons. See
Hammond v. Commissioner of Correction, supra, 259
Conn. 877.
Last, the petition, read in its entirety and broadly
construed, asserts that the respondent, by denying the
petitioner access to rehabilitative programs, intention-
ally and purposefully discriminated against him based
on his alienage and national origin.20 Specifically, the
petitioner avers that he has completed only six pro-
grams during his incarceration, despite requesting
more, and has been told that he does not need further
programs. The petitioner claims that the respondent
‘‘will provide no reentry and discharge planning,’’ and
alleges in the habeas petition that the respondent is
‘‘illegally using [the] detainer to limit [his] access to
rehabilitative programs, including reentry, discharge
planning, and community release.’’21 The petition fur-
ther states that the respondent ‘‘has chosen to hinder
the limited chances [the petitioner] already [has] to
reintegrate into [his] own community after twenty-
seven years absence, and [that this] is completely anti-
thetical to the purpose of modern corrections.’’ (Inter-
nal quotation marks omitted.) According to the petition,
the respondent is ‘‘set on punishing [the petitioner]
further when [he] return[s] to England.’’
The petition, read in its entirety, and construed
broadly and realistically, rather than narrowly and tech-
nically, sufficiently alleges a cognizable violation of the
petitioner’s right to equal protection. We therefore con-
clude that the court improperly dismissed this claim
on the basis of Practice Book § 23-29 (2) and (5).
III
The petitioner next claims that the court improperly
dismissed his petition because it did not sufficiently
allege a valid cruel and unusual punishment claim. Spe-
cifically, the petitioner contends that the petition ade-
quately stated a claim of cruel and unusual punishment
based on the serious risk that COVID-19 poses to his
health and the respondent’s deliberate indifference to
that risk.22 We agree with the petitioner that the court
improperly dismissed this claim, as we believe that he
sufficiently alleged facts to support this constitu-
tional claim.
‘‘The [c]onstitution does not mandate comfortable
prisons . . . but neither does it permit inhumane ones,
and it is now settled that the treatment a prisoner
receives in prison and the conditions under which he
is confined are subject to scrutiny under the [e]ighth
[a]mendment. . . . The [a]mendment also imposes
duties on [prison] officials, who must provide humane
conditions of confinement; prison officials must ensure
that inmates receive adequate food, clothing, shelter,
and medical care, and must take reasonable measures
to guarantee the safety of the inmates . . . .
‘‘In Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50
L. Ed. 2d 251 (1976), the United States Supreme Court
concluded: [D]eliberate indifference to serious medical
needs of prisoners constitutes the unnecessary and
wanton infliction of pain . . . proscribed by the
[e]ighth [a]mendment. . . .
‘‘These elementary principles establish the govern-
ment’s obligation to provide medical care for those
whom it is punishing by incarceration. An inmate must
rely on prison authorities to treat his medical needs; if
the authorities fail to do so, those needs will not be
met. . . . In less serious cases, denial of medical care
may result in pain and suffering which no one suggests
would serve any penological purpose. . . . The inflic-
tion of such unnecessary suffering is inconsistent with
contemporary standards of decency as manifested in
modern legislation codifying the common-law view that
it is but just that the public be required to care for the
prisoner, who cannot by reason of the deprivation of
his liberty, care for himself. . . .
‘‘A prisoner seeking habeas relief on the basis of his
conditions of confinement, which includes the medical
care made available to him, bears the burden of estab-
lishing both aspects of his claim.’’ (Internal quotation
marks omitted.) Jolley v. Commissioner of Correction,
98 Conn. App. 597, 599–600, 910 A.2d 982 (2006), cert.
denied, 282 Conn. 904, 920 A.2d 308 (2007). ‘‘In order
to establish an [e]ighth [a]mendment claim arising out
of inadequate medical care, a prisoner must prove delib-
erate indifference to [his] serious medical needs. . . .
The standard of deliberate indifference includes both
subjective and objective components. First, the alleged
deprivation must be, in objective terms, sufficiently seri-
ous. . . . Second, the [government official] must act
with a sufficiently culpable state of mind. . . . An offi-
cial acts with the requisite deliberate indifference when
that official knows of and disregards an excessive risk
to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he
must also draw the inference. . . . Thus, an official’s
failure to alleviate a significant risk that he should have
perceived but did not [does not violate the eighth
amendment]. . . .
‘‘Accordingly, to establish a claim of deliberate indif-
ference in violation of the eighth amendment, a prisoner
must prove that the officials’ actions constituted more
than ordinary lack of due care for the prisoner’s inter-
ests or safety. . . . [D]eliberate indifference is a strin-
gent standard of fault . . . requiring proof of a state
of mind that is the equivalent of criminal recklessness.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Faraday v. Commissioner of Correc-
tion, 288 Conn. 326, 338–39, 952 A.2d 764 (2008). In
other words, ‘‘the evidence must show that the respon-
dent had actual knowledge of a substantial risk of seri-
ous harm facing the petitioner and disregarded that risk
by failing to take reasonable measures to abate that
risk.’’ Fuller v. Commissioner of Correction, 75 Conn.
App. 133, 137, 815 A.2d 208 (2003).
In the present case, we conclude that the petitioner
has alleged sufficient facts, if properly construed in the
light most favorable to him, to constitute a claim of
cruel and unusual punishment in violation of his eighth
amendment right and to thus invoke the subject matter
jurisdiction of the habeas court because the gravamen
of the petitioner’s claim concerns the transmission of
the COVID-19 virus, the adequacy of the preventative
measures instituted by the respondent, and the serious
risk to health attendant to the respondent’s manage-
ment of the virus as it applies to the petitioner’s particu-
lar circumstances.
As to the first prong—a sufficiently serious depriva-
tion—the petitioner alleged that the COVID-19 pan-
demic was a ‘‘seriously precarious situation,’’ and has
‘‘wreaked havoc across the world and has been particu-
larly deadly for institutionalized populations.’’ This
court previously has recognized the seriousness of the
COVID-19 virus. See Gonzalez v. Commissioner of Cor-
rection, 211 Conn. App. 632, 646 n.9, 273 A.3d 252(‘‘[B]ecause incarcerated inmates are necessarily con-
fined in close quarters, a contagious virus represents a
grave health risk to them—and graver still to those who
have underlying conditions that render them medically
vulnerable. . . . The COVID-19 virus is highly infec-
tious and can be transmitted easily from person to per-
son. . . . If contracted, COVID-19 can cause severe
complications or death.’’ (Citation omitted; internal
quotation marks omitted.)), cert. denied, 343 Conn. 922,
275 A.3d 212 (2022). The petitioner further alleged that
the COVID-19 virus posed a serious risk specifically
to him because of his preexisting medical conditions.
These preexisting conditions include chronic obstruc-
tive pulmonary disease, pneumonia, tuberculosis, atel-
ectasis, high blood pressure, and being at high risk for
colon cancer. Thus, the petitioner alleged, he was at
high risk for serious symptoms associated with COVID-
19, and the conditions at Osborn were putting his life
at risk. Based on these allegations, we conclude that the
petitioner has sufficiently pleaded that his conditions
of confinement are, ‘‘in objective terms, sufficiently seri-
ous.’’ (Internal quotation marks omitted.) Faraday v.
Commissioner of Correction, supra, 288 Conn. 338.
We also conclude that the petitioner has pleaded
sufficient facts as to the second prong of the deliberate
indifference test—namely, that the officials involved
had a sufficiently culpable state of mind, because they
knew of and disregarded an excessive risk to his health
and safety. See id., 338–39. In his petition, the petitioner
alleged that the respondent was not handling the
COVID-19 pandemic according to CDC guidelines. In
particular, he alleged that the use of personal protective
equipment was not enforced among inmates or prison
staff.23 He similarly alleged that social distancing was
not being enforced, resulting in inmates being com-
pelled to dine in close proximity, specifically, within
two feet of each other. Based on these allegations, the
petitioner claimed that the prison staff ‘‘clearly do not
care about [his health and safety] at all,’’ and had
adopted a ‘‘policy of continual delay, denial and deceit
[which was] compounding an already seriously precari-
ous situation, putting [his] deteriorating health and well-
being in further danger.’’
We note that ‘‘[w]ith respect to deliberate indiffer-
ence . . . [t]he key inquiry is whether the [commis-
sioner] responded reasonably to th[is] risk.’’ (Internal
quotation marks omitted.) Gonzalez v. Commissioner
of Correction, supra, 211 Conn. App. 652. In determining
whether a response to COVID-19 was reasonable, courts
have found relevant, among other things, policies relat-
ing to social distancing and masks. See id., 652 (court
focused its inquiry on whether respondent ‘‘took pre-
ventative measures, including screening for symptoms,
educating staff and inmates about COVID-19, cancelling
visitation, quarantining new inmates, implementing reg-
ular cleaning, providing disinfectant supplies, and pro-
viding masks’’ (internal quotation marks omitted)); see
also Valentine v. Collier, 993 F.3d 270, 284–89 (5th Cir.
2021) (deeming relevant to deliberate indifference anal-
ysis whether respondent implemented testing, social
distancing, mask use, handwashing, and sanitation or
cleaning); see also Hope v. Warden, 972 F.3d 310, 327–28
(3d Cir. 2020) (discussing whether prison staff wore
masks and enforced social distancing in determining
whether respondent warden was deliberately indiffer-
ent to inmates’ medical needs); Swain v. Junior, 961
F.3d 1276, 1291 (11th Cir. 2020) (‘‘[b]y taking other
measures, besides release—including, among many
other things, implementing some social-distancing mea-
sures, distributing face masks, screening inmates and
staff, and providing cleaning and personal hygiene sup-
plies—[the director of corrections] has responded rea-
sonably to the risk of the virus’’). Furthermore, ‘‘[o]ur
Supreme Court consistently [has] held that reasonable-
ness is a question of fact for the trier to determine
based on all of the circumstances. . . . Recklessness
likewise presents a question of fact.’’ (Citation omitted;
internal quotation marks omitted.) Gonzalez v. Com-
missioner of Correction, supra, 653 n.14.
Although ultimately, it may prove that the petitioner
is unable to produce evidence to support his allegations
of cruel and unusual punishment,24 such a possibility
cannot support the granting of a motion to dismiss.
See Finney v. Commissioner of Correction, supra, 207
Conn. App. 144. We emphasize that, at the pleading
stage, the allegations in the petition must be viewed in
the light most favorable to the petitioner. See id., 146.
Viewing the petition in such a light, we conclude that
the petitioner has raised allegations sufficient to state
a cognizable claim for cruel and unusual punishment.25
The judgment is reversed with respect to the claims
of equal protection and cruel and unusual punishment,
and the case is remanded for further proceedings in
accordance with law; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
The petitioner was self-represented throughout the proceedings before
the habeas court but is represented by counsel on appeal.
2
Practice Book § 23-29 provides: ‘‘The judicial authority may, at any time,
upon its own motion or upon motion of the respondent, dismiss the petition,
or any count thereof, if it determines that:
‘‘(1) the court lacks jurisdiction;
‘‘(2) the petition, or a count thereof, fails to state a claim upon which
habeas corpus relief can be granted;
‘‘(3) the petition presents the same ground as a prior petition previously
denied and fails to state new facts or to proffer new evidence not reasonably
available at the time of the prior petition;
‘‘(4) the claims asserted in the petition are moot or premature;
‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’
3
The petitioner filed his first petition for a writ of habeas corpus on July
15, 2020, and his first amended petition on September 17, 2020. Subsequently,
on December 11, 2020, the petitioner filed a ‘‘motion for permission to file
additional pages to the amended petition,’’ which was docketed as a second
‘‘amended application for writ of habeas corpus.’’ Thus, the petitioner’s
second amended petition is the operative petition, which we review to
determine whether the habeas court had subject matter jurisdiction.
4
‘‘Because this appeal arises from the habeas court’s ruling dismissing
the petition on the basis that the court lacked jurisdiction, we [assume] the
facts [as] alleged in the petition, including those facts necessarily implied
from the allegations, construing them in favor of the petitioner for purposes
of deciding whether the court had subject matter jurisdiction.’’ Anthony A.
v. Commissioner of Correction, 326 Conn. 668, 670, 166 A.3d 614 (2017).
5
The respondent assigns each inmate an overall classification assessment
score of one to five, with one representing the lowest security level and
five representing the highest. See Conn. Dept. of Correction, Administrative
Directive 9.2 (6) and (8) (effective July 1, 2006) (Administrative Directive
9.2). In determining an inmate’s overall classification assessment score, the
inmate’s risks and needs are assessed. Id., 9.2 (8). Seven factors determine
an inmate’s overall risk score. Id. Each individual factor is assigned a rating
from one to five, with one representing the least risk and five representing
the highest risk. See Office of Legislative Research, OLR Research Report:
Department of Correction Inmate Classification (March 1, 2000) available
at https://www.cga.ct.gov/2000/rpt/2000-R-0257.htm (last visited November
17, 2022). One of these factors is the presence of a detainer. See Administra-
tive Directive 9.2 (8) (A) (5). ‘‘After independently rating each factor, [the
respondent] establishes an overall risk level. The highest rating assigned to
any of the seven factors determines the inmate’s overall risk level. Thus if
an inmate has a two on six of the factors and a four on one factor, his
overall rating is a four.’’ OLR Research Report: Department of Correction
Inmate Classification, supra. Because the petitioner has a detainer lodged
against him, he has been assigned a detainer score that affects his overall
risk score.
6
According to the petitioner, the detainer is a civil detainer. An immigra-
tion detainer ‘‘serves to advise another law enforcement agency that the
[United States Department of Homeland Security (Department)] seeks cus-
tody of an alien presently in the custody of that agency, for the purpose of
arresting and removing the alien. The detainer is a request that such agency
advise the Department, prior to release of the alien, in order for the Depart-
ment to arrange to assume custody, in situations when gaining immediate
physical custody is either impracticable or impossible.’’ 8 C.F.R. § 287.7(a) (2022).
7
We note that the court did not address the petitioner’s equal protection
claim in its memorandum of decision and that, generally, this court is not
required to review issues not considered at the habeas proceeding. See,
e.g., Leon v. Commissioner of Correction, 189 Conn. App. 512, 528, 208
A.3d 296, cert. denied, 332 Conn. 909, 209 A.3d 1232 (2019). We also note,
however, that ‘‘a reviewing court properly may address jurisdictional claims
that neither were raised nor ruled on in the trial court.’’ Ajadi v. Commis-
sioner of Correction, 280 Conn. 514, 535, 911 A.2d 712 (2006).
In the present case, the petitioner did raise his equal protection claim in
his operative petition, but the court did not address the claim. The petitioner
attempted to rectify this deficiency by filing a motion to reargue, asserting
that the court failed to address his equal protection claim; however, the
court denied the motion. Nevertheless, we address this claim because the
parties have fully briefed the merits of the jurisdictional issue as it pertains
to the petitioner’s equal protection claim. Additionally, the claim is based
on undisputed procedural facts and, therefore, does not require a review
of any factual determinations, and the petition can reasonably be read
broadly to include such a claim.
8
General Statutes § 18-81w (a) provides: ‘‘The Criminal Justice Policy and
Planning Division within the Office of Policy and Management shall develop
and implement a comprehensive reentry strategy that provides a continuum
of custody, care and control for offenders who are being supervised in the
community, especially those offenders who have been discharged from the
custody of the Department of Correction, and assists in maintaining the
prison population at or under the authorized bed capacity. The reentry
strategy shall support the rights of victims, protect the public and promote
the successful transition of offenders from incarceration to the community
by (1) maximizing any available period of community supervision for eligible
and suitable offenders, (2) identifying and addressing barriers to the success-
ful transition of offenders from incarceration to the community, (3) ensuring
sufficient criminal justice resources to manage offender caseloads, (4) identi-
fying community-based supervision, treatment, educational and other ser-
vices and programs that are proven to be effective in reducing recidivism
among the population served by such services and programs, and (5) estab-
lishing employment initiatives for offenders through public and private ser-
vices and partnerships by reinvesting any savings achieved through a reduc-
tion in prison population.’’
9
General Statutes § 18-81x provides: ‘‘For the fiscal year ending June 30,
2007, and each fiscal year thereafter, the sum of $350,000 from revenue
derived by the Department of Administrative Services from the contract for
the provision of pay telephone service to inmates of correctional facilities
shall be transferred to the Department of Correction, for Other Current
Expenses, for expanding inmate educational services and reentry program
initiatives.’’
10
General Statutes § 18-81z provides: ‘‘The Department of Correction, the
Board of Pardons and Paroles and the Court Support Services Division of
the Judicial Branch shall develop a risk assessment strategy for offenders
committed to the custody of the Commissioner of Correction that will (1)
utilize a risk assessment tool that accurately rates an offender’s likelihood
to recidivate upon release from custody, and (2) identify the support pro-
grams that will best position the offender for successful reentry into the
community. Such strategy shall incorporate use of both static and dynamic
factors and utilize a gender-responsive approach that recognizes the unique
risks and needs of female offenders. In the development of such risk assess-
ment strategy, the department, board and division may partner with an
educational institution that has expertise in criminal justice and psychiatry
to evaluate risk assessment tools and customize a risk assessment tool to
best meet the state’s needs. On or before January 1, 2009, and annually
thereafter, the department, board and division shall report to the Governor
and the joint standing committee of the General Assembly on judiciary, in
accordance with section 11-4a, on the development, implementation and
effectiveness of such strategy.’’
11
The respondent’s appellate brief addresses only the first two of the
petitioner’s three claims— the due process claim and the equal protection
claim. The respondent does not address the petitioner’s third claim, namely,
that the respondent violated his right to be free from cruel and unusual
punishment.
12
Although the petitioner twice amended his petition after the respondent
filed his motion to dismiss, the respondent did not file an objection to either
of the amended petitions; nor did the respondent seek to amend his motion
to dismiss after the petitioner filed the amended petitions.
13
The respondent also argued that the petitioner’s COVID-19 claim had
been released and was barred based on a settlement agreement reached in
McPherson v. Lamont, United States District Court, Docket No. 3:20-CV-
0534 (JBA) (D. Conn. July 20, 2020). In its memorandum of decision, the
court concluded that the claim was not barred by the McPherson settlement
because the settlement was approved on July 20, 2020, whereas the habeas
petition was filed on July 15, 2020. The respondent does not reassert this
argument on appeal.
14
In its memorandum of decision, the court stated that it had subject
matter jurisdiction over the petitioner’s cruel and unusual punishment claim,
and yet the court dismissed the petition in its entirety without providing a
specific reason relating to that particular claim. On review, we see no basis
for the court to have dismissed this claim, without a hearing on the merits,
on the basis of either Practice Book § 23-29 (2) or (5).
15
On July 21, 2021, this court ordered, sua sponte, that the habeas court
articulate whether it had considered the petitioner’s second amended peti-
tion for a writ of habeas corpus when ruling on the respondent’s motion
to dismiss. In its articulation, dated July 27, 2021, the habeas court explained
that it had reviewed and considered the petitioner’s second amended petition
when ruling on the motion to dismiss.
16
Both parties, in their appellate briefs, have analyzed the petitioner’s due
process claim under the stigma plus test.
17
We also note that no court has extended the stigma plus test to apply
beyond instances in which the petitioner is labeled a sex offender. The
petitioner neglects to set forth any argument that the stigma plus test should
be extended beyond the context of cases involving classification as a sex
offender.
18
‘‘The stigma plus test is conjunctive and, therefore, we need not consider
whether the petitioner sufficiently alleged facts satisfying the remaining
portions of the test.’’ Stephenson v. Commissioner of Correction, supra,
203 Conn. App. 331 n.12.
19
Because §§ 18-81w, 18-81x and 18-81z do not expressly limit rehabilita-
tive programs to citizens of the United States, the petitioner’s claim can be
understood only as a claim of an equal protection violation as applied to
him, and not on its face. See State v. Jason B., 248 Conn. 543, 558 n.12, 729
A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999).
20
To the extent that the respondent argues that the petitioner is not being
treated differently than similarly situated inmates, namely, those inmates
also with detainers lodged against them, we emphasize that this argument
goes to whether the petitioner can prove his claim rather than whether he
has sufficiently alleged an equal protection claim.
21
Also of import, we acknowledge that the detainer itself does not make
the petitioner ineligible for rehabilitative programs, including reentry, dis-
charge planning, and community release. As described in footnote 6 of this
opinion, a civil immigration detainer serves, in short, as a request that the
respondent notify the United States Department of Homeland Security prior
to the release of the petitioner. See 8 C.F.R. § 287.7 (a) (2022); see also
General Statutes § 54-192h (a) (2) (C). Rather, it is the respondent’s own
inmate classification system that is limiting the petitioner’s access to rehabili-
tative programs, such as reentry, discharge planning, and community release.
See Conn. Dept. of Correction, Administrative Directive 9.2 (11) (effective
July 1, 2006).
22
The respondent’s appellate brief fails to address the petitioner’s cruel
and unusual punishment claim. At oral argument, however, counsel for the
respondent argued that no habeas court in this jurisdiction has granted a
petition for a writ of habeas corpus based on a COVID-19 claim of cruel and
unusual punishment. We find this argument unpersuasive. Simply because
no habeas court in this jurisdiction has granted such a petition does not
mean that the Superior Court, sitting on habeas matters, lacks the subject
matter jurisdiction to do so.
23
The petitioner alleged that the lack of enforcement of the use of personal
protective equipment violated Executive Order No. 7BB issued by Governor
Ned Lamont on April 22, 2020, relating to the use of face masks, an April
21, 2020 memorandum from then Commissioner Rollin Cook to all depart-
ment staff regarding the wearing of masks, and the terms of a settlement
agreement between the department and the American Civil Liberties Union
Foundation of Connecticut in McPherson v. Lamont, United States District
Court, Docket No. 3:20-CV-0534 (JBA) (D. Conn. July 20, 2020). See footnote
13 of this opinion.
24
This may, of course, be true as to the entirety of the petition.
25
We also note that the court could grant relief on the petitioner’s equal
protection and cruel and unusual punishment claims if the petitioner is able
to prove them. The petitioner, in his prayer for relief, sought ‘‘[a]ny other
relief the court deems just and proper under the circumstances.’’ ‘‘[T]he
habeas court has considerable discretion to frame a remedy that is commen-
surate with the scope of the established constitutional violations . . . .’’
(Emphasis omitted; internal quotation marks omitted.) Marshall v. Commis-
sioner of Correction, 206 Conn. App. 461, 471, 261 A.3d 49, cert. denied,
338 Conn. 916, 259 A.3d 1180 (2021).