Braham v. Newbould ( 2015 )

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MICHAEL BRAHAM v. RICHARD
NEWBOULD ET AL.
(AC 36235)
Alvord, Prescott and Mullins, Js.
Argued May 27—officially released October 6, 2015
(Appeal from Superior Court, judicial district of New
Haven, Zemetis, J. [motion to dismiss; judgment]; A.
Robinson, J. [motion for reargument].)
Michael Braham, self-represented, the appellant
(plaintiff).
Zenobia G. Graham-Days, assistant attorney general,
with whom, on the brief, was George Jepsen, attorney
general, for the appellees (defendants).
Opinion
ALVORD, J. The plaintiff, Michael Braham, appeals
from the judgment of the trial court dismissing his
action against the defendants, Richard Newbould, Rich-
ard Bush, Catherine Durato, Sheryl Estrom, and Valerie
Boykins.1 The plaintiff claims that the court improperly
dismissed his claims against the defendants, employees
of the Correctional Managed Health Care division of
the University of Connecticut Health Center, on the
basis of the doctrines of (1) qualified immunity and
(2) sovereign immunity.2 We affirm the judgment of
the court.
The following facts are alleged in the plaintiff’s com-
plaint. The plaintiff, a sentenced inmate at the Cheshire
Correctional Institution, wears eyeglasses because of
extreme nearsightedness and severe astigmatism. At
some point, one of the hinges on his eyeglasses broke,
causing the eyeglasses to sit improperly on his face. The
plaintiff requested to see the optometrist, was examined
approximately three months later, and was issued an
updated prescription on April 5, 2006. During the
interim period, he experienced ‘‘difficulties,’’ including
blurred and distorted vision, eye strain, headaches, diz-
ziness, loss of self-esteem, embarrassment and severe
limitation in his ability to perform daily activities. At
the time of the issuance of the prescription, Boykins,
an office assistant, asked the plaintiff to sign an inmate
fees form, which would authorize a three dollar deduc-
tion from his inmate account. The plaintiff signed the
form. He did not, however, receive the eyeglasses at
that time, because eyeglasses are made in a different
location and shipped to the Cheshire Correctional Insti-
tution.
On May 12, 2006, Boykins informed the plaintiff that
his eyeglasses had arrived and presented to the plaintiff
another inmate fees form, which would authorize
another three dollar deduction from his inmate account.
The plaintiff refused to sign the form, stating that he
already had been charged the three dollar co-pay. Boy-
kins told him that there was a new rule pursuant to the
Department of Correction’s administrative directives.
The plaintiff further questioned Boykins and showed
her administrative directive 3.12 (5) (C).3 Boykins told
the plaintiff that according to Sheryl, identified by the
plaintiff as Estrom, a nurse, he would have to pay in
accordance with the new rule. The plaintiff again
refused to sign the form, and he was sent back to his
housing unit without the new eyeglasses.
The plaintiff thereafter filed an inmate grievance, in
which he claimed that he should not have been charged
the second three dollar fee. The grievance was rejected
by Durato, a health service administrator. The plaintiff
then appealed from Durato’s decision. That appeal was
rejected by Bush, also a health service administrator.
A later grievance also based on this claim filed by the
plaintiff on February 17, 2007, was again denied, and
the plaintiff’s appeal was denied by Newbould, also a
health service administrator. At some point following
the denial by Newbould, the plaintiff agreed, ‘‘under
duress, to end his physical pain,’’ to pay the second
three dollar fee. By that time, the eyeglasses could not
be located, and the plaintiff ultimately received them
several weeks later.
The following procedural history is also relevant. The
plaintiff commenced the present action by way of a six
count complaint on April 12, 2012. In his first count,
the plaintiff asserted a claim under 42 U.S.C. § 1983,4
alleging that the defendants had violated his rights
under the eighth amendment to the United States consti-
tution.5 In the remaining counts, the plaintiff asserted
claims of intentional infliction of emotional distress,
negligent infliction of emotional distress, medical mal-
practice, negligence, and extortion and coercion. The
plaintiff sued the defendants in both their individual
and official capacities.6
On August 9, 2012, the defendants filed a motion to
dismiss the action and a supporting memorandum of
law, in which they argued that the court lacked subject
matter jurisdiction because they were protected by the
doctrines of statutory and sovereign immunity. The
plaintiff filed an objection to the motion to dismiss and
a supporting memorandum of law, in which he argued
that neither sovereign nor statutory immunity barred
his claims. He further argued that if the court were to
find that he had not alleged facts sufficient to proceed
with his claims, that he should be granted leave to
amend his complaint.
On September 17, 2012, the court, Zemetis, J., heard
oral argument on the motion to dismiss. The court there-
after granted the defendants’ motion to dismiss in a
written memorandum of decision filed on December
26, 2012. In its memorandum, the court concluded that
it lacked subject matter jurisdiction over the plaintiff’s
claims due to the application of sovereign, statutory,
and qualified immunity. On January 9, 2013, the plaintiff
filed a motion for reargument, in which he argued, inter
alia, that the court erred in sua sponte considering the
issue of qualified immunity without allowing him to be
heard. He further argued that the court should have
held an evidentiary hearing, at which he would have
had the opportunity to demonstrate the severity of his
eye condition. The motion was heard by the court, A.
Robinson, J., on April 7, 2014. At that time, the plaintiff
requested permission to file additional briefing and also
briefly mentioned his claim that Judge Zemetis improp-
erly had found facts without holding an evidentiary
hearing. The court then granted the plaintiff thirty days
to brief the immunity issues, the state fifteen days to
file a response, and ordered that oral argument be held
in sixty days. When asked by the court whether that
was what the plaintiff was looking for, the plaintiff
responded, ‘‘Sounds good, Your Honor.’’
The parties returned for oral argument before Judge
Robinson on June 2, 2014. On that date, the plaintiff
declined to argue the issue of qualified immunity,
instead arguing primarily that the state should be
required to brief and argue the issue first.7 The plaintiff
again argued that Judge Zemetis had erred in finding
facts on an inadequate record. On September 8, 2014,
the court issued an order stating that it ‘‘adopts the
ruling and reasoning in the previous memorandum of
decision, dismissing the case,’’ in which it adopted the
ruling and reasoning of Judge Zemetis’ memorandum
of decision.
The plaintiff filed the present appeal on October 16,
2013. The plaintiff appealed only from the judgment
dismissing the action. He did not file an amended appeal
from the court’s September 8, 2014 ruling on the motion
for reargument.
We begin by setting forth our standard of review. ‘‘A
motion to dismiss tests, inter alia, whether, on the face
of the record, the court is without jurisdiction. . . .
[O]ur review of the court’s ultimate legal conclusion
and resulting [determination] of the motion to dismiss
will be de novo. . . . Moreover, [t]he doctrine of sover-
eign immunity implicates subject matter jurisdiction
and is therefore a basis for granting a motion to dismiss.
. . . As we must in reviewing a motion to dismiss, we
take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader.’’ (Citation omitted; internal quotation
marks omitted.) Sullins v. Rodriguez, 281 Conn. 128,
131–32, 913 A.2d 415 (2007).
I
We first address the plaintiff’s claim that the court
improperly concluded that the defendants were entitled
to qualified immunity from liability for the plaintiff’s
§ 1983 claim against them in their individual capacities
for money damages. He further claims that the court
erred in sua sponte raising and considering qualified
immunity. We disagree with the plaintiff’s claims.
‘‘Under federal law, the doctrine of qualified immu-
nity shields officials from civil damages liability for
their discretionary actions as long as their actions could
reasonably have been thought consistent with the rights
they are alleged to have violated. . . . Qualified immu-
nity is an immunity from suit rather than a mere defense
to liability and, therefore, protects officials from the
burdens of litigation for the choices that they make in
the course of their duties. . . . Thus, the United States
Supreme Court has recognized qualified immunity for
government officials [when] it [is] necessary to preserve
their ability to serve the public good or to ensure that
talented candidates [are] not deterred by the threat of
damages suits from entering public service. . . .
Whether an official is entitled to qualified immunity
presents a question of law that must be resolved de novo
on appeal.’’ (Citations omitted.) Brooks v. Sweeney, 299
Conn. 196, 216, 9 A.3d 347 (2010).
‘‘Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct. . . .
We recently reaffirmed that lower courts have discre-
tion to decide which of the two prongs of qualified-
immunity analysis to tackle first.’’ (Citation omitted.)
Ashcroft v. al-Kidd, U.S. , 131 S. Ct. 2074, 2080,
179 L. Ed. 2d 1149 (2011); see also Traylor v. Gerratana,
148 Conn. App. 605, 612, 88 A.3d 552, cert. denied, 312
Conn. 901, 902, 91 A.3d 908, 112 A.3d 778, cert. denied,
U.S. , 135 S. Ct. 444, 190 L. Ed. 2d 336 (2014).
‘‘If no constitutional right would have been violated
were the allegations established, there is no necessity
for further inquiries concerning qualified immunity.’’
Brooks v. Sweeney, supra, 299 Conn. 217.
The basis of the plaintiff’s § 1983 claim is that the
defendants’ failure to provide him with his new eye-
glasses constituted deliberate indifference to his seri-
ous medical need in violation of the eighth amendment
to the United States constitution. ‘‘The [e]ighth [a]mend-
ment prohibits the infliction of cruel and unusual pun-
ishments. . . . This includes punishments that involve
the unnecessary and wanton infliction of pain. . . . In
order to establish an [e]ighth [a]mendment claim arising
out of inadequate medical care, a prisoner must prove
deliberate 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, suffi-
ciently serious. . . . Second, the [government official]
must act with a sufficiently culpable state of mind. . . .
An official 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].’’ (Citations omitted; internal
quotation marks omitted.) Faraday v. Commissioner of
Correction, 288 Conn. 326, 338–39, 952 A.2d 764 (2008).
We begin our analysis by determining whether the
facts alleged by the plaintiff in his complaint state a
violation of the eighth amendment. See Morgan v.
Bubar, 115 Conn. App. 603, 626, 975 A.2d 59 (2009). In
his first count, the plaintiff alleged that ‘‘[e]ach of the
. . . defendants knew or reasonably should have
known that [the plaintiff’s] prescription eyeglasses was
a serious medical need for him.’’ He alleged that ‘‘[t]he
thickness of [the plaintiff’s] eyeglass lenses was such
that a layperson would recognize his serious medical
need to wear them.’’ He further alleged, inter alia, that
the defendants, in initiating a policy that involved
assessing two co-pay fees for each eyeglass prescrip-
tion, interfered with his medical care and exhibited
deliberate indifference to his serious medical need. The
plaintiff alleged that the acts and omissions of the defen-
dants ‘‘caused [him] to be subjected to . . . unneces-
sary and wanton infliction of pain and emotional
distress,’’ which he characterized as ‘‘difficulties,’’
including ‘‘blurred and distorted vision, eye strain, head-
aches, dizziness, loss of self-esteem, embarrassment,
and . . . [severe] limit[ation] in his ability to perform
his normal daily activities.’’
In support of his claim that the defendants’ actions
constituted a violation of the eighth amendment, the
plaintiff cites Koehl v. Dalsheim, 85 F.3d 86, 87 (2d Cir.
1996), a case in which an inmate alleged that correction
officers had violated the eighth amendment by confis-
cating his eyeglasses despite his having received a doc-
tor’s permission to wear them. The eyeglasses were
‘‘specially prescribed, tinted eye-glasses, fitted with
what [the plaintiff] described as a prism . . . .’’ Id. The
United States Court of Appeals for the Second Circuit
noted that the plaintiff had ‘‘alleged that he required
the prescribed eye-glasses to avoid double vision and
the loss of depth perception that resulted from a prior
head injury.’’ Id., 88. He further had alleged that ‘‘[a]s
a result of the confiscation of his glasses and the subse-
quent denial of medical treatment, [he] ha[d] suffered
significant consequences,’’ specifically, that ‘‘[h]is left
eye, which had shifted as a result of his head injury,
has now shifted fully into the corner of the socket and
is almost sightless, and he has experienced headaches.’’
Id., 87. The court noted that ‘‘[s]uch visual deficiencies
can readily cause a person to fall or walk into objects,
and [the plaintiff] alleged that he has experienced such
occurrences, and has suffered injuries as a conse-
quence.’’ Id., 88. The court concluded that the plaintiff
had made sufficient allegations, including that his medi-
cal need was serious and that the correction officers
were aware of his need, such that his claims would
survive a motion to dismiss.8 Id.; see also Tormasi v.
Hayman, 452 Fed. Appx. 203, 206 (3d Cir. 2011) (court
concluded that a jury could find that a plaintiff’s medical
needs were serious, considering that his ‘‘vision was
significantly blurred, resulting in dizziness and imbal-
ance that caused him to fall and walk into objects. On
one occasion, he fell due to his inability to see and
dislocated his jaw.’’).
Although a plaintiff conceivably can allege a serious
deprivation on the basis of failure to provide prescrip-
tion eyeglasses, as in Koehl, the plaintiff’s allegations
in the present case are inadequate, as noted by the trial
court. First, the plaintiff in the present case alleged
neither severe pain nor deterioration of his vision as a
result of the defendants’ failure to provide him with
the new eyeglasses.9 Second, the plaintiff’s complaint
suggested that he was prompted to seek ‘‘replacement
glasses’’ after one of the hinges on his eyeglasses broke,
‘‘causing them to set on his face at an improper angle.’’
Accordingly, the trial court stated that ‘‘[a]lthough this
was probably inconvenient, the plaintiff has not alleged
that the defendants’ failure to provide new glasses left
him totally without glasses, only with glasses with a
damaged hinge.’’
Noting that medical conditions may be of ‘‘varying
severity,’’ the Second Circuit has explained that ‘‘[t]he
standard for [e]ighth [a]mendment violations contem-
plates a condition of urgency that may result in degener-
ation or extreme pain.’’ (Internal quotation marks
omitted.) Chance v. Armstrong, 143 F.3d 698, 702 (2d
Cir. 1998); see also Faraday v. Commissioner of Cor-
rection, supra, 288 Conn. 339 n.12. Our review of the
plaintiff’s complaint and the exhibits attached thereto
leads us to conclude that the facts alleged do not state
a deprivation sufficiently serious to constitute a viola-
tion of the eighth amendment. Cf. Chance v. Armstrong,
supra, 703 (plaintiff had alleged sufficiently serious con-
dition, where as a result of inadequate dental care,
he alleged to have ‘‘suffered extreme pain, his teeth
deteriorated, and he has been unable to eat properly’’).10
Because the facts alleged by the plaintiff do not state
a violation of the eighth amendment, we conclude that
the trial court properly determined that the defendants
are entitled to qualified immunity.11 Accordingly, the
court properly dismissed the plaintiff’s federal law
claims against the defendants in their individual capaci-
ties.12 See Traylor v. Gerratana, supra, 148 Conn. App.
612 (affirming judgment of dismissal, concluding that
‘‘[q]ualified immunity bars the plaintiff’s [§ 1983] claims
because he failed to establish that the legislative defen-
dants violated a statutory or constitutional right or that
their actions were not objectively reasonable’’); see also
Tuchman v. State, 89 Conn. App. 745, 763, 878 A.2d 384
(affirming judgment of dismissal after concluding, inter
alia, that ‘‘the court properly determined that [the defen-
dant] was entitled to qualified immunity as to the plain-
tiffs’ federal constitutional claims’’), cert. denied, 275
Conn. 920, 883 A.2d 1252 (2005).
II
The plaintiff next claims that the court erred in dis-
missing his official capacity claims against the defen-
dants for declaratory and injunctive relief. Specifically,
the plaintiff argues that sovereign immunity bars neither
a § 1983 action brought against state officials in their
official capacities, nor an action on the basis of a sub-
stantial claim that a state official violated the plaintiff’s
constitutional rights. We address each claim in turn and
conclude that the court properly dismissed the plain-
tiff’s claims for declaratory and injunctive relief.
A
We first turn to the plaintiff’s § 1983 claim, alleged
in the first count of his complaint, against the defen-
dants in their official capacities for declaratory and
injunctive relief. The defendants assert that sovereign
immunity bars this claim. We disagree, but nonetheless
conclude that the court properly dismissed the
§ 1983 claim.
Pursuant to § 1983, the plaintiff has brought claims
against state officials in their individual capacities for
damages and in their official capacities for injunctive
relief. We already have concluded in part I of this opin-
ion that the defendants are entitled to qualified immu-
nity from the plaintiff’s § 1983 claim seeking money
damages. We now consider whether the plaintiff is enti-
tled, pursuant to § 1983, to declaratory and injunctive
relief against the defendants in their official capacities.
We begin by noting that a state ‘‘is not a person within
the meaning of § 1983 and thus is not subject to suit
under § 1983 in either federal court or state court.’’
(Internal quotation marks omitted.) Miller v. Egan, 265
Conn. 301, 311, 828 A.2d 549 (2003). A state official
sued in his official capacity for monetary damages is
also not subject to suit under § 1983. ‘‘[A] suit against
a state official in his or her official capacity is not a
suit against the official but rather is a suit against the
official’s office. . . . As such, it is no different from a
suit against the State itself.’’ (Citation omitted.) Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.
Ct. 2304, 105 L. Ed. 2d 45 (1989). The United States
Supreme Court in Will recognized, however, on the
basis of its prior decisions in Kentucky v. Graham, 473
U.S. 159, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985), and
Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed.
714 (1908), that ‘‘a state official in his or her official
capacity, when sued for injunctive relief, would be a
person under § 1983 because official-capacity actions
for prospective relief are not treated as actions against
the State.’’ (Internal quotation marks omitted.) Will v.
Michigan Dept. of State Police, supra, 71 n.10.
This exception applies only to prospective injunctive
relief. Id. The plaintiff, in his § 1983 claim alleging that
the defendants violated the eighth amendment, claimed
that he was deprived of his right to be free from cruel
and unusual punishment when his glasses were with-
held from him in response to his refusal to sign the
second inmate fees form. In his complaint, the plaintiff
stated that he received his eyeglasses sometime after
March, 2007, and he confirmed, during oral argument
before this court, that he had received the eyeglasses.
We therefore conclude that there is no practical pro-
spective injunctive relief available to the plaintiff with
respect to his eighth amendment claim.13 Accordingly,
that claim was properly dismissed.
B
We next turn to the plaintiff’s state law claims, con-
tained in counts two through six of his complaint, for
declaratory and injunctive relief against the defendants
in their official capacities. The plaintiff alleged inten-
tional infliction of emotional distress, negligent inflic-
tion of emotional distress, medical malpractice,
negligence, and extortion and coercion. We conclude
that the court properly dismissed these claims.
‘‘[W]e have long recognized the validity of the com-
mon-law principle that the state cannot be sued without
its consent . . . . We have also recognized that
because the state can act only through its officers and
agents, a suit against a state officer concerning a matter
in which the officer represents the state is, in effect,
against the state. . . . The doctrine of sovereign immu-
nity protects the state, not only from ultimate liability
for alleged wrongs, but also from being required to
litigate whether it is so liable.’’ (Citation omitted; inter-
nal quotation marks omitted.) Manifold v. Ragaglia, 94
Conn. App. 103, 114–15, 891 A.2d 106 (2006).
‘‘Our Supreme Court has recognized three exceptions
to sovereign immunity: (1) when the legislature, either
expressly or by force of a necessary implication, statu-
torily waives the state’s sovereign immunity . . . (2)
when an action seeks declaratory or injunctive relief
on the basis of a substantial claim that the state or one
of its officers has violated the plaintiff’s constitutional
rights . . . and (3) when an action seeks declaratory
or injunctive relief on the basis of a substantial allega-
tion of wrongful conduct to promote an illegal purpose
in excess of the officer’s statutory authority.’’ (Internal
quotation marks omitted.) Traylor v. Gerratana, supra,
148 Conn. App. 610. ‘‘In the absence of a proper factual
basis in the complaint to support the applicability of
these exceptions, the granting of a motion to dismiss
on sovereign immunity grounds is proper.’’ (Internal
quotation marks omitted.) Columbia Air Services, Inc.
v. Dept. of Transportation, 293 Conn. 342, 350, 977 A.2d
636 (2009).
The plaintiff claims that the defendants acted beyond
their authority and violated his constitutional rights ‘‘in
withholding [his] eyeglasses for his refusing to pay the
unauthorized and illegal co-pay fee . . . .’’14 ‘‘The only
exceptions to sovereign immunity that would apply to
claims alleging constitutional violations and conduct in
excess of statutory authority are the second and third,
which require that the plaintiff’s claim be substantial.’’
(Emphasis added; internal quotation marks omitted.)
Traylor v. Gerratana, supra, 148 Conn. App. 610. We
conclude that the plaintiff’s claims are barred by sover-
eign immunity because they do not satisfy either of
these exceptions.
‘‘For a claim made pursuant to the second exception,
complaining of unconstitutional acts, we require that
[t]he allegations of such a complaint and the factual
underpinnings if placed in issue, must clearly demon-
strate an incursion upon constitutionally protected
interests.’’ (Emphasis added.) Columbia Air Services,
Inc. v. Dept. of Transportation, supra, 293 Conn. 350.
As we have concluded in part I of this opinion, the
plaintiff has failed to allege a deprivation sufficiently
serious to constitute a violation of the eighth amend-
ment, the constitutional provision at issue.15 Accord-
ingly, the second exception does not apply.
‘‘For a claim under the third exception, the plaintiffs
must do more than allege that the defendants’ conduct
was in excess of their statutory authority; they also
must allege or otherwise establish facts that reasonably
support those allegations.’’ (Internal quotation marks
omitted.) Id. The plaintiff claims that pursuant to § 18-
85a-3 of the Regulations of Connecticut State Agencies,
‘‘the plaintiff is entitled to prescription eyeglasses upon
assessment of one, three dollar co-pay fee . . . .’’16 Sec-
tion 18-85a-3, which the plaintiff attached to his com-
plaint, states that ‘‘[t]he inmate’s responsibility to pay
for the use of services and programs shall be in accor-
dance with the following schedule . . . (3) Eye-
glasses—$3.00 per prescription.’’ The court,
considering the allegations of the complaint in their
most favorable light and also considering the exhibits
attached to the complaint, inferred that ‘‘the plaintiff
was not wrongfully charged twice for his prescription,
but rather correctly charged one three dollar fee for
the optometrist’s visit and a separate three dollar fee
for the eyeglass prescription.’’17 We agree with the court
and therefore conclude that the plaintiff did not allege
facts sufficient to bring his claim within the exception
for conduct in excess of the defendants’ statutory
authority.
The plaintiff has clearly fallen short of meeting the
requirement that his claim be ‘‘ ‘substantial.’ ’’ Traylor
v. Gerratana, supra, 148 Conn. App. 610. Accordingly,
the court properly dismissed the state law claims for
declaratory and injunctive relief against the defendants
in their official capacities.
III
Last, the plaintiff claims that he should have been
granted leave to amend his complaint. There is nothing
in the record to suggest that the plaintiff filed a request
for leave to amend his complaint, in accordance with
Practice Book § 10-60.18 His statement in his opposition
to the defendants’ motion to dismiss, which was that
‘‘if this court disagrees [that he sufficiently had pleaded
his causes of action], the plaintiff should be granted
leave to amend the complaint in this action,’’ cannot
be considered a request to amend. See Pekera v. Purp-
ora, 273 Conn. 348, 356–57, 869 A.2d 1210 (2005) (‘‘The
plaintiffs’ reference to a possible future amendment in
their reply memorandum thus cannot be considered a
request to amend under the applicable rules of practice.
In the absence of a properly filed request to amend,
the trial court was not called upon to exercise its discre-
tion, and it correctly declined, as a matter of law, to
consider the purported amendment.’’ [Footnote omit-
ted.]). More importantly, ‘‘[o]nce a party has raised an
issue of subject matter jurisdiction, the court must
immediately act on it before proceeding to any other
action in the case.’’ (Internal quotation marks omitted.)
North Star Contracting Corp. v. Albright, 156 Conn.
App. 311, 315 n.5, 112 A.3d 216 (2015). Thus, the plain-
tiff’s claim that he should have been granted leave to
amend his complaint fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In this opinion, we refer to the individual defendants collectively as the
defendants and individually by name where appropriate.
2
The plaintiff’s complaint contained six counts. Count one was brought
pursuant to 42 U.S.C. § 1983 and alleged violation of his eighth amendment
right to be free from cruel and unusual punishment. Counts two through six
alleged various state law claims, including intentional infliction of emotional
distress, negligent infliction of emotional distress, medical malpractice, neg-
ligence, and extortion and coercion. The plaintiff brought his federal law
claims against the defendants for damages in their individual capacities and
for declaratory and injunctive relief in their official capacities. The plaintiff
asserted his state law and tort claims against the defendants in their individ-
ual and official capacities for both money damages and declaratory and
injunctive relief.
A review of the plaintiff’s appellate brief reveals that the plaintiff does
not challenge the court’s treatment of his state law claims against the defen-
dants in their individual capacities or against the defendants in their official
capacities for money damages. We, therefore, deem these claims abandoned
for purposes of this appeal.
What remains, therefore, are his claims for declaratory and injunctive relief
under federal and state law, and his claims for damages under federal law.
3
Administrative directive 3.12 (5) (C) provides: ‘‘Eyeglasses. A sentenced
inmate shall be charged three dollars ($3.00) per prescription. Attachment
A, Inmate Fees Form shall be completed after the prescription has been
written. If an inmate refuses to sign the Inmate Fees Form, a notation to
the effect shall be made, and the form signed by Health Services staff. The
completed Attachment A, Inmate Fees Form shall be forwarded to the
Inmate Trust Fund Office on a daily basis.’’
4
Section 1983 of title 42 of the United States Code provides in relevant
part: ‘‘Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .’’
5
The eighth amendment to the United States constitution provides:
‘‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.’’
6
As noted in footnote 2 of this opinion, the plaintiff brought his federal
law claims against the defendants for damages in their individual capacities
and for declaratory and injunctive relief in their official capacities. The
plaintiff asserted his state law and tort claims against the defendants in
their individual and official capacities.
7
The plaintiff did offer, however, to answer any questions that the court
might have regarding qualified immunity.
8
With regard to the officers’ subjective awareness, the court further noted
that a comment made by one of the officers supported the conclusion that
dismissal was inappropriate. Koehl v. Dalsheim, supra, 85 F.3d 87. The court
referenced the plaintiff’s allegation that after he had informed one of the
officers that the doctor’s records would document his permission to wear
the glasses, the officer had allegedly replied, ‘‘I don’t give a S t [sic], I’m
taking the glasses . . . .’’ (Internal quotation marks omitted.) Id.
9
See Bellah v. McGinnis, 1994 U.S. App. LEXIS 33541, *4 (6th Cir. Novem-
ber 23, 1994) (decision without published opinion, 42 F.3d 1388 [6th Cir.
1994] (dismissal of eighth amendment claim on basis of thirteen month
delay in receiving replacement eyeglasses proper where visual acuity had
changed only slightly and delay in filling prescription did not damage plain-
tiff’s vision); Muhammad v. King, 1994 U.S. App. LEXIS 8958, *3–*4 (8th
Cir. April 28, 1994) (decision without published opinion, 21 F.3d 432 [8th
Cir. 1994] (affirming summary judgment rendered in favor of defendants
where plaintiff did not prove the delay in providing him with eyeglasses
‘‘created an acute or escalating situation’’).
10
We further conclude, as the trial court did, that the facts as alleged by
the plaintiff do not satisfy the second prong of the eighth amendment analy-
sis, which requires a showing that the defendants acted with the requisite
deliberate indifference. ‘‘Deliberate indifference is a mental state equivalent
to subjective recklessness, as the term is used in criminal law. . . . This
mental state requires that the charged official act or fail to act while actually
aware of a substantial risk that serious inmate harm will result.’’ (Citation
omitted.) Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006).
Although he alleged, broadly, that the defendants were deliberately indif-
ferent to his serious medical needs, the plaintiff has failed to allege facts
that rise to the level of deliberate indifference. He does not provide factual
allegations that the defendants were aware of a substantial risk that he
would be subject to serious harm if they failed to provide him with his
new eyeglasses.
11
The plaintiff additionally claims that he ‘‘has been prejudiced by the
court’s failure to hold an evidentiary hearing . . . .’’ The cases cited by the
plaintiff in support of his claim that an evidentiary hearing was required
both involve a court’s dismissal of an action in which the parties had disputed
critical and material issues of fact, either by their legal memoranda or by
affidavits. See Bradley’s Appeal from Probate, 19 Conn. App. 456, 465–67,
563 A.2d 1358 (1989); Garden Mutual Benefit Assn. v. Levy, 37 Conn. Supp.
790, 792, 437 A.2d 141 (1981). In contrast, the defendants in the present
case did not dispute the plaintiff’s factual allegations. ‘‘[I]n the absence of
any disputed facts pertaining to jurisdiction, a court is not obligated to hold
an evidentiary hearing before dismissing an action for lack of jurisdiction.’’
(Internal quotation marks omitted.) Lawrence v. Weiner, 154 Conn. App.
592, 603, 106 A.3d 963, cert. denied, 315 Conn. 925, 109 A.3d 921 (2015).
Moreover, the plaintiff did not argue that such a hearing was necessary
either in his opposition to the defendants’ motion to dismiss or during the
September 17, 2012 hearing on that motion. The issue was thus not raised
before the court prior to the dismissal of the plaintiff’s complaint. The
plaintiff first raised this argument in his January 9, 2013 motion for reargu-
ment. The present appeal, however, was taken only from the judgment of
dismissal; the plaintiff did not file an amended appeal challenging the court’s
ruling on the motion for reargument, as required by Practice Book § 61-9.
Accordingly, we decline to review the plaintiff’s claim that the court erred
in refusing his request for an evidentiary hearing. See Jewett v. Jewett, 265
Conn. 669, 673 n.4, 830 A.2d 193 (2003).
12
The plaintiff also claims, as he did in his motion for reargument, that
the court erred in considering the issue of qualified immunity sua sponte
without affording him the right to be heard on that issue. Our review of
the record leads us to conclude that the plaintiff was afforded sufficient
opportunity to be heard.
First, after filing his motion for reargument, the plaintiff received the
opportunity to file additional briefing on the issue of qualified immunity
and on two occasions was given the opportunity to be heard at oral argument.
On both dates set for oral argument, the plaintiff declined the court’s invita-
tion to present an argument as to qualified immunity. Instead, at the April,
2014 hearing, he requested to file additional briefing, and at the June, 2014
hearing, his principal argument was that the state should be required to
brief and argue the issue first.
Second, the court, in its September, 2014 order, adopted Judge Zemetis’
memorandum of decision, after stating that the plaintiff had been ‘‘afforded
an additional opportunity to address issues he claimed were improperly
raised in [Judge Zemetis’] memorandum of decision . . . .’’ The plaintiff
has not filed an amended appeal challenging the September, 2014 order and,
thus, to the extent that he is claiming deficiency in the April, 2014 or June,
2014 hearings that resulted in the September, 2014 order, we decline to
review such claims.
We also decline to review the plaintiff’s claim, first raised in his reply
brief, that the trial court failed to follow the rules of practice and that he
had not waived his right to compel compliance with the rules of practice.
‘‘It is well established that [c]laims . . . are unreviewable when raised for
the first time in a reply brief.’’ (Internal quotation marks omitted.) Hane v.
Hane, 158 Conn. App. 167, 175 n.11, A.3d (2015).
13
To the extent that the plaintiff is relying on § 1983 to vindicate constitu-
tional or statutory rights afforded by the state, § 1983 is not the proper
vehicle, as that statute provides for the enforcement of federal rights. See
Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 137 L. Ed. 2d 569
(1997) (‘‘[i]n order to seek redress through § 1983 . . . a plaintiff must
assert the violation of a federal right’’ [emphasis omitted]).
14
In support of his eighth amendment claim, the plaintiff directed this
court to additional authority at oral argument. The cases noted by the
plaintiff do not support his claim; there is some relevance provided by
Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006, 108 S. Ct. 1731, 100 L.
Ed. 2d 195 (1988), in which the United States Court of Appeals for the Third
Circuit stated that prison officials may not ‘‘condition provision of needed
medical services on the inmate’s ability or willingness to pay.’’ The Third
Circuit later clarified its statement: ‘‘It is . . . apparent that the statement
in Lanzaro refers to the withholding of essential medical treatment from
an inmate who refuses to agree to pay because of indigency.’’ (Emphasis
added.) Reynolds v. Wagner, 128 F.3d 166, 174–75 (3d Cir. 1997). The court
further explained that ‘‘the deliberate indifference standard of Estelle [v.
Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)] does not guarantee
prisoners the right to be entirely free from the cost considerations that
figure in the medical-care decisions made by most non-prisoners in our
society.’’ Reynolds v. Wagner, supra, 175. The plaintiff in the present case
has not alleged that he refused to pay the co-pay because of indigency.
15
In his first count, alleging a violation of the eighth amendment, the
plaintiff additionally alleged that ‘‘[t]he defendants’ actions caused the plain-
tiff to be physically injured in violation of the fourth . . . and fourteenth
amendments to the United States constitution and article first, § 8, of the
Connecticut constitution.’’ The plaintiff claims on appeal that he ‘‘pleaded
facts sufficient to recover on both substantive and procedural due process
grounds under the fourth and fourteenth amendments,’’ and under the Con-
necticut constitution.
‘‘We do not reverse the judgment of a trial court on the basis of challenges
to its rulings that have not been adequately briefed. . . . The parties may
not merely cite a legal principle without analyzing the relationship between
the facts of the case and the law cited. . . . [A]ssignments of error which
are merely mentioned but not briefed beyond a statement of the claim will
be deemed abandoned and will not be reviewed by this court.’’ (Internal
quotation marks omitted.) Clelford v. Bristol, 150 Conn. App. 229, 233, 90
A.3d 998 (2014); see also Parnoff v. Mooney, 132 Conn. App. 512, 518, 35
A.3d 283 (2011) (‘‘[i]t is not the role of this court to undertake the legal
research and analyze the facts in support of a claim or argument when it
has not been briefed adequately’’ [internal quotation marks omitted]).
The plaintiff provided inadequate analysis of his due process and Connecti-
cut constitutional claims. He did not, in his complaint, identify the nature
of the right under the Connecticut constitution that he was alleging the
defendants had violated. In his appellate brief, the plaintiff makes conclusory
statements that he pleaded facts sufficient to recover on those grounds and
that his claims are not barred by immunity. He fails, however, to identify
the facts he claims to have alleged in support of these constitutional claims,
and his citation to case law lacks an application to the facts of his case.
Accordingly, we decline to review these claims.
16
The plaintiff further claims that Boykins acted in excess of her authority
pursuant to administrative directive 3.12, which states that ‘‘[i]f an inmate
refuses to sign the Inmate Fees Form, a notation to that effect shall be
made, and the form signed by Health Services staff . . . .’’ In the trial court,
the plaintiff argued that ‘‘they could have still processed my fees form and
assessed me that additional three dollars, but I should have been issued
my glasses. They didn’t do that.’’ We note that considering the plaintiff’s
interpretation of § 18-85a-3, which is that a second co-pay was prohibited,
processing the second three dollar co-pay against his wishes would not have
resolved his complaint.
17
The court further explained that according to the plaintiff’s allegations,
‘‘the plaintiff signed one inmate fee form on April 5, 2006, the day the plaintiff
saw the optometrist, and was requested to sign another on May 12, 2006,
when he attempted to pick up his prescription.’’ The court concluded that
‘‘[a] reading of § 18-85a-3 shows that an inmate is to be charged one, three
dollar fee for an inmate initiated medical visit and an additional three dollar
fee for a pair of eyeglasses.’’ The court’s conclusion was further supported
by reference to the first three dollar fee form, which was attached to the
plaintiff’s complaint and included a notation reading ‘‘eye doctor’’ next to
the line stating, ‘‘sick call.’’
18
Practice Book § 10-60 (a) provides: ‘‘Except as provided in Section 10-
66, a party may amend his or her pleadings or other parts of the record or
proceedings at any time subsequent to that stated in the preceding section
in the following manner:
‘‘(1) By order of judicial authority; or
‘‘(2) By written consent of the adverse party; or
‘‘(3) By filing a request for leave to file such amendment, with the amend-
ment appended, after service upon each party as provided by Sections 10-
12 through 10-17, and with proof of service endorsed thereon. If no objection
thereto has been filed by any party within fifteen days from the date of the
filing of said request, the amendment shall be deemed to have been filed
by consent of the adverse party. If an opposing party shall have objection
to any part of such request or the amendment appended thereto, such
objection in writing specifying the particular paragraph or paragraphs to
which there is objection and the reasons therefor, shall, after service upon
each party as provided by Sections 10-12 through 10-17 and with proof of
service endorsed thereon, be filed with the clerk within the time specified
above and placed upon the next short calendar list.’’