Carter v. Watson , 181 Conn. App. 637 ( 2018 )

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ANTHONY C. CARTER v. JAMES WATSON ET AL.
(AC 39655)
Sheldon, Elgo and Bear, Js.
Syllabus
The self-represented, incarcerated plaintiff brought this action against the
defendant employees of the Department of Correction, claiming that
his rights to due process under a department administrative directive
pertaining to drug testing were violated due to a delay in his release
from restrictive housing after the defendants were informed that his
urine sample had tested negative for illicit drugs. The plaintiff also
claimed that his status prior to the defendants’ action was not fully
restored because he lost his job in the prison library. The trial court
granted in part the defendants’ motion to dismiss, concluding that sover-
eign immunity barred the plaintiff’s claims for monetary damages against
the defendants in their official capacities and that all claims against the
defendants in their individual capacities had to be dismissed because
of defective service of process. Thereafter, the court granted the defen-
dants’ motion for reargument and dismissed the plaintiff’s complaint
entirely, ruling that his claim for declaratory relief was moot because
he had been transferred out of the correctional institution at which the
defendants were employed. Held:
1. The trial court properly dismissed the plaintiff’s claim for monetary dam-
ages against the defendants in their official capacities for lack of subject
matter jurisdiction, as that claim was barred by the doctrine of sovereign
immunity; the plaintiff’s allegations did not fall under the exception to
the sovereign immunity doctrine for individuals alleged to have acted
in excess of their statutory authority, which applied only to actions for
injunctive or declaratory relief, and the plaintiff did not allege, nor was
there any evidence, that he had obtained authorization from the Claims
Commissioner to bring an action for monetary damages.
2. The trial court properly dismissed the plaintiff’s claim for declaratory
relief on the ground of mootness, as it is well established that an inmate’s
transfer from a prison facility generally moots claims for declaratory
and injunctive relief against officials at that facility, and the plaintiff’s
allegations did not satisfy the capable of repetition, yet evading review
exception to the mootness doctrine; there was no evidence that the
defendants’ action had an inherently limited duration such that it would
be strongly likely to become moot in the majority of cases in which it
arose, there was no allegation that the events at issue were part of a
systemic, systematic, ongoing, frequent or occasional pattern or practice,
the plaintiff not having alleged that he had been the subject of the same
or a similar erroneous occurrence in the approximately four years since
the occurrence at issue, and the plaintiff did not allege that his claims
were a matter of public importance.
Argued December 6, 2017—officially released May 1, 2018
Procedural History
Action to recover damages for the alleged deprivation
of the plaintiff’s due process rights, and for other relief,
brought to the Superior Court in the judicial district
New Haven, where the court, Ecker, J., granted in part
the defendants’ motion to dismiss; thereafter, the court
granted the defendants’ motion for reargument and ren-
dered judgment dismissing the action, from which the
plaintiff appealed to this court. Affirmed.
Anthony C. Carter, self-represented, the appellant
(plaintiff).
Steven R. Strom, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellees (defendants).
Opinion
BEAR, J. The self-represented plaintiff, Anthony C.
Carter, appeals from the judgment of the trial court
dismissing his action against the defendants, the attor-
ney general for the state of Connecticut and four state
employees,1 in their official and individual capacities,
on the grounds of sovereign immunity, lack of personal
jurisdiction due to insufficient service of process, and
mootness. On appeal, the plaintiff asserts that the court
erred in dismissing his action against the defendants
in their official capacities because his allegations fall
within (1) an exception to the doctrine of sovereign
immunity and (2) the capable of repetition, yet evading
review exception to mootness.2 We affirm the judgment
of the court.
The following facts alleged in the complaint and pro-
cedural history are relevant to this appeal. In a com-
plaint dated June 9, 2015, the plaintiff, then an inmate
at Cheshire Correctional Institution in Cheshire, alleged
that on July 17, 2014, he was subject to a random urinaly-
sis test pursuant to Department of Correction Adminis-
trative Directive 6.8. The plaintiff was informed that his
urine sample tested positive for amphetamines.
According to protocol, a positive test result requires
the sample to be sent to an outside laboratory for confir-
matory testing. The plaintiff was placed in restrictive
housing while awaiting the results of the confirmatory
test. On July 22, 2014, correctional institution officials
were informed that the plaintiff’s urine sample tested
negative for amphetamines and methamphetamines.
More than twenty-four hours later, the plaintiff was still
in restrictive housing. According to the administrative
directive, when the ‘‘outside laboratory urinalysis
results are negative . . . the inmate’s status prior to
any administrative action taken shall be restored.’’ The
plaintiff alleged that, following the negative test results,
‘‘he was not restored to his prior status as a ticket or
trouble free inmate, nor his employment in the library
area . . . .’’
The plaintiff averred that the defendants either were
involved in a conspiracy to deprive or ‘‘reckless[ly] dis-
regard[ed] . . . the plaintiff’s due process rights
afforded [to] him by administrative directive 6.8.’’ For
relief, the defendant sought monetary damages from
the defendants in their official and individual capacities,
a jury trial and ‘‘[a] declaratory judgment declaring what
[his] due process rights [were] or are.’’ On August 7,
2014, approximately three weeks after the random uri-
nalysis test was administered, the plaintiff was trans-
ferred to MacDougall-Walker Correctional Institution
in Suffield. The plaintiff subsequently was transferred
to Corrigan-Radgowski Correctional Institution in
Uncasville.
The defendants were served with process on July 20,
2015, by a state marshal who left the writ of summons
and complaint at the Office of the Attorney General.
On August 12, 2015, the defendants filed a motion to
dismiss the plaintiff’s complaint on the grounds of lack
of personal jurisdiction, sovereign immunity, and moot-
ness. On February 18, 2016, the court granted the
motion to dismiss in part, stating that (1) sovereign
immunity barred any claims for monetary damages
against the defendants in their official capacities, and
(2) claims against the defendants in their individual
capacities were dismissed for defective service of pro-
cess. The court denied the motion to dismiss as to the
plaintiff’s claim for declaratory relief. Subsequently, on
August 16, 2016, the court granted the defendants’
motion to reargue and dismissed the plaintiff’s com-
plaint entirely, stating that the plaintiff’s claim for
declaratory relief was moot because he had been trans-
ferred out of the correctional institution at which the
defendants were employed. This appeal followed.
Our standard of review on a motion to dismiss is
well established. ‘‘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. . . . When a . . .
court decides a jurisdictional question raised by a pre-
trial motion to dismiss, it must consider the allegations
of the complaint in their most favorable light. . . . In
this regard, a court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader. . . . The motion
to dismiss . . . admits all facts which are well pleaded,
invokes the existing record and must be decided upon
that alone.’’ (Internal quotation marks omitted.) Gold v.
Rowland, 296 Conn. 186, 200–201, 994 A.2d 106 (2010).
I
We first address the plaintiff’s claim that the court
erred by dismissing his action against the defendants
in their official capacities on the ground of sovereign
immunity. The plaintiff argues that his complaint con-
tained sufficient allegations to fall within an exception
to the doctrine of sovereign immunity; specifically, that
the defendants’ conduct was in excess of their statutory
authority derived from Department of Correction
Administrative Directive 6.8.
‘‘Sovereign immunity relates to a court’s subject mat-
ter jurisdiction over a case, and therefore presents a
question of law over which we exercise de novo review.
. . . In so doing, we must decide whether [the trial
court’s] conclusions are legally and logically correct
and find support in the facts that appear in the record.
. . . The principle that the state cannot be sued without
its consent, or sovereign immunity, is well established
under our case law. . . . It has deep roots in this state
and our legal system in general, finding its origin in
ancient common law. . . . Not only have we recog-
nized the state’s immunity as an entity, but [w]e 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 repre-
sents the state is, in effect, against the state. . . .
Exceptions to this doctrine are few and narrowly con-
strued under our jurisprudence. . . .
‘‘[T]he sovereign immunity enjoyed by the state is
not absolute. There are [three] exceptions: (1) when the
legislature, either expressly or by force of a necessary
implication, statutorily 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 allegation of wrongful conduct to pro-
mote an illegal purpose in excess of the officer’s statu-
tory authority. . . . 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. . . . 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.’’ (Citations omitted; internal quota-
tion marks omitted.) Columbia Air Services, Inc. v.
Dept. of Transportation, 293 Conn. 342, 349–50, 977
A.2d 636 (2009).
Our Supreme Court has held that the exception to
sovereign immunity for individuals alleged to have
acted in excess of their statutory authority applies only
to actions for injunctive or declaratory relief. Miller v.
Egan, 265 Conn. 301, 321, 828 A.2d 549 (2003). ‘‘The
reason for this qualification was to protect the state
from significant interference with its functions and to
limit the rule to declaratory or injunctive suits, in which
the trial court carefully can tailor the relief.’’ (Internal
quotation marks omitted.) Columbia Air Services, Inc.
v. Dept. of Transportation, supra, 293 Conn. 351. Fur-
thermore, ‘‘a plaintiff who seeks to bring an action for
monetary damages against the state must first obtain
authorization from the claims commissioner.’’ Miller v.
Egan, supra, 317; see also General Statutes § 4-141 et
seq.; DaimlerChrysler Corp. v. Law, 284 Conn. 701, 723,
937 A.2d 675 (2007).
In the present case, the court determined that ‘‘elev-
enth amendment sovereign immunity bars any due pro-
cess claim for monetary damages brought against [the]
defendants in their official capacities.’’ We agree.
Although the plaintiff argues that his allegations fall
under the third exception, the third exception relates
only to claims for declaratory or injunctive relief.3 Addi-
tionally, the plaintiff has neither alleged, nor is there
any evidence in the record to establish, that he has
obtained authorization from the Claims Commissioner
to bring this action for monetary damages. Accordingly,
the doctrine of sovereign immunity bars the plaintiff’s
claims for monetary relief. This is our well established
jurisprudence. See, e.g., Klemonski v. University of
Connecticut Health Center, 141 Conn. App. 106, 60 A.3d
1002, cert. denied, 308 Conn. 930, 64 A.3d 121 (2013);
Kenney v. Weaving, 123 Conn. App. 211, 1 A.3d 1083
(2010); Bloom v. Dept. of Labor, 93 Conn. App. 37, 888
A.2d 115, cert. denied, 277 Conn. 912, 894 A.2d 992
(2006). Because the doctrine of sovereign immunity
applies, the court properly dismissed the plaintiff’s
claim for monetary damages against the defendants in
their official capacities for lack of subject matter juris-
diction.
II
Next, we address the plaintiff’s argument that the
court erred in dismissing his claim for declaratory relief
on the ground of mootness, which was based on his
assertion that his allegations fall within the capable of
repetition, yet evading review exception. The plaintiff,
in his brief, admits that ‘‘[i]t is well established that an
inmate[’s] transfer from a prison facility generally
moots claims for declaratory and injunctive relief
against officials of that facility.’’ Nevertheless, he con-
tends that his claim is not moot because he could be
subject to random urinalysis tests at any state correc-
tional institution. Our only inquiry is whether the capa-
ble of repetition, yet evading review exception applies
to the plaintiff’s claim. We conclude that it does not.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
this court’s subject matter jurisdiction. . . . Justicia-
bility requires (1) that there be an actual controversy
between or among the parties to the dispute . . . (2)
that the interests of the parties be adverse . . . (3) that
the matter in controversy be capable of being adjudi-
cated by judicial power . . . and (4) that the determi-
nation of the controversy will result in practical relief
to the complainant. . . . An actual controversy must
exist not only at the time the appeal is taken, but also
throughout the pendency of the appeal. . . . When,
during the pendency of an appeal, events have occurred
that preclude an appellate court from granting any prac-
tical relief through its disposition of the merits, a case
has become moot.’’ (Citations omitted; internal quota-
tion marks omitted.) Renaissance Management Co. v.
Barnes, 175 Conn. App. 681, 685–86, 168 A.3d 530
(2017).
An otherwise moot question may qualify for review
under the capable of repetition, yet evading review
exception to the mootness doctrine. In re Priscilla A.,
122 Conn. App. 832, 836, 2 A.3d 24 (2010). ‘‘To qualify
under the capable of repetition, yet evading review
exception, three requirements must be met. First, the
challenged action, or the effect of the challenged action,
by its very nature must be of a limited duration so that
there is a strong likelihood that the substantial majority
of cases raising a question about its validity will become
moot before appellate litigation can be concluded. Sec-
ond, there must be a reasonable likelihood that the
question presented in the pending case will arise again
in the future, and that it will affect either the same
complaining party or a reasonably identifiable group
for whom that party can be said to act as surrogate.
Third, the question must have some public importance.
Unless all three requirements are met, the appeal must
be dismissed as moot.’’ (Internal quotation marks omit-
ted.) Renaissance Management Co. v. Barnes, supra,
175 Conn. App. 686–87; accord Loisel v. Rowe, 233 Conn.
370, 383–88, 660 A.2d 323 (1995) (requirements known
as the Loisel factors).
‘‘The first element in the analysis pertains to the
length of the challenged action. . . . The basis for this
element derives from the nature of the exception. If an
action or its effects is not of inherently limited duration,
the action can be reviewed the next time it arises, when
it will present an ongoing live controversy. Moreover,
if the question presented is not strongly likely to become
moot in the substantial majority of cases in which it
arises, the urgency of deciding the pending case is sig-
nificantly reduced. Thus, there is no reason to reach
out to decide the issue as between parties who, by
hypothesis, no longer have any present interest in the
outcome. . . . [A] party typically satisfies this prong if
there exists a functionally insurmountable time [con-
straint] . . . or the challenged action had an intrinsi-
cally limited lifespan.’’ (Internal quotation marks
omitted.) Renaissance Management Co. v. Barnes,
supra, 175 Conn. App. 687.
Analysis under the second requirement ‘‘entails two
separate inquiries: (1) whether the question presented
will recur at all; and (2) whether the interests of the
people likely to be affected by the question presented
are adequately represented in the current litigation.
. . . Commonly referred to as the surrogacy concept,
that second inquiry requires some nexus between the
litigating party and those people who may be affected
by the court’s ruling in the future.’’ (Citation omitted;
internal quotation marks omitted.) Doe v. Hartford
Roman Catholic Diocesan Corp., 96 Conn. App. 496,
500–501, 900 A.2d 572, cert. denied, 280 Conn. 938, 910
A.2d 217 (2006).
In the present case, the plaintiff argues that his allega-
tions satisfy the requirements of the exception. Under
the first requirement, the length of the challenged
action, he asserts that he was placed in restrictive hous-
ing from July 17 through August 7, 2014, when he was
transferred to another facility, and that this ‘‘duration
was too short to be fully litigated prior to cessation or
expiration . . . .’’ Under the second requirement, the
reasonable likelihood that the question will arise again,
the plaintiff argues that ‘‘there is a reasonable expecta-
tion that he will be subject to the same [random urinaly-
sis testing] again’’ at any correctional institution in the
state. The plaintiff did not allege that the third require-
ment is also satisfied, i.e., that his claims are a matter
of public importance.
A reasonable interpretation of the plaintiff’s allega-
tions is that he was aggrieved due to the delay in his
release from restrictive housing after the correctional
institution officials were informed that his urine sample
tested negative for amphetamines and methamphet-
amines, and that his prior status was not fully restored
because he lost his job in the library due to his transfer
to a different correctional institution. Although the
plaintiff alleged that he was placed in restrictive housing
for a limited duration in this specific instance, there is
no evidence of the challenged action having an inher-
ently limited duration or intrinsically limited life-
span. Moreover, there is no evidence in the record that
such actions will be ‘‘strongly likely to become moot
in the substantial majority of cases in which [they arise]
. . . .’’ (Internal quotation marks omitted.) Renais-
sance Management Co. v. Barnes, supra, 175 Conn.
App. 687. The court noted that there was no allegation
in the plaintiff’s complaint that the events giving rise to
his claims were ‘‘part of a systemic, systematic, ongoing,
frequent or even occasional pattern or practice at [any
correctional institution].’’ We note that the plaintiff has
not alleged in any way that he has been the subject
of the same or a similar erroneous occurrence in the
approximately four years that have passed since the
occurrence of which he complains. The plaintiff’s claim
of possible repetition thus is, at best, speculative. With-
out a more detailed record, we cannot conclude, in the
absence of any allegation by the plaintiff, that he has
satisfied the public importance requirement. ‘‘Unless
all three requirements are met, the appeal must be dis-
missed as moot.’’ (Internal quotation marks omitted.)
Burbank v. Board of Education, 299 Conn. 833, 840,
11 A.3d 658 (2011). Not only has the plaintiff failed to
meet all three requirements to qualify under the capable
of repetition, yet evading review exception to an other-
wise moot claim, he has failed to establish any of the
three requirements for such an exception.4 Accordingly,
the court properly dismissed the plaintiff’s claim for
declaratory relief for lack of subject matter jurisdiction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The complaint named four Department of Correction employees, Captain
James Watson, Lieutenant Brett Mollins, Officer Christopher Kelly, and Offi-
cer Jason Hogan. Although the fifth defendant, the attorney general for the
state of Connecticut, was served with process, the complaint made no
allegations against him.
2
On appeal, the plaintiff does not challenge the court’s dismissal of the
action against the defendants in their individual capacities for lack of per-
sonal jurisdiction due to insufficient service of process. See Harnage v.
Lightner, 328 Conn. 248, 255, A.3d (2018) (court properly dismissed
action against defendants in their individual capacities for lack of personal
jurisdiction due to insufficiency of service of process).
3
To the extent that the plaintiff also argues that his allegations fall under
the second exception to sovereign immunity, that argument is inadequately
briefed; accordingly, we need not address it. See Estate of Rock v. University
of Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016). Nevertheless, the
same analysis would apply to the second exception, as it applies only to
claims for declaratory or injunctive relief.
4
To the extent that the plaintiff directly or indirectly hoped or intended
to represent or rely on the interests of other inmates, as obliquely stated
in his oral argument, because he is self-represented he cannot do so. ‘‘The
authorization to appear pro se is limited to representing one’s own cause, and
does not permit individuals to appear pro se in a representative capacity.’’
Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34
Conn. App. 543, 546, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d
1018 (1994).