Kaminski v. Semple ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
JOHN S. KAMINSKI v. SCOTT SEMPLE ET AL.
(AC 42288)
Alvord, Moll and Norcott, Js.
Syllabus
The plaintiff inmate sought, inter alia, a declaratory judgment and injunctive
relief in connection with the alleged failure of the defendant state
employees to conduct a criminal investigation into abuse that he alleged
had been inflicted on him by a correction officer. The defendants moved
to dismiss the plaintiff’s complaint on the ground that the trial court
lacked subject matter jurisdiction because the plaintiff lacked standing
to assert a claim that was based on the alleged failure to conduct a
criminal investigation. The defendants also claimed that the plaintiff’s
claims were barred by sovereign immunity and statutory (§ 4-165) immu-
nity. The trial court granted the defendants’ motion to dismiss, conclud-
ing that the defendants were entitled to sovereign immunity and immu-
nity pursuant to § 4-165, and that the plaintiff lacked standing as to his
claim that the defendants failed to investigate the alleged abuse. The
trial rendered judgment for the defendants, and the plaintiff appealed
to this court, claiming, inter alia, that because he had sued all of the
defendants in their individual capacities, the trial court improperly con-
cluded that they were entitled to sovereign and statutory immunity.
Held that the judgment of the trial court was affirmed in part and the
appeal was dismissed in part as moot, the plaintiff on appeal having
failed to challenge the trial court’s determination that he lacked standing
to raise certain of his claims as to certain defendants, and because the
trial court’s memorandum of decision fully addressed the arguments
raised in this appeal, this court adopted the trial court’s well reasoned
decision as a proper statement of the relevant facts and the applicable
law on the issues.
Argued December 5, 2019—officially released March 17, 2020
Procedural History
Action for a judgment declaring that the defendants
hindered the plaintiff’s ability to file a criminal com-
plaint against them in violation of his civil rights and
his right to due process, and for the establishment of
reporting procedures for crimes against inmates, and
for other relief, brought to the Superior Court in the
judicial district of New Britain, where the court, Mor-
gan, J., granted the defendants’ motion to dismiss and
rendered judgment thereon, from which the plaintiff
appealed to this court. Appeal dismissed in part;
affirmed in part.
John S. Kaminski, self-represented, the appellant
(plaintiff).
Steven M. Barry, assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellees (defendants).
Opinion
PER CURIAM. The self-represented plaintiff, John S.
Kaminski, appeals from the judgment of the trial court
granting the defendants’1 motion to dismiss on the
grounds that the defendants, who are state employees,
are entitled to sovereign immunity or statutory immu-
nity pursuant to General Statutes § 4-165,2 and that the
plaintiff lacked standing to assert a claim that was based
on the defendants’ alleged failure to conduct a criminal
investigation into the abuse he claimed had been
inflicted on him by a correction officer. The plaintiff
contends that, because all of the defendants were sued
in their individual capacities, the court improperly con-
cluded that the defendants were entitled to sovereign
immunity and statutory immunity. We affirm the judg-
ment of the trial court in part and dismiss the appeal
in part as moot.
The following facts, as alleged in the plaintiff’s com-
plaint and viewed in the light most favorable to the
plaintiff, are relevant to this appeal. On November 18,
2014, the plaintiff underwent spinal surgery. On Novem-
ber 20, 2014, the plaintiff was being transferred from
John Dempsey Hospital at the University of Connecticut
Health Center in Farmington, where the surgery took
place, back to Osborn Correctional Institution in Som-
ers, where he was incarcerated at the time. Prior to
transport, ‘‘he was the victim of reckless endangerment
[in the second degree in] violation of General Statutes
[§] 53a-64, and [abuse in the first degree and abuse in
the second degree] of the elderly in violation of General
Statutes [§§] 53a-321 [and 53a-322, respectively].’’
Thereafter, the plaintiff was admitted to the Osborn
Correctional Institution infirmary, where he spent six
days before returning to the general inmate population.
On December 3, 2014, the plaintiff requested that
the defendant Captain Jeanette Maldonado file a crimi-
nal complaint against the named correction officer, a
Department of Correction (department) incident report,
and a request to secure video footage concerning the
alleged physical abuse. On December 12, 2014, unsat-
isfied with the response from Maldonado, the plain-
tiff contacted the state police. The state police subse-
quently interviewed the plaintiff on January 7, 2015.
According to the plaintiff, no additional investigation
was conducted as a result of this interview.
The plaintiff commenced this action by way of a writ
of summons and complaint on February 1, 2017.3 On
January 26, 2018, the defendants moved to dismiss the
plaintiff’s complaint on the ground that the trial court
lacked subject matter jurisdiction because (1) the plain-
tiff lacked standing to assert a claim that was based on
the defendants’ failure to conduct a criminal investiga-
tion and (2) his claims were barred by sovereign immu-
nity and statutory immunity. The court, Morgan, J.,
heard argument concerning the motion on July 30, 2018.
On October 31, 2018, the court issued its memoran-
dum of decision granting the defendants’ motion to
dismiss. To determine whether the action was brought
against the defendants in their individual or official
capacities, the court applied the four factor test set
forth in Spring v. Constantino, 168 Conn. 563, 568, 362
A.2d 871 (1975), and concluded that the defendants had
satisfied all criteria and, therefore, were sued in their
official capacities. Accordingly, sovereign immunity
applied, and the plaintiff’s complaint was barred. The
court further concluded that, to the extent that the
defendants were each sued in their individual capaci-
ties, they were entitled to statutory immunity pursuant
to § 4-165. Last, the court held that the plaintiff lacked
standing to assert any claim of failure to conduct a
criminal investigation because ‘‘a private citizen lacks
a judicially cognizable interest in the prosecution or
nonprosecution of another.’’ (Internal quotation marks
omitted.) This appeal followed.
The trial court cited three independent grounds for
granting the defendants’ motion to dismiss: (1) sover-
eign immunity; (2) statutory immunity; and (3) lack of
standing as to all defendants other than the defendant
Commissioner of Correction Scott Semple. As to the
issue of standing, the court stated that ‘‘[t]he plaintiff
is not entitled to a criminal investigation of his com-
plaint by the state’s attorney or [the] police or to a
prosecution if an investigation had taken place. Accord-
ingly, the court lacks subject matter jurisdiction to adju-
dicate the plaintiff’s claim against any of the defendants
for failure to conduct a criminal investigation . . . .’’
The plaintiff does not address the issue of standing in
his appellate brief or in his preliminary statement of
issues. ‘‘[W]here alternative grounds found by the
reviewing court and unchallenged on appeal would sup-
port the trial court’s judgment, independent of some
challenged ground, the challenged ground that forms
the basis of the appeal is moot because the court on
appeal could grant no practical relief to the complain-
ant.’’ (Internal quotation marks omitted.) Anghel v.
Saint Francis Hospital & Medical Center, 131 Conn.
App. 823, 828, 29 A.3d 179 (2011), cert. denied, 303
Conn. 929, 36 A.3d 240 (2012). Accordingly, because
the plaintiff has failed to challenge the trial court’s
determination that he lacks standing, we cannot grant
the plaintiff any practical relief with respect to his
claims and, therefore, dismiss the appeal as moot as to
the plaintiff’s claims concerning the defendants Deputy
Warden Gary Wright, Maldonado, Detective Sergeant
Jay Gershowitz, Tolland State’s Attorney Matthew C.
Gedansky, Warden Edward Maldonado, and Captain
Scott VanOundenhove. See In re Jorden R., 293 Conn.
539, 556, 979 A.2d 469 (2009) (‘‘[i]t is not the province
of appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow’’
(emphasis omitted; internal quotation marks omitted)).
As to Commissioner Semple, our examination of the
record on appeal and the briefs and arguments of the
parties persuades us that the judgment of the trial court
should be affirmed. The trial court’s memorandum of
decision fully addresses the arguments raised in the
present appeal, and we adopt its concise and well rea-
soned decision as a proper statement of the relevant
facts and applicable law on the issues presented here.4
See Kaminski v. Semple, Superior Court, judicial dis-
trict of New Britain, Docket No. CV-XX-XXXXXXX-S (Octo-
ber 31, 2018) (reprinted at 196 Conn. App. , A.3d
). It serves no useful purpose for us to repeat the
discussion contained therein. See Furka v. Commis-
sioner of Correction, 21 Conn. App. 298, 299, 573 A.2d
358, cert. denied, 215 Conn. 810, 576 A.2d 539 (1990).
The appeal is dismissed as moot as to the plaintiff’s
claims concerning the failure to conduct a criminal
investigation; the judgment is affirmed in all other
respects.
1
The defendants are Scott Semple, Commissioner of Correction; Deputy
Warden Gary Wright; Captain Jeanette Maldonado; Jay Gershowitz, a deputy
sergeant with the state police; Tolland State’s Attorney Matthew C. Gedan-
sky; Warden Edward Maldonado; and Captain Scott VanOundenhove.
2
General Statutes § 4-165 provides in relevant part: ‘‘(a) No state officer
or employee shall be personally liable for damage or injury, not wanton,
reckless or malicious, caused in the discharge of his or her duties or within
the scope of his or her employment. Any person having a complaint for
such damage or injury shall present it as a claim against the state under
the provisions of this chapter. . . .’’
3
In his complaint, the plaintiff alleged the following: As to the defendant
Commissioner of Correction Scott Semple, the plaintiff claims that Semple
failed to report a felony after being made aware that the plaintiff was a
victim of physical abuse and obstructed justice by failing (1) to establish a
directive concerning reporting procedures and (2) to secure video evidence
of the physical abuse.
As to the defendant Deputy Warden Gary Wright, the plaintiff claims that
Wright obstructed justice by failing to initiate and to investigate an incident
report concerning the physical abuse.
As to the defendant Captain Jeanette Maldonado, the plaintiff claims that
Maldonado obstructed justice by failing (1) to take action concerning a
complaint initiated by the plaintiff, (2) to secure video evidence of the
physical abuse, and (3) to report a felony or initiate a departmental inci-
dent report.
As to the defendant Detective Sergeant Jay Gershowitz, the plaintiff claims
that Gershowitz obstructed justice by failing to investigate the physical
abuse against the plaintiff.
As to the defendant Tolland State’s Attorney Matthew C. Gedansky, the
plaintiff claims that Gedansky obstructed justice by failing to investigate
and report a felony.
As to the defendant Warden Edward Maldonado, the plaintiff claims that
Maldonado obstructed justice by failing (1) to protect the plaintiff from the
physical abuse of correction officers by taking no action once he was fully
informed of the physical abuse and (2) to secure video evidence of the
physical abuse.
As to the defendant Captain Scott VanOundenhove, the plaintiff claims
that VanOundenhove obstructed justice by failing to report a felony and to
investigate the matter after he became aware that the plaintiff was a victim
of physical abuse.
4
We note that two of the cases cited in the court’s memorandum of
decision were overruled on other grounds. These cases are Antinerella v.
Rioux, 229 Conn. 479, 642 A.2d 699 (1994), and Shay v. Rossi, 253 Conn.
134, 749 A.2d 1147 (2000). Both cases were overruled in part by Miller v.
Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003), ‘‘to the extent that each of
those cases holds that sovereign immunity does not bar monetary damages
actions against state officials acting in excess of their statutory authority.’’
Our Supreme Court’s decision in Miller does not have an effect on the issues
that were before the trial court because the trial court did not rely on
Antinerella or Shay for the proposition that the plaintiff’s claim for monetary
damages in the present case was not barred. Instead, the court relied on
the facts from those cases to determine whether the defendants acted outside
the scope of their employment. We, therefore, conclude that our decision
in the present case is unaffected by Miller.