Braham v. Newbould

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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.’’