Carter v. Watson

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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).