Miller v. Doe

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OMAR J. MILLER v. JON DOE ET AL.

(AC 43845)

Bright, C. J., and Alvord and Norcott, Js.

Syllabus

The plaintiff, an inmate in a state correctional institution, sought to recover

damages from the defendant M, an employee of the Department of

Correction, in his individual capacity, pursuant to federal law (42 U.S.C.

§ 1983), for the alleged violation of his federal constitutional rights in

connection with a motor vehicle accident during which he sustained

injuries. The plaintiff, who was being transported to and from a medical

appointment in a vehicle operated by M, was placed in full restraints

in the rear seat of the vehicle, in which there was not enough room for

the plaintiff to sit upright. The plaintiff informed M that the vehicle was

too small, but M said that he could not obtain a larger vehicle. The

plaintiff did not ask M to secure his seat belt, and M did not check to

see if the seat belt was fastened. On the return trip, M drove erratically

and in excess of the speed limit, ultimately colliding with another vehicle.

The plaintiff alleged that M had violated his civil rights under the eighth

amendment to the United States constitution, claiming that M’s failure

to abide by reasonable safety standards while transporting him gave

rise to a claim of deliberate indifference. The trial court denied M’s

motion for summary judgment, finding that there was a disputed question

of fact as to whether M knew and was indifferent to an excessive risk

to the plaintiff’s health and safety. On M’s appeal to this court from the

denial of his motion for summary judgment, held that the trial court

erred in holding that M was not entitled to qualified immunity, as the

allegations in the plaintiff’s complaint and the record before the court

did not give rise to a claim for deliberate indifference because no federal

precedent clearly established that M’s conduct violated the eighth

amendment constitutional right against cruel and unusual punishment:

the Court of Appeals for the Second Circuit, in Jabbar v. Fischer (683

F.3d 54), held that the failure of prison officials to provide inmates with

seat belts does not, without more, violate the eighth amendment, and

other federal courts have held the same and largely have held that

dangerous road conditions, distracted driving and speeding while trans-

porting inmates do not give rise to a claim for deliberate indifference;

moreover, in the few instances in which a federal court has found

that a constitutional violation occurred during the transportation of an

inmate, the plaintiff typically has alleged that he was not seat belted,

the defendant purposefully drove in a reckless manner and the plaintiff

asked the defendant to fasten his seat belt or to drive more safely but

the defendant ignored the requests, and, in the present case, the plaintiff

neither alleged nor presented evidence that he requested to be seat

belted, requested that M drive more safely or requested that M obtain

a larger vehicle for safety rather than for comfort; furthermore, M’s

conduct was not severe enough to constitute an obvious constitutional

violation in the absence of clearly established law, as the present case

involved a motor vehicle accident with circumstances under which no

federal court has found an eighth amendment violation.

Argued March 9—officially released July 26, 2022

Procedural History

Action to recover damages for the alleged violation

of the plaintiff’s federal constitutional rights, and for

other relief, brought to the Superior Court in the judicial

district of Hartford, where the court, Elgo, J., denied

the motion to dismiss filed by the defendant Joshua

Medina; thereafter, the court, Moukawsher, J., denied

the motion for summary judgment filed by the defen-

dant Joshua Medina, and the defendant Joshua Medina

appealed to this court. Reversed; judgment directed.

Janelle R. Medeiros, assistant attorney general, with

whom, on the brief, were William Tong, attorney gen-

eral, and Clare Kindall, solicitor general, for the appel-

lant (defendant Joshua Medina).

Omar J. Miller, self-represented, the appellee (plain-

tiff).

Opinion

BRIGHT, C. J. The defendant Joshua Medina, a cen-

tral transportation unit officer for the Department of

Correction (department), appeals from the trial court’s

denial of his motion for summary judgment in the action

brought by the self-represented plaintiff, Omar J. Miller,

pursuant to 42 U.S.C. § 1983, alleging deliberate indiffer-

ence in violation of the eighth amendment to the United

States constitution.1 On appeal, the defendant claims

that the court improperly denied his motion for sum-

mary judgment because he is entitled to qualified immu-

nity from the plaintiff’s claim.2 We agree and, accord-

ingly, reverse the judgment of the trial court.

The record before the court, when viewed in the light

most favorable to the plaintiff as the nonmoving party,

reveals the following facts and procedural history. At

the time of the events underlying the present case, the

plaintiff was an incarcerated inmate in the custody of

the department at the MacDougall-Walker Correctional

Institution (MacDougall-Walker) in Suffield.3 On July 3,

2013, the plaintiff was transported by the defendant

from MacDougall-Walker to the University of Connecti-

cut’s Jack Dempsey Hospital (hospital) in Farmington

for a medical appointment. Prior to the trip, the defen-

dant placed the plaintiff in full restraints, which included

‘‘handcuffs, leg irons, a belly chain, a tether chain, and

a ‘black box.’ ’’4

After the defendant placed those restraints on the

plaintiff, the defendant escorted him outside to a Ford

Crown Victoria motor vehicle (vehicle), which had been

assigned to the defendant for the plaintiff’s transporta-

tion. The defendant did not choose that particular vehi-

cle or have the authority or ability to obtain a different

vehicle. The vehicle had been modified to include a

metal barrier between the front and rear seats. Because

of that barrier, there was not enough space for the

plaintiff to sit upright in the rear seat. Upon seeing the

vehicle’s modified interior, the plaintiff informed the

defendant that the vehicle was too small, but the defen-

dant told him just to lie down on the rear seat instead

of sitting upright. The plaintiff then asked the defendant

if he could get a larger vehicle, to which the defendant

responded, ‘‘No,’’ and again told the plaintiff to lie down

on the rear seat, which he did.

Once in the vehicle, the plaintiff was unable to put

his seat belt on because of his restraints and how he

was forced to lie on the rear seat. The defendant never

checked to see if the plaintiff’s seat belt was fastened

or offered to fasten his seat belt, despite a department

policy that requires inmates to be seat belted during

transit. The plaintiff also never asked the defendant to

secure his seat belt.

While traveling to the hospital, the defendant exceeded

the speed limit, but he and the plaintiff reached the

hospital without incident. After the plaintiff’s appoint-

ment, he was placed in the same vehicle and again lay

down on the rear seat. During the trip back to MacDou-

gall-Walker, the defendant drove ‘‘erratically’’ by weav-

ing in and out of traffic, making sharp turns, and, at

one point, driving thirty miles per hour above the speed

limit. The plaintiff never commented on the defendant’s

driving or asked him to slow down.

While traveling along Route 159 in Windsor Locks,

the defendant noticed a car ahead at the traffic light

that had stopped in both the left and right lanes and

appeared to be attempting to make a left hand turn

from the right lane. The defendant thought that there

was enough room for him to continue straight in the

right lane and slip past the stopped car. He was mis-

taken, however, and struck the right rear side of the

stopped car. During the collision, the plaintiff was

launched into the metal barrier and lost consciousness.

After he regained consciousness, ‘‘his body was wedged

between the [rear] seat and the metal barrier and his

head was pinned between the metal barrier and the

[vehicle] door.’’

Immediately after the crash, the defendant called

emergency services and department personnel, who

quickly responded to the scene of the accident. The

defendant then checked on the driver of the other car5

and the plaintiff. According to the defendant’s evalua-

tion of the plaintiff, the plaintiff was not at risk of

immediate harm. The plaintiff later was transported by

ambulance to Hartford Hospital so that he could receive

medical treatment for the injuries he had suffered in

the crash. According to the plaintiff, the accident caused

injuries and pain to his head, neck, back, knee, and

shoulder.

Thereafter, on September 12, 2013, the plaintiff filed

a complaint against the defendant and Jon Doe; see

footnote 1 of this opinion; alleging that the defendant

had violated the plaintiff’s civil rights under the eighth

amendment to the United States constitution.6 Specifi-

cally, the plaintiff claimed that the defendant and Doe’s

failure to abide by reasonable safety standards while

transporting him gave rise to a claim for deliberate

indifference pursuant to § 1983.7 On January 23, 2014,

the plaintiff filed an amended complaint. The defendant

then filed a request for the plaintiff to revise his com-

plaint, wherein he asked him to ‘‘[s]eparate [the] claims

against each defendant into separate counts.’’ On June

23, 2014, in accordance with that request to revise,

the plaintiff filed the operative complaint,8 in which he

alleged in relevant part that the defendant had acted

with deliberate indifference to his safety while trans-

porting him from the hospital to MacDougall-Walker

(count two).9 That claim was brought against the defen-

dant in his individual capacity.

The defendant then filed a motion to dismiss, alleging

that the plaintiff’s claim was ‘‘barred by qualified immu-

nity’’ because the allegations in the operative complaint

did not establish that the defendant had violated clearly

established law, given that federal precedent does not

require an inmate to be seat belted during transit. The

plaintiff opposed the defendant’s motion to dismiss,

arguing that the defendant had violated his constitu-

tional right to be free from cruel and unusual punish-

ment when the defendant’s ‘‘reckless behavior led to

[the plaintiff] being subjected [to] physical harm when

[the defendant] was ‘driving erratically and in excess

of speed limits.’ ’’ The plaintiff further argued that,

because he had sued the defendant in his individual

capacity, qualified immunity did not apply.

On May 5, 2017, by way of a memorandum of decision,

the court, Elgo, J., denied the defendant’s motion to

dismiss after finding that the plaintiff had ‘‘alleged suffi-

cient facts to support the claim that it was not objec-

tively reasonable for the defendant to believe his acts

were lawful.’’ The court specifically held: ‘‘[T]he plain-

tiff has . . . meticulously and carefully alleged that the

defendant was not only aware of the risk of harm to

the plaintiff but then disregarded that risk by acting

with deliberate indifference to his physical safety, spe-

cifically in his failure to abide by [department] adminis-

trative directives requiring [seat belts]. . . . Given the

allegations that the defendant knew that the plaintiff

would be at serious risk of injury in the event of a

collision, given that the defendant was alleged to be

aware of the requirement that inmates must be seat

belted, and given the allegations that the defendant

drove erratically and unsafely while the plaintiff was not

safely secured, this court concludes that the plaintiff’s

action is not barred by qualified immunity.’’ (Internal

quotation marks omitted.)

On May 25, 2017, the defendant filed a motion for

reconsideration of the court’s denial of his motion to

dismiss, reiterating his claim that he had not violated

a clearly established right and was thus entitled to quali-

fied immunity. In a memorandum of decision dated

November 24, 2017, the court granted the defendant’s

motion for reconsideration but again denied the defen-

dant’s motion to dismiss.

In its memorandum of decision, the court specifically

addressed the defendant’s contention that he had not

violated a clearly established constitutional right, stat-

ing: ‘‘Although there were no published decisions from

the [United States Court of Appeals for the] Second

Circuit addressing [the] specific factual situation [in the

present case] at the time of the alleged conduct . . .

the absence of case law directly on point is not disposi-

tive.’’ The court then held, based largely on precedent

from the Eighth Circuit, that the plaintiff’s complaint

sufficiently alleged ‘‘a violation of a clearly established

constitutional right—namely, that prison employees

may not subject an inmate to a substantial risk of seri-

ous harm while transporting them in a vehicle. Given

that the plaintiff has alleged that the defendant drove

erratically and recklessly, notwithstanding the defen-

dant’s knowledge of regulations requiring seat belts as

well as the plaintiff’s expressed concern for his safety,

the court concludes that the defendant is not entitled

to qualified immunity.’’

Thereafter, the defendant filed a motion for summary

judgment, wherein he again argued that he was entitled

to qualified immunity because he had not violated a

clearly established constitutional right.10 The plaintiff

filed an objection to the defendant’s motion for sum-

mary judgment, arguing that the defendant was not

entitled to qualified immunity because (1) he was being

sued in his personal capacity, not his official capacity,

and (2) his failure to follow department policies when

transporting the plaintiff demonstrated the defendant’s

deliberate indifference to the plaintiff’s health and

safety.

On January 13, 2020, the court, Moukawsher, J., held

a hearing on the defendant’s motion for summary judg-

ment. At the hearing, the defendant argued that sum-

mary judgment was proper because he was entitled to

qualified immunity on the plaintiff’s deliberate indiffer-

ence claim, given that he had not violated a clearly

established right and that ‘‘the circumstances [in the

present case do not] rise to the level of an obvious

excessive risk to the plaintiff’s safety.’’ In response, the

plaintiff argued that the defendant’s actions constituted

deliberate indifference because the defendant had put

the plaintiff in the vehicle fully shackled and without

a seat belt and then had driven ‘‘fast and erratically.’’11

After the hearing, the court denied the defendant’s

motion for summary judgment from the bench, stating:

‘‘I find that there’s a disputed question of fact as to

whether the officer knew and was indifferent to an

excessive risk to the inmate’s health and safety. And

for those reasons, summary judgment [is] denied.’’ The

court further explained its decision in a written ruling

that was issued the same day: ‘‘[T]here is a genuinely

disputed question of fact as to whether the officer knew

and was indifferent to an excessive risk to the inmate’s

health and safety. A reasonable jury could believe such

was the case. If it does, any immunity claim would . . .

fail as a matter of law and reckless conduct would be

proved.’’ The court did not, in either its oral or written

ruling, analyze whether the plaintiff had alleged a con-

stitutional right that was clearly established at the time

of the challenged conduct. The defendant then appealed

from the court’s denial of his motion for summary judg-

ment.

We begin by setting forth the applicable standards

of review. ‘‘The standard of review of a trial court’s

[ruling on] summary judgment is well established. Prac-

tice Book § 17-49 provides that summary judgment shall

be rendered forthwith if the pleadings, affidavits and

any other proof submitted show that there is no genuine

issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. In deciding

a motion for summary judgment, the trial court must

view the evidence in the light most favorable to the

nonmoving party. . . . Our review of the trial court’s

decision to [deny] the defendant’s motion for summary

judgment is plenary. . . . On appeal, we must deter-

mine whether the legal conclusions reached by the trial

court are legally and logically correct and whether they

find support in the facts set out in the memorandum

of decision of the trial court.’’ (Internal quotation marks

omitted.) Gonzalez v. O & G Industries, Inc., 341 Conn.

644, 679–80, 267 A.3d 766 (2021). Moreover, ‘‘[w]hether

an official is entitled to qualified immunity presents a

question of law that must be resolved de novo on

appeal.’’ Fleming v. Bridgeport, 284 Conn. 502, 518, 935

A.2d 126 (2007).

We now set forth the relevant law with regard to

qualified immunity. ‘‘[A] claim for qualified immunity

from liability for damages under § 1983 raises a question

of federal law . . . and not state law. Therefore, in

reviewing these claims of qualified immunity we are

bound by federal precedent, and may not expand or

contract the contours of the immunity available to gov-

ernment officials. . . . Furthermore, in applying fed-

eral law in those instances where the United States

Supreme Court has not spoken, we generally give spe-

cial consideration to decisions of the Second Circuit

. . . .’’ (Internal quotation marks omitted.) Morgan v.

Bubar, 115 Conn. App. 603, 625, 975 A.2d 59 (2009).

‘‘Qualified immunity balances two important inter-

ests—the need to hold public officials accountable

when they exercise power irresponsibly and the need

to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.’’

Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808,

172 L. Ed. 2d 565 (2009). ‘‘[The] standard for determin-

ing whether an officer is entitled to qualified immunity

. . . is forgiving and protects all but the plainly incom-

petent or those who knowingly violate the law.’’ (Inter-

nal quotation marks omitted.) Amore v. Novarro, 624

F.3d 522, 530 (2d Cir. 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.’’ (Internal quotation marks omit-

ted.) Braham v. Newbould, 160 Conn. App. 294, 302,

124 A.3d 977 (2015); see also Morgan v. Bubar, supra,

115 Conn. App. 625 (‘‘[q]ualified immunity shields gov-

ernment officials performing discretionary functions

from liability for civil damages insofar as their conduct

does not violate clearly established statutory or consti-

tutional rights of which a reasonable person would have

known’’ (internal quotation marks omitted)). Courts are

‘‘permitted to exercise their sound discretion in decid-

ing which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circum-

stances in the particular case at hand.’’ Pearson v. Cal-

lahan, supra, 236; see also Edrei v. Maguire, 892 F.3d

525, 532 (2d Cir. 2018) (plaintiff’s ‘‘[f]ailure to establish

either prong’’ entitles defendant to qualified immunity),

cert. denied, U.S. , 139 S. Ct. 2614, 204 L. Ed.

2d 263 (2019). In this opinion, we focus on the second

prong of the test, namely, whether the alleged constitu-

tional right was clearly established at the time of the

defendant’s conduct.

‘‘To determine whether a right is clearly established,

we look to (1) whether the right was defined with rea-

sonable specificity; (2) whether Supreme Court or court

of appeals case law supports the existence of the right

in question, and (3) whether under preexisting law a

reasonable defendant would have understood that his

or her acts were unlawful. . . . Even if [the Second

Circuit] or other circuit courts have not explicitly held

a . . . course of conduct to be unconstitutional, the

unconstitutionality of that . . . course of conduct will

nonetheless be treated as clearly established if deci-

sions by this or other courts clearly foreshadow a partic-

ular ruling on the issue . . . even if those decisions

come from courts in other circuits . . . .’’ (Citations

omitted; internal quotation marks omitted.) Scott v.

Fischer, 616 F.3d 100, 105 (2d Cir. 2010). ‘‘Courts do

not require a case directly on point, but existing prece-

dent must have placed the statutory or constitutional

question beyond debate.’’ (Internal quotation marks

omitted.) Walker v. Schult, 717 F.3d 119, 125–26 (2d

Cir. 2013). Moreover, ‘‘[t]he right the official is alleged

to have violated must have been clearly established in

a more particularized, and hence more relevant, sense.’’

(Internal quotation marks omitted.) Anderson v.

Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed.

2d 523 (1987); see also White v. Pauly, 580 U.S. 73,

79, 137 S. Ct. 548, 196 L. Ed. 2d 463 (2017) (‘‘clearly

established law should not be defined at a high level

of generality’’). ‘‘If an official’s conduct did not violate

a clearly established constitutional right . . . then he

is protected by qualified immunity.’’ Walker v. Schult,

supra, 126.

We next set forth the relevant law with regard to

the eighth amendment and deliberate indifference, on

which the plaintiff’s § 1983 claim is based. ‘‘The [e]ighth

[a]mendment’s prohibition against cruel and unusual

punishment requires prison conditions to be humane,

though not necessarily comfortable.’’ (Internal quota-

tion marks omitted.) Jabbar v. Fischer, 683 F.3d 54, 57

(2d Cir. 2012). ‘‘A denial of safe and humane conditions

can result from an officer’s deliberate indifference to

a prisoner’s safety.’’ Brown v. Fortner, 518 F.3d 552,

558 (8th Cir. 2008). ‘‘[D]eliberate 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 . . . 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.’’ (Internal quotation

marks omitted.) Braham v. Newbould, supra, 160 Conn.

App. 302–303. ‘‘Deliberate indifference requires more

than mere negligence, but does not require acting for

the very purpose of causing harm or with knowledge

that harm will result. . . . [A]cting or failing to act with

deliberate indifference to a substantial risk of serious

harm to a prisoner is the equivalent of recklessly disre-

garding that risk.’’ (Citation omitted; internal quotation

marks omitted.) Brown v. Fortner, supra, 558.

In the operative complaint, the plaintiff claims that

the defendant violated his constitutional rights under

the eighth amendment when the defendant subjected

him to cruel and unusual punishment by transporting

him in reckless disregard of reasonable safety stan-

dards, including by (1) failing to fasten the plaintiff’s

seat belt, despite the defendant’s knowledge that

department policy required inmates to be seat belted,

(2) refusing to acquire a larger vehicle in which the

plaintiff could sit properly, and (3) driving erratically

and well in excess of the speed limit.12 Given that the

plaintiff brings this claim pursuant to § 1983, and not

state common law,13 we must determine whether it is

clearly established under federal law that such conduct

violates the constitution. See Morgan v. Bubar, supra,

115 Conn. App. 625. Accordingly, we begin with an

overview of federal case law concerning the transporta-

tion of inmates.

Very few cases from either the United States Supreme

Court or the Second Circuit have resolved constitu-

tional questions involving inmates and vehicles. Indeed,

the sole relevant case is Jabbar v. Fischer, supra, 683

F.3d 58–59. In Jabbar, the plaintiff, an incarcerated

inmate, was transported to and from a medical appoint-

ment on a ‘‘ ‘hub bus’ that did not have seatbelts for

inmate[s]’’ while ‘‘shackled from his wrists to his

ankles.’’ Id., 56. While in transit, ‘‘[t]he bus made a

forceful turn and [the plaintiff] . . . was thrown from

his seat. He hit his head on another seat and was

knocked unconscious. He sustained injuries to his face,

head, and back.’’ Id. Thereafter, the plaintiff sued the

defendants, ‘‘contending that their failure to provide a

bus seatbelt violated his [e]ighth . . . [a]mendment

rights.’’ Id. The defendants filed a motion to dismiss in

the United States District Court for the Southern Dis-

trict of New York, arguing that the failure to provide

inmates with seat belts does not violate the constitution,

which the District Court granted. Id. The plaintiff then

appealed to the Second Circuit. Id.

On appeal, the Second Circuit concluded that ‘‘the

failure of prison officials to provide inmates with seat-

belts does not, without more, violate the [eighth amend-

ment]’’ because ‘‘the failure to provide a seatbelt is

not . . . sufficiently serious to constitute an [e]ighth

[a]mendment violation . . . [and] because the absence

of seatbelts on inmate bus transport is itself not an

excessive risk, without more, deliberate indifference—

that is, that defendants knew of, and disregarded, an

excessive risk to inmate safety—cannot be plausibly

alleged.’’ (Citations omitted; internal quotation marks

omitted.) Id., 58. This holding arguably left open the

possibility that conduct in addition to failing to provide

inmates with seat belts could give rise to a constitu-

tional violation, but the Second Circuit did not, and still

had not at the time of the challenged conduct in the

present case, elaborated on what specific additional

conduct would constitute a violation of the eighth

amendment.

Other federal courts overwhelmingly have held that

the failure to provide an inmate with a seat belt does

not, on its own, give rise to a constitutional claim for

deliberate indifference. See, e.g., Dexter v. Ford Motor

Co., 92 Fed. Appx. 637, 643 (10th Cir. 2004) (‘‘failure to

seatbelt an inmate does not violate the [c]onstitution’’);

Spencer v. Knapheide Truck Equipment Co., 183 F.3d

902, 906 (8th Cir. 1999) (same), cert. denied sub nom.

Spencer v. Board of Police Commissioners, 528 U.S.

1157, 120 S. Ct. 1165, 145 L. Ed. 2d 1076 (2000); Daily v.

CCA-WCFA Whiteville Transportation Officers, United

States District Court, Docket No. 3:18-CV-0146 (WLC)

(M.D. Tenn. April 2, 2018) (listing federal cases that

have held that transporting inmates without seat belts

does not amount to deliberate indifference); see also

Dexter v. Ford Motor Co., supra, 641 (‘‘The risk of a

motor vehicle accident is dependent upon a host of

factors unrelated to the use of seatbelts, viz., vehicular

condition, time of day, traffic, signage, warning lights,

emergency circumstances, weather, road conditions,

and the conduct of other drivers. The eventuality of

an accident is not hastened or avoided by whether an

inmate is seatbelted.’’).

Although at the time of the challenged conduct, the

Second Circuit had considered only whether the failure

to provide inmates with seat belts gave rise to a constitu-

tional violation, other federal courts had considered

whether factual scenarios involving inmates and a lack

of seat belts in addition to other factors, including dan-

gerous road conditions, distracted driving, and speed-

ing, gave rise to a claim for deliberate indifference.

Those courts largely have held that such facts do not

amount to a violation of the eighth amendment.

For example, in Carrasquillo v. New York, 324 F.

Supp. 2d 428, 434 (S.D.N.Y. 2004), the plaintiff, an incar-

cerated inmate, brought a § 1983 claim for deliberate

indifference after he was injured while being trans-

ported to a courthouse. The plaintiff alleged that the

defendant’s conduct gave rise to a constitutional viola-

tion because the plaintiff ‘‘was handcuffed and was

not provided with a seatbelt’’ and, during transit, the

defendant ‘‘was traveling at an excessive [rate of] speed

. . . despite icy conditions.’’ (Internal quotation marks

omitted.) Id. The United States District Court for the

Southern District of New York concluded that the

alleged conduct did not amount to deliberate indiffer-

ence and dismissed the plaintiff’s claim, holding that

(1) the constitution does not guarantee an inmate’s

‘‘right to non-negligent driving by government employ-

ees,’’ (2) ‘‘[a]llegations of a public official driving too

fast for the road conditions are grounded in negligence,’’

and (3) ‘‘[the] failure to provide seatbelts to prisoners

is not a constitutional violation . . . .’’ (Internal quota-

tion marks omitted.) Id., 436–37.

Most other federal courts that have considered the

lack of an inmate’s seat belt along with certain addi-

tional conduct have reached the same conclusion: such

conduct does not violate the constitution. See, e.g.,

Daily v. CCA-WCFA Whiteville Transportation Offi-

cers, supra, United States District Court, Docket No.

3:18-CV-0146 (WLC) (inmate’s allegations that defen-

dant failed to fasten inmate’s seat belt, drove ninety

miles per hour, followed other cars too closely, and was

distracted by his cell phone did not constitute deliberate

indifference); Uhl v. Wendy, United States District

Court, Docket No. 15 CV 6923 (VB) (S.D.N.Y. December

9, 2016) (inmate’s allegations that defendant ‘‘failed to

secure a safety belt around [him] and drove in excess

of [seventy-five] to [eighty] miles per hour’’ were ‘‘insuf-

ficient to state a claim under [§] 1983’’); Byerlein v.

Hamilton, United States District Court, Docket No.

1:09-CV-841 (PLM) (W.D. Mich. October 7, 2009) (allega-

tions that defendant failed to fasten plaintiff’s seat belt,

talked on cell phone, and disregarded warning sign

about icy conditions did not violate eighth amendment).

In the few instances in which a federal court has

found that a constitutional violation occurred during

the transportation of an inmate, the plaintiff typically

has alleged that (1) he was not seat belted, (2) the

defendant purposefully drove in a reckless, fast, and

distracted manner, and (3) he asked the defendant

either to fasten his seat belt or to drive more safely, but

the defendant ignored such requests. To demonstrate,

in Brown v. Fortner, supra, 518 F.3d 556, on which

Judge Elgo relied in denying the defendant’s motion to

dismiss, the plaintiff, an incarcerated inmate, brought

a § 1983 deliberate indifference claim against the driver

of a prison van after he was injured while being trans-

ported to another correctional facility. Id. The plaintiff

alleged that he was fully shackled, which left him unable

to secure his own seat belt without assistance. Id.

Because of this, the plaintiff asked the defendant to

fasten his seat belt but he refused ‘‘and instead replied

with taunts.’’ Id. ‘‘Other inmates [being transported with

the plaintiff] also requested seatbelts and were

rebuffed.’’ Id. The plaintiff further alleged that the defen-

dant ‘‘[drove] in excess of the speed limit, follow[ed]

too closely to the lead van, cross[ed] over double-yellow

lines, and pass[ed] non-convoy cars when the road

markings clearly prohibited doing so. Further, [the

plaintiff] presented evidence showing that the inmates

riding in [the defendant’s] van asked him to slow down,

and [that the defendant] ignored their requests.’’ Id., 559.

The defendant moved for summary judgment, which

the United States District Court for the Western District

of Missouri denied. Id., 557.

On appeal, the Eighth Circuit affirmed the District

Court’s denial of the defendant’s motion for summary

judgment, holding that, on the basis of the uncontested

evidence, ‘‘a reasonable jury could conclude that there

was a substantial risk of harm to [the plaintiff] and that

[the defendant] knew of and disregarded the substantial

risk [of] harm. As such, [the plaintiff] has presented

sufficient evidence that [the defendant’s] actions may

have violated the [e]ighth [a]mendment prohibition

against cruel and unusual punishment.’’ Id., 560.

Other federal courts, when confronted with situa-

tions where an inmate either requested to be seat belted

or asked that a defendant stop driving recklessly, have

reached the same conclusion. See, e.g., Rogers v. Boat-

right, 709 F.3d 403, 408 (5th Cir. 2013) (claim of deliber-

ate indifference could survive sua sponte dismissal and

was not frivolous when officer did not provide inmate

with seat belt despite being aware of repeated past

incidents where unseatbelted inmates were injured);14

Brown v. Morgan, United States Court of Appeals,

Docket No. 94-2023, 1994 WL 610993, *1 (8th Cir. 1994)

(unpublished decision) (claim of deliberate indifference

sufficiently stated when officer refused to let inmate

wear seat belt, drove at high rate of speed in bad

weather, and laughed at and ignored inmate’s request

to slow down); Steele v. Ayotte, United States District

Court, Docket No. 3:17-CV-1370 (CSH) (D. Conn. Febru-

ary 6, 2018) (relying on Judge Elgo’s memorandum of

decision denying department’s motion to dismiss to

determine that claim of deliberate indifference was suf-

ficiently stated when officers used cell phones while

driving and denied inmate’s request to have seat belt

fastened, stating, ‘‘Why would you need a seatbelt; you

don’t believe in my driving’’ (internal quotation marks

omitted)); Williams v. Wisconsin Lock & Load Prisoner

Transports, LLC, United States District Court, Docket

No. 15 C 8090 (RWG) (N.D. Ill. August 3, 2016) (claim

of deliberate indifference sufficiently stated where

‘‘[officer] refused [inmate’s request] to properly secure

his seat belt, drove too fast for the weather conditions,

improperly used his cell phone while driving, and

slammed on the van’s breaks to avoid a collision caused

by his inattention’’ (footnote omitted)); Barela v.

Romero, United States District Court, Docket No. CIVIL

06-41 (JBDJS) (D.N.M. May 10, 2007) (eighth amend-

ment violation sufficiently stated when officer trans-

ported fully shackled inmate without seat belt, drove

erratically at high speeds, and ignored and laughed at

inmate’s requests to stop).

Given our review of the relevant federal case law and

the particular facts of the present case—specifically,

that (1) the plaintiff was not seat belted, (2) the defen-

dant refused to acquire a larger vehicle, and (3) the

defendant drove erratically and exceeded the speed

limit—we conclude that the allegations in the plaintiff’s

complaint and the record before the court in connection

with the defendant’s motion for summary judgment do

not give rise to a claim for deliberate indifference because

no federal precedent clearly establishes that the defen-

dant’s conduct violates the constitution.15

First, neither the United States Supreme Court nor

the Second Circuit has ever concluded that transporting

an inmate without a seat belt, in a car that is too small,

and while driving erratically and in excess of the speed

limit violates the eighth amendment. Indeed, to the con-

trary, the Second Circuit explicitly has held that trans-

porting an inmate without a seat belt is not deliberate

indifference. See Jabbar v. Fischer, supra, 683 F.3d

58–59. Although Jabbar implied that conduct in addition

to the failure to provide an inmate with a seat belt

could give rise to a constitutional violation, such general

language cannot be read as creating a clearly estab-

lished right for inmates to be seat belted and trans-

ported in accordance with safety protocols. See Ander-

son v. Creighton, supra, 483 U.S. 640 (1987) (‘‘[t]he

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is

doing violates that right’’). Moreover, and contrary to

the court’s conclusion when denying the defendant’s

motion to dismiss, the fact that Jabbar v. Fischer, supra,

58, cites to Brown v. Fortner, supra, 518 F.3d 559–62,

wherein the Eighth Circuit held that the defendant’s

conduct while transporting the plaintiff gave rise to a

constitutional violation, does not clearly establish the

constitutional violation alleged in the present case. See

Jermosen v. Smith, 945 F.2d 547, 551 (2d Cir. 1991)

(declining to rely on dicta when determining whether

right was clearly established), cert. denied, 503 U.S.

962, 112 S. Ct. 1565, 1181 L. Ed. 2d 211 (1992). As noted

previously in this opinion, the facts in Fortner were

much more egregious than those alleged by the plaintiff

in the present case. In particular, in the present case,

the plaintiff neither alleged nor presented evidence that

he requested to be seat belted or requested that the

defendant slow down or drive more cautiously. There

is also no evidence that the plaintiff’s request that the

defendant procure a larger vehicle was made because

of a concern for safety instead of comfort. Conse-

quently, the Second Circuit’s reference to Fortner does

not support a conclusion that it would hold that the

defendant’s conduct in the present case is a clear viola-

tion of the plaintiff’s eighth amendment rights. Overall,

the Second Circuit’s precedent regarding the trans-

porting of inmates in vehicles does not clearly establish

that the defendant’s conduct in the present case violated

the plaintiff’s constitutional rights.

Second, no other federal courts that have considered

factual situations similar to those at issue here have

concluded that such facts give rise to a constitutional

violation. See Weber v. Dell, 804 F.2d 796, 801 n.6, 803–

804 (2d Cir. 1986) (relying on decisions from other cir-

cuits finding similar conduct unconstitutional, even

though Second Circuit had not reached issue), cert.

denied sub nom. Monroe v. Weber, 483 U.S. 1020, 107

S. Ct. 3263, 97 L. Ed. 2d 762 (1987). In the present

case, the plaintiff alleged that the defendant drove in

disregard of the plaintiff’s safety by driving thirty miles

per hour in excess of the speed limit, making sharp

turns, and weaving in and out of traffic, all while the

plaintiff was seated in a vehicle that was too small for

his stature and was unsecured by a seat belt. Federal

courts that have had the opportunity to consider similar

facts, however, overwhelmingly have concluded that

such conduct does not constitute deliberate indiffer-

ence. See Carrasquillo v. New York, supra, 324 F. Supp.

2d 433–34 (no deliberate indifference when defendant

drove above speed limit in icy conditions with inmate

handcuffed and not seat belted); see also, e.g., Daily v.

CCA-WCFA Whiteville Transportation Officers, supra,

United States District Court, Docket No. 3:18-CV-0146

(WLC) (no deliberate indifference when defendant

drove ninety miles per hour while ‘‘blasting’’ music and

‘‘fumbling with his phone’’ with inmate handcuffed and

not seat belted); Byerlein v. Hamilton, supra, United

States District Court, Docket No. 1:09-CV-841 (PLM) (no

deliberate indifference when defendant drove above

speed limit on icy road with inmate handcuffed and not

seat belted).

In fact, in many of these cases, the defendant’s con-

duct was arguably worse than the conduct at issue

here, given that the defendants in those cases drove

erratically in bad weather or were distracted while driv-

ing. See Daily v. CCA-WCFA Whiteville Transportation

Officers, supra, United States District Court, Docket

No. 3:18-CV-0146 (WLC); Byerlein v. Hamilton, supra,

United States District Court, Docket No. 1:09-CV-841

(PLM); Carrasquillo v. New York, supra, 324 F. Supp.

2d 433–34. Despite that worse conduct, though, each

court still concluded that such conduct did not consti-

tute deliberate indifference. See Daily v. CCA-WCFA

Whiteville Transportation Officers, supra, United

States District Court, Docket No. 3:18-CV-0146 (WLC);

Byerlein v. Hamilton, supra, United States District

Court, Docket No. 1:09-CV-841 (PLM); Carrasquillo v.

New York, supra, 433–34. Thus, this persuasive author-

ity also does not clearly establish that the defendant’s

conduct in the present case violated the plaintiff’s con-

stitutional rights.

On the other hand, as noted previously in this opinion,

the cases on which the plaintiff relies that have reached

the contrary conclusion are readily distinguishable from

the present case. In those instances in which a federal

court has held that a defendant’s conduct while trans-

porting an inmate constituted deliberate indifference,

the inmate either asked to be seat belted or asked the

officer to slow down or stop, thereby putting the defen-

dant on notice of the danger to which the plaintiff felt

exposed, or involved officers who personally knew of

recent injuries to inmates that had resulted from the

inmates not being seat belted. See, e.g., Rogers v. Boat-

right, supra, 709 F.3d 408 (claim of deliberate indiffer-

ence could survive dismissal, even when inmate did not

request to be seat belted, when officer knew of recent

prior injuries to inmates who were not seat belted);

Brown v. Fortner, supra, 518 F.3d 556 (defendant

ignored inmates’ requests to have seat belts fastened

and to drive more safely); Brown v. Morgan, supra,

1994 WL 610993, *1 (defendant ignored inmate’s request

to be seat belted, ignored inmate’s pleas to slow down,

and laughed when he saw inmate was scared); Steele

v. Ayotte, supra, United States District Court, Docket

No. 3:17-CV-1370 (CSH) (defendants ignored inmate’s

request to be seat belted); Williams v. Wisconsin

Lock & Load Prisoner Transports, LLC, supra, United

States District Court, Docket No. 15 C 8090 (RWG)

(defendant refused to fasten inmate’s seat belt after

inmate asked why he was not belted); Barela v. Romero,

supra, United States District Court, Docket No. CIVIL

06-41 (JBDJS) (defendant, who was speeding and stop-

ping suddenly, ignored inmate’s request to stop and

laughed at inmate). In the present case, the plaintiff

never asked the defendant to fasten his seat belt or

commented on his driving. See Walker v. Schult, supra,

717 F.3d 125 (official must be actually aware of risk).

Further, as the plaintiff admitted at oral argument

before this court, he never alleged a safety concern as

to the defendant’s conduct. See id. There is also no

evidence that the plaintiff ever told the defendant that

his concern that the assigned vehicle was too small for

him was related to any safety concern. Accordingly,

because the plaintiff never made the defendant aware

of any concerns that he had as to his safety, the present

case is distinguishable from the federal cases that have

found a constitutional violation based on a defendant’s

conduct while transporting an inmate. Thus, those cases

also do not clearly establish that the defendant’s con-

duct in the present case violated a constitutional right.

Consequently, because no federal case has held that

facts similar to those alleged in the present case amount

to deliberate indifference, we cannot say that the defen-

dant violated a clearly established right when he trans-

ported the plaintiff without a seat belt in a vehicle that

was too small and drove over the speed limit while

making sharp turns and dipping in and out of traffic. See

id., 125–26 (in determining whether conduct violates

clearly established law, ‘‘existing precedent must have

placed the . . . constitutional question beyond

debate’’ (internal quotation marks omitted)).

Our conclusion that federal law does not clearly

establish the right at issue in the present case, however,

does not end our qualified immunity analysis. As the

plaintiff notes in his brief, ‘‘officials can still be on notice

that their conduct violates established law even in novel

factual circumstances.’’ Hope v. Pelzer, 536 U.S. 730,

741, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002). In rare

cases, a court can conclude that a defendant’s conduct

rises to the level of a constitutional violation despite

the fact that existing precedent has not yet held that

the conduct in question is unlawful. See id.; see also

United States v. Lanier, 520 U.S. 259, 271, 117 S. Ct.

1219, 137 L. Ed. 2d 432 (1997).

For example, in Hope v. Pelzer, supra, 536 U.S. 734–

35, the United States Supreme Court concluded that

the defendants’ conduct, namely, handcuffing an inmate

to a hitching post in the hot sun for multiple hours

while denying him water and bathroom breaks and

taunting him, was a clear and obvious violation of the

eighth amendment, despite the lack of precedent involv-

ing similar facts. Similarly, in Taylor v. Riojas, U.S.

, 141 S. Ct. 52, 53, 208 L. Ed. 2d 164 (2020), an inmate

spent six days in two different cells, the first of which

was covered ‘‘in massive amounts of feces’’ and the

second of which was frigidly cold and overflowing with

raw sewage. (Internal quotation marks omitted.) The

Supreme Court held that the inmate had an obvious

constitutional right to be free from ‘‘deplorably unsani-

tary conditions,’’ despite the lack of precedent concern-

ing similar facts, because ‘‘no reasonable correctional

officer could have concluded that . . . it was constitu-

tionally permissible to house [the inmate] in such

deplorably unsanitary conditions for such an extended

period of time.’’ Id., 53–54.

The plaintiff thus argues that, despite the lack of any

precedent finding a constitutional violation in situations

similar to those alleged here, we still can conclude that

the defendant’s conduct in the present case constitutes

deliberate indifference. We are not persuaded. The facts

alleged here—specifically, that the plaintiff was injured

in a car accident after the defendant neglected to seat

belt the plaintiff, transported him in a vehicle that was

too small, and drove in excess of the speed limit while

making sharp turns and weaving in and out of traffic—

are far less egregious than those alleged in Hope and

Taylor, where inmates were treated in ways that were

‘‘antithetical to human dignity.’’ Hope v. Pelzer, supra,

536 U.S. 745. Thus, we cannot say that the defendant’s

conduct in the present case gave rise to a constitutional

violation that should have been readily obvious to the

defendant despite the lack of precedent declaring such

conduct unlawful.

This is particularly true given that both the United

States Supreme Court and the Second Circuit have held

that conduct far worse than that alleged here was not

so obvious as to constitute an eighth amendment viola-

tion in the absence of existing precedent. See, e.g.,

Taylor v. Barkes, 575 U.S. 822, 822–23, 826–27, 135 S.

Ct. 2042, 192 L. Ed. 2d 78 (2015) (defendants who failed

to implement suicide prevention protocols, which alleg-

edly led to arrestee’s suicide, were entitled to qualified

immunity because ‘‘[n]o decision of this [c]ourt estab-

lishes a right to the proper implementation of adequate

suicide prevention protocols’’); Crawford v. Cuomo,

721 Fed. Appx. 57, 60 (2d Cir. 2018) (defendant who

sexually abused inmates was entitled to qualified immu-

nity, despite ‘‘repugnant and intolerable’’ conduct,

because ‘‘unconstitutional nature of [the defendant’s]

abuse was not clearly established’’ at time abuse

occurred). Therefore, given that the present case

involved a car accident with circumstances under which

no federal court has found an eighth amendment viola-

tion, we decline to conclude, in light of the lack of

existing relevant precedent, that the defendant’s con-

duct was so bad as to constitute an obvious violation

of the plaintiff’s eighth amendment rights.

We are also not persuaded by the plaintiff’s con-

tention that, despite the lack of any relevant federal

precedent, the defendant had fair notice that his con-

duct violated the constitution because the plaintiff was

unsecured by a seat belt despite the defendant’s knowl-

edge of a department policy which states that ‘‘[t]rans-

portation staff and each inmate in all vehicles . . .

shall use seat belts while en route.’’ Conn. Dept. of

Correction, Administrative Directive 6.4 (19) (A) (effec-

tive November 13, 2012). As noted previously in this

opinion, the failure to seat belt an inmate does not

constitute deliberate indifference. This is true even

when the law requires the use of seat belts. See also

Carrasquillo v. New York, supra, 324 F. Supp. 2d 438

(fact that New York law requires seat belts on buses

was irrelevant to inmate’s deliberate indifference claim).

Accordingly, because the defendant’s conduct did not

violate a clearly established constitutional right and

because his conduct also was not severe enough to

constitute an obvious constitutional violation in the

absence of such clearly established law, the plaintiff’s

factual allegations in the present case do not give rise to

a constitutional violation. The plaintiff’s claim, instead,

sounds in negligence. See, e.g., Hill v. Shobe, 93 F.3d

418, 421 (7th Cir. 1996) (‘‘[a]llegations of a public official

driving too fast for the road conditions are grounded in

negligence’’); White v. New York, United States District

Court, Docket No. 10 CIV. 8689 (RJH) (S.D.N.Y. Novem-

ber 22, 2011) (‘‘a negligence claim arising from one

individual’s careless conduct toward another is purely

a matter of state tort law’’); Carrasquillo v. New York,

supra, 324 F. Supp. 2d 436 (constitution does not guar-

antee inmate’s right ‘‘to non-negligent driving by govern-

ment employees’’). We decline to elevate what is essen-

tially a common-law tort claim to a constitutional violation

under § 1983. See Parratt v. Taylor, 451 U.S. 527, 544,

101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981) (declining to

adopt reasoning that could allow ‘‘any party who is

involved in nothing more than an automobile accident

with a state official [to] allege a constitutional violation

under § 1983’’), overruled on other grounds by Daniels

v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d

662 (1986).

In sum, because no federal case has held that the facts

alleged in the present case give rise to a constitutional

violation, it is not clearly established that the defen-

dant’s conduct violated the plaintiff’s eighth amend-

ment right against cruel and unusual punishment. More-

over, the defendant’s conduct also is not so egregious

as to constitute an obvious constitutional violation in

the absence of existing precedent involving similar facts.

Accordingly, the defendant is entitled to qualified immu-

nity and the court erred in holding otherwise.16

The judgment is reversed and the case is remanded

with direction to grant the defendant’s motion for sum-

mary judgment and to render judgment thereon for the

defendant.

In this opinion the other judges concurred.

1

Although the plaintiff originally brought this action against both the

defendant and Captain Jon Doe, Doe never was identified, never properly

served, and has not appeared in this action. Accordingly, Doe is not partici-

pating in this appeal, and the appeal is brought only on behalf of the defen-

dant.

2

As a general rule, ‘‘[t]he denial of a motion for summary judgment . . .

is an interlocutory ruling, and, accordingly, not a final judgment for purposes

of appeal.’’ (Internal quotation marks omitted.) Brown & Brown, Inc. v.

Blumenthal, 288 Conn. 646, 653, 954 A.2d 816 (2008). The denial of a defen-

dant’s motion for summary judgment on the basis of qualified immunity,

however, is an exception to this rule and is an appealable final judgment.

See Morgan v. Bubar, 115 Conn. App. 603, 608–609, 975 A.2d 59 (2009).

Accordingly, the defendant’s claim that he is entitled to qualified immunity

is properly before this court. See id.

3

While this appeal was pending, the plaintiff was extradited to New York

and is now incarcerated in a correctional facility there.

4

According to a department administrative directive, which was attached

to the defendant’s motion for summary judgment, a black box is ‘‘[a] lockable

plastic cover designed to limit tampering with a handcuff locking mecha-

nism.’’ Conn. Dept. of Correction, Administrative Directive 6.4 (3) (A) (effec-

tive November 13, 2012).

5

The driver of the other car was uninjured in the crash.

6

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.’’ (Emphasis added.) U.S. Const.,

amend. VIII.

7

Title 42 of the United States Code, § 1983, provides in relevant part:

‘‘Every person who, under color of any statute, ordinance, regulation, cus-

tom, 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, except that in any action brought against a judicial officer for

an act or omission taken in such officer’s judicial capacity, injunctive relief

shall not be granted unless a declaratory decree was violated or declaratory

relief was unavailable. . . .’’

8

On April 12, 2016, the plaintiff filed a motion to amend and an amended

complaint. The motion to amend, however, was never ruled on by the court.

Accordingly, the June 23, 2014 revised complaint is the operative complaint

in this action.

9

In the operative complaint, the plaintiff also pleaded a state common-

law recklessness claim (count four), alleging that the defendant had acted

wantonly and recklessly when transporting him. The plaintiff later aban-

doned that claim in his objection to the defendant’s motion for summary

judgment, stating, ‘‘[the plaintiff] is not suing the [defendant] . . . pursuant

to [Connecticut] common law . . . . [The plaintiff] is suing [the defendant]

pursuant to 42 U.S.C. § 1983 . . . .’’ (Emphasis added.) Accordingly, that

claim was not argued before the trial court and is not before us on appeal.

The operative complaint further pleaded two counts (counts one and

three) against Doe. As explained in footnote 1 of this opinion, however,

Doe has never participated in this action. Accordingly, these counts also

were not argued before the trial court and, thus, are not before us on appeal.

10

The defendant also argued in his motion for summary judgment that

the plaintiff had failed to exhaust his administrative remedies before bringing

the underlying action. In ruling on the defendant’s motion for summary

judgment, the court concluded that the plaintiff had exhausted his adminis-

trative remedies, and the defendant does not challenge that ruling in this

appeal.

11

At the hearing on the defendant’s motion for summary judgment, the

plaintiff did not argue that the defendant was not entitled to qualified immu-

nity because he had been sued in his personal capacity. The plaintiff also

does not make that argument on appeal. Therefore, we need not consider

that claim. We do note, however, that the Second Circuit has held that

‘‘qualified immunity shields a defendant official sued in his individual

capacity from liability for civil damages . . . .’’ (Emphasis added; internal

quotation marks omitted.) Frank v. Relin, 1 F.3d 1317, 1327–28 (2d Cir.),

cert. denied, 510 U.S. 1012, 114 S. Ct. 604, 126 L. Ed. 2d 569 (1993).

12

To the extent that, in his brief, the plaintiff frames the alleged constitu-

tional right at issue as a right to be free from an unreasonable and substantial

risk of harm, we conclude that such a description is too broad. See Escondido

v. Emmons, U.S. , 139 S. Ct. 500, 503, 202 L. Ed. 2d 455 (2019) (‘‘clearly

established right must be defined with specificity’’). Accordingly, we have

narrowed the plaintiff’s description of the constitutional right at issue.

13

See footnote 7 of this opinion.

14

We note that the United States Court of Appeals for the Fifth Circuit

solely decided in this case that the inmate’s deliberate indifference claim

was not frivolous. Rogers v. Boatright, supra, 709 F.3d 409. The court did

not specifically decide whether the inmate’s allegations sufficiently stated

a claim of deliberate indifference or whether the inmate’s claim could survive

a motion for summary judgment. Id. (‘‘[w]e . . . express no opinion on the

ultimate merits of [the inmate’s] claim’’).

15

We recognize that for a right to be clearly established, that right must

have been clearly established at the time of the challenged conduct. See

Braham v. Newbould, supra, 160 Conn. App. 302. In the interest of a full

analysis, however, we have reviewed cases that were decided both before

and after the challenged conduct in the present appeal. Even when consider-

ing cases that were decided after the conduct at issue here, we still conclude

that the defendant’s conduct did not give rise to a clear constitutional viola-

tion.

16

This conclusion renders it unnecessary for us to consider the defendant’s

alternative ground for reversal, namely, that the court erred in (1) determin-

ing there were material facts in dispute, (2) misstating ‘‘the standard for [a]

qualified immunity analysis,’’ and (3) defining the plaintiff’s alleged constitu-

tional right too broadly.