JAMES A. HARNAGE v. RACQUEL LIGHTNER ET AL.
AC 37539
Gruendel, Prescott and Pellegrino, Js.
Argued October 28, 2015—officially released March 1, 2016
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(Appeal from Superior Court, judicial district of Hartford, Peck, J. [motion to dismiss]; Hon. Constance L. Epstein, judge trial referee [motions to dismiss, for judgment].)
James A. Harnage, self-represented, the appellant (plaintiff).
Michael A. Martone, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Terrence M. O’Neill, assistant attorney general, for the appellees (defendants).
PRESCOTT, J. The plaintiff, James A. Harnage, appeals from the judgment of the trial court, dismissing his civil action in favor of the defendants1 on the grounds that he failed to properly serve the defendants in their individual capacities and failed to post a recognizance bond as required by General Statutes (Rev. to 2013) § 52-185.2 On appeal, the plaintiff claims that the court improperly granted the defendants’ motion to dismiss because: (1) General Statutes §§ 52-64 (a) and 52- 57 (a) permit process to be served upon state employees in their individual capacities by serving the attorney general at the Office of the Attorney General in Hartford; and (2) the recognizance bond requirement, as set forth in General Statutes (Rev. to 2013) §§ 52-185 and 52-186,3 does not apply to him, or, if it does, such a requirement is unconstitutional because it violates his rights to due process and equal protection of the law under the United States constitution. We are not persuaded by either claim. Nevertheless, because we put an interpretive gloss on §§ 52-185 and 52-186 in order to avoid placing these statutes in constitutional jeopardy, we are compelled to reverse the judgment in part and to remand this case to the trial court to consider whether it should waive the plaintiff’s obligation to post a recognizance bond.
The record reveals the following undisputed facts and procedural history. The plaintiff is incarcerated at the MacDougall-Walker Correctional Institution. On February 11, 2014, the trial court found that the plaintiff was indigent and granted him a fee waiver for the entry fee, the filing fee, and the cost of service of process. The plaintiff then initiated this action against the defendants, in their official and individual capacities,4 alleging that the defendants had violated his constitutional rights because they were deliberately indifferent to his medical needs. The plaintiff claimed, inter alia, that the defendants reused needles when administering insulin medication to inmates with diabetes, as well as refused to provide him with medical treatment for a serious hemorrhoid and an abdominal hernia.
On March 5, 2014, the plaintiff attempted to serve the defendants by leaving a copy of the writ of summons, and complaint with the attorney general or his designee at the Office of the Attorney General. On or about April 15, 2014, the defendants mailed a letter to the plaintiff, requesting that he post a recognizance bond in the amount of $250 within ten days. That same day, the defendants also filed a motion to dismiss the complaint against the defendants in their individual capacities for lack of personal jurisdiction due to insufficient service of process, and against the defendants in their official capacities because the plaintiff had failed to post a recognizance bond.
On June 30, 2014, the court granted the defendants’ motion to dismiss in part. Specifically, the court granted the motion to dismiss the claims against the defendants in their individual capacities because the plaintiff failed to properly serve the defendants in their individual capacities pursuant to § 52-57 (a). The court also ordered the plaintiff to a post a recognizance bond in the amount of $250 within two weeks or it would dismiss the case in its entirety upon reclaim of the motion. Because the plaintiff could not afford to post the $250 recognizance bond and desired to appeal from the court’s decision, on November 10, 2014, he filed a motion for judgment, which the court subsequently granted. This appeal followed.
I
The plaintiff first claims that the court improperly granted the defendants’ motion to dismiss for lack of personal jurisdiction the claims brought against them in their individual capacities on the ground that he failed to properly serve the defendants pursuant to § 52-57 (a). The plaintiff argues that in a civil action against state employees in their individual capacities, § 52-64 (a) permits service of process to be made by a proper officer leaving a copy of process with the attorney general at the Office of the Attorney General in Hartford. The plaintiff further argues that § 52-57 (a) does not require him to serve the defendants in hand or at their place of abode because the phrase, ‘‘[e]xcept as otherwise provided,’’ contained in § 52-57 (a), is a reference to § 52-64. The defendants respond that it is clearly established that § 52-64 (a) applies only if a state employee has been sued in his official capacity and that § 52-57 (a) applies when a state employee is sued in his individual capacity. We agree with the defendants.
We begin with the standard of review and the relevant legal principles governing the plaintiff’s claim. ‘‘A motion to dismiss . . . properly attacks the jurisdiction of the court . . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the trial court’s ultimate legal conclusion and resulting [decision to grant] . . . the motion to dismiss will be de novo.
‘‘The principles that govern statutory construction
are well established. When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner,
the meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply. . . . In seeking to
determine that meaning,
We begin, as we must, with the language of the statutes at issue.
Additionally,
In construing §§ 52-57 (a) and 52-64 (a), we do not
write on a clean slate. Decisions of this court have
repeatedly held that a plaintiff, who serves a state defendant pursuant to
The United States Court of Appeals for the Second
Circuit has similarly declined to interpret
The plaintiff argues that if
In sum, in order for the plaintiff to properly serve
process on the defendants in their individual capacities,
the plaintiff was required to ‘‘[leave] a true and attested
copy of [process], including the declaration or complaint, with the defendant, or at his usual place of abode
. . . .’’
II
The plaintiff next claims that the court improperly
granted the defendants’ motion to dismiss the claims
brought against them in their official capacities on the
ground that the plaintiff failed to post a recognizance
bond pursuant to
A
The plaintiff first argues that the recognizance bond requirement, as set forth in §§ 52-185 and 52-186, does not apply to him because a recognizance bond is required only if costs can be taxed against him if the state prevails. The plaintiff argues that costs cannot be taxed against him because a 1931 decision of our Supreme Court stated that if costs are not taxable against one party, then that party may not seek costs in its favor. See Bissing v. Turkington, 113 Conn. 737, 740, 157 A. 226 (1931) (‘‘[i]f [costs] are not taxable against the respondent they are not taxable in his favor against the applicant’’). Thus, according to the plaintiff’s argument, because the state’s sovereign immunity prevents the imposition of costs against it, costs may not be taxed against him.6 We are not persuaded.
Whether the recognizance bond requirement, as set forth in §§ 52-185 and 52-186, applies to the plaintiff in this case is a question of statutory interpretation, and, therefore, our review is plenary. See Atlantic Mortgage & Investment Corp. v. Stephenson, 86 Conn. App. 126, 131–32, 860 A.2d 751 (2004) (‘‘The question of whether a particular statute . . . applies to a given state of facts is a question of statutory interpretation . . . . Statutory interpretation presents a question of law for the court. . . . Our review is, therefore, plenary.’’ [Internal quotation marks omitted.]); Ribeiro v. Fasano, Ippolito & Lee, P.C., supra, 157 Conn. App. 623–24 (in reviewing trial court ruling on motion to dismiss, if required to construe statute, appellate review is plenary because it is question of law); see also part I of this opinion (discussing standard of review for statutory construction issues and legal principles guiding our analysis).
We begin with the language of the provisions at issue.
It is well settled that these statutes only apply in civil cases in which costs are taxable against the plaintiff. See Bissing v. Turkington, supra, 113 Conn. 739 (‘‘[recognizance bond requirement] must be construed to apply only to process in actions in which costs are taxable, since there would be no reason for securing the payment of costs in an action in which costs could not in any event be recovered’’). ‘‘Costs are a matter of statutory regulation, and are not taxable unless given by statute.’’ Id.
The plaintiff’s assertion that these provisions do not
apply to him is based on the following syllogism. In
Bissing v. Turkington, supra, 113 Conn. 740, our
Supreme Court stated: ‘‘If [costs] are not taxable against
the respondent they are not taxable in [the respondent’s] favor against the applicant.’’ The plaintiff then
argues that costs are not taxable against the state
because the legislature did not waive the state’s sovereign immunity when it enacted
We disagree because the plaintiff takes the language
used by our Supreme Court in Bissing out of context.
Bissing was a habeas corpus proceeding. Although
habeas corpus proceedings are technically civil actions;
see Smith v. Bennett, 365 U.S. 708, 712, 81 S. Ct. 895,
6 L. Ed. 2d 39 (1961) (‘‘habeas corpus may, of course,
be found to be a civil action for procedural purposes’’);
they do not fall within the parameters of
The present case, unlike a habeas proceeding, falls
into a category of cases in which the legislature has
specifically authorized the taxation of costs because it
is a civil action ‘‘in which the matter in demand is not
less than fifteen thousand dollars . . . .’’
B
The plaintiff argues, in the alternative, that the court improperly granted the defendants’ motion to dismiss the official capacity claims on the ground that such a recognizance bond requirement is unconstitutional, as applied to him, an indigent inmate, because it denies him his fundamental right of access to the courts, particularly his right to challenge the conditions of his confinement. Thus, the plaintiff contends that, as applied to him, the statutes requiring a recognizance bond deny him due process and equal protection of the law under the United States constitution.
Although recognizing that the plaintiff has raised a
constitutional challenge, the defendants simply respond
that all statutes are presumed to be constitutional. The
defendants also argue that the plaintiff’s access to the
courts is not unlawfully restricted because of his indigent status, in light of the fact that
‘‘[I]n evaluating the [plaintiff’s] challenge to the constitutionality of [a] statute . . . [w]e will indulge in every presumption in favor of the statute’s constitutionality . . . .’’ (Internal quotation marks omitted.) State v. Indrisano, 228 Conn. 795, 805, 640 A.2d 986 (1994).
With these principles in mind, we turn to the specifics of this case. The plaintiff raises valid constitutional concerns regarding the recognizance bond requirement as applied to him, an indigent inmate. Prisoners have a fundamental right of access to the courts, including the right to challenge the conditions of their confinement. See Wolff v. McDonnell, 418 U.S. 539, 579, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). It is well established that prisoners have a fundamental constitutional right of access to the courts, and that such access must be ‘‘adequate, effective and meaningful. . . . Decisions of the United States Supreme Court have consistently required [s]tates to shoulder affirmative obligations to assure all prisoners meaningful access to the courts. It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them. States must forgo collection of docket fees otherwise payable to the treasury and expend funds for transcripts. State expenditures are necessary to pay lawyers for indigent [criminal] defendants at trial . . . and in appeals as of right . . . .’’ (Citations omitted; internal quotation marks omitted.) Washington v. Meachum, 238 Conn. 692, 735, 680 A.2d 262 (1996). Prisoners possess a right of access not only to pursue appeals from criminal convictions or to bring a habeas action, but also to assert civil rights actions to vindicate their basic constitutional rights, including challenging the conditions of their confinement under the eighth amendment to the federal constitution. Wolff v. McDonnell, supra, 579 (‘‘[i]t is futile to contend that the Civil Rights Act of 1871 has less importance in our constitutional scheme than does the Great Writ’’).
In civil cases in which a fundamental right is implicated and judicial recourse is the sole manner of resolving the dispute, there cannot be a total deprivation of access to the courts, and a statute conditioning access to the courts on paying court fees or costs raises significant constitutional concerns. See Boddie v. Connecti-
In the present case, in considering the recognizance
bond statutes and assessing their constitutionality, we
are mindful of these constitutional principles. Sections
52-185 and 52-186 contain no express exception to the
recognizance bond requirement for indigent inmates.
Furthermore, the recognizance bond requirement is not
one of the enumerated fees or costs that can be waived
pursuant to
These Superior Court decisions, upon which the
defendants rely, have not analyzed whether the recognizance bond requirement as applied to indigent inmates
runs afoul of an inmate’s fundamental right of access
to the courts to challenge the conditions of his or her
confinement. The defendants are correct that
In order to alleviate the constitutional concerns that
the plaintiff has brought to our attention, we place an
interpretive gloss on §§ 52-185 and 52-186. See State v.
Indrisano, supra, 228 Conn. 805 (placing interpretive
gloss on disorderly conduct statute to eliminate constitutional infirmity). In crafting an effective interpretive
gloss that does not conflict with the legislature’s underlying intent, it is instructive to consider decisions of
the federal circuit courts assessing the constitutionality
of the fee provision of the Prison Litigation Reform Act
(PLRA);
In upholding the constitutionality of the fee provision,
the federal circuit courts have relied heavily on the fact
that the PLRA contains a safety valve provision;
In placing an interpretive gloss on §§ 52-185 and 52-
186, we note the need for a safety valve that would allow
an indigent inmate, who cannot afford the recognizance
bond and who has no ability to procure a ‘‘financially
responsible inhabitant of this state’’;
Additionally, such a gloss ameliorates any potential constitutional infirmities because our judicially fashioned safety valve prevents there from being a total deprivation of access to the courts. In Sosna v. Iowa, supra, 419 U.S. 410, the United States Supreme Court upheld a one year residency requirement before permitting state residents to obtain a divorce, reasoning that although litigants have a right of meaningful access to the courts to obtain a divorce, this right may be burdened as long as there is not a ‘‘total deprivation’’ of access. Using similar reasoning, the United States Court of Appeals for the Tenth Circuit upheld the constitutionality of a statute, as applied to an inmate, sanctioning litigants for frivolous or malicious lawsuits because a prisoner’s constitutional right of access to the courts can be limited as long as there is not a ‘‘total deprivation’’ of access to the courts. Green v. Price, Docket Nos. 95-1079, 95-1080, 1996 WL 56075 (10th Cir. February 9, 1996) (decision without published opinion, 76 F.3d 392 [10th Cir. 1996]). Similarly, with the interpretive gloss that we place on §§ 52-185 and 52-186, the recognizance bond requirement does not totally deprive indigent inmates of access to the courts to challenge the conditions of their confinement; rather, they can still bring their lawsuits upon a proper showing of indigency at the hearing on the motion to dismiss or at a requested hearing on the appropriate amount of bond.
Furthermore, such an interpretive gloss does no violence to §§ 52-185 and 52-186. These statutes are silent
as to whether they authorize a trial court to waive
the recognizance bond requirement, and certainly they
include no express language that prevents a trial court
from doing so. Although they do provide that a trial
court may order a ‘‘sufficient’’ bond amount after considering the potential taxable costs pursuant to
Not only does our interpretive gloss do no violence
to §§ 52-185 and 52-186, it is also in accord with the
current revision of
Further, although the plaintiff does have a fundamental right of access to the courts to challenge the conditions of his confinement and to vindicate deprivations of his civil rights, with the gloss that we place on §§ 52- 185 and 52-186 permitting waiver of the recognizance bond, we determine that the possibility for deprivation of that right has been ameliorated. Because the recognizance bond requirement with our interpretive gloss does not impinge on a fundamental right, we conclude that these statutes pass constitutional muster under due process and equal protection review.17
Having added this interpretive gloss to §§ 52-185 and 52-186, which the trial court did not consider, we find it necessary to remand the case to the trial court for a hearing to consider the plaintiff’s request, made before the trial court, for a waiver.
The judgment is reversed only as to the dismissal of the plaintiff’s causes of action against the defendants in their in official capacities and the case is remanded for a hearing consistent with this opinion to consider the plaintiff’s request for a waiver of his obligation to post a recognizance bond. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.