JAMES A. HARNAGE v. RACQUEL LIGHTNER ET AL.
AC 37539
Gruendel, Prescott and Pellegrino, Js.
Argued October 28, 2015—officially released March 1, 2016
****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************
JAMES A. HARNAGE v. RACQUEL LIGHTNER ET AL. (AC 37539) Gruendel, Prescott and Pellegrino, Js. Argued October 28, 2015—officially released March 1, 2016
(
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).
Opinion
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 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.
The plaintiff subsequently filed an objection to the
defendants’ motion to dismiss.
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.
. . . To the extent that our resolution of an appeal requires us to construe a statute, our review is plenary, as statutory construction is a question of law.’’ (Citation omitted; internal quotation marks omitted.) Ribeiro v. Fasano, Ippolito & Lee, P.C., 157 Conn. App. 617, 623– 24, 117 A.3d 965 (2015); see State v. Boyd, 272 Conn. 72, 76, 861 A.2d 1155 (2004) (stating that when interpreting language of statute, standard of review is plenary).
‘‘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
We begin, as we must, with the language of the statutes at issue.
Additionally,
the case may be, may be made by a proper officer (1) leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General at the office of the Attorney General in Hartford, or (2) sending a true and attested copy of the process, including the summons and complaint, by certified mail, return receipt requested, to the Attorney General at the office of the Attorney General in Hartford.’’
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
individual capacity, service of process must be made
pursuant to
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
ment does apply to the plaintiff. We, however, conclude that it is necessary to place an interpretive gloss on §§ 52-185 and 52-186 in order to avoid placing them in constitutional jeopardy. Accordingly, we construe these provisions as authorizing the court to waive the plaintiff’s obligation to post, or to reduce significantly the amount of, a recognizance bond in light of a party’s indigency and status as an inmate.
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).
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
tary relief is not available in habeas proceedings. See
Sanchez v. Warden, 214 Conn. 23, 34, 570 A.2d 673
(1990) (stating that standard relief in habeas corpus
action is discharge of prisoner, while standard relief in
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,
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).
‘‘It . . . is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. . . . Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.’’ (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 405, 119 A.3d 462 (2015). ‘‘[W]e may also add interpretive gloss to a challenged statute in order to render it constitutional. In construing a statute, the court must search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.’’ (Internal quotation marks omitted.) State v. Indrisano, supra, 805–806.
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
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-
cut, 401 U.S. 371, 382–83, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971) (holding that statute requiring indigent plaintiffs to pay filing fee to obtain divorce violated due process because marriage is fundamental interest and plaintiff can only obtain divorce through judicial system); see also M.L.B. v. S.L.J., 519 U.S. 102, 123–24, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996) (holding that statute conditioning civil litigants’ right to appeal a termination of parental rights on prepayment of costs was unconstitutional as violation of due process and equal protection because it implicated fundamental interest and resort to court was sole path for relief); cf. Sosna v. Iowa, 419 U.S. 393, 410, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975) (limiting Boddie to circumstances where there is total deprivation of access to the courts to obtain divorce and holding that access to courts was not denied by delaying access to divorce); United States v. Kras, 409 U.S. 434, 445–46, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973) (upholding statute requiring payment of court fees as condition precedent to discharge in bankruptcy because no fundamental interest is at stake and resort to courts is not sole path to securing debt forgiveness).
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
greater world, may not be able to find a ‘‘financially
responsible inhabitant of this state’’;
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’’;
request a waiver of the bond requirement or request that a nominal amount be imposed.13 Thus, an indigent inmate’s path to the courts is not blocked, and his or her fundamental right of access to the courts is not implicated, alleviating our constitutional concerns.
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
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
ing
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.