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Harnage v. Lightner

Appellate Court of Connecticut

March 1, 2016

JAMES A. HARNAGE
v.
RACQUEL LIGHTNER ET AL

         Argued October 28, 2015.

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[Copyrighted Material Omitted]

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          Action to recover damages for alleged violations 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, Peck, J., granted in part the defendants' motion to dismiss, and the plaintiff appealed to this court, which dismissed the appeal for lack of a final judgment; thereafter, the court, Hon. Constance L. Epstein, judge trial referee, granted the plaintiff's motion for judgment and the defendants' motion to dismiss, and rendered judgment thereon, from which the plaintiff appealed to this court.

          SYLLABUS

         The plaintiff inmate brought this civil action against the defendant state employees in their individual and official capacities, seeking, inter alia, damages for their alleged violation of his state and federal constitutional rights as a result of their deliberate indifference to his medical needs while he was incarcerated in a state correctional institution. 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. The defendants thereafter filed a motion to dismiss. They claimed that the trial court lacked personal jurisdiction over them in their individual capacities due to insufficient service of process. They also claimed that the court lacked personal jurisdiction over them in their official capacities because the plaintiff had failed to post a recognizance bond pursuant to statutes ([Rev. to 2013] § § 52-185 [a] and 52-186). The court granted the defendants' motion to dismiss the claims against them in their individual capacities because the plaintiff had not served them pursuant to the statute (§ 52-57 [a]) governing service of process on state employees who are sued in their individual capacities. The court further ordered the plaintiff to a post a recognizance bond or it would dismiss the entire complaint upon reclaim of the motion to dismiss. The plaintiff thereafter filed a motion for judgment. The court granted the motion and, in doing so, dismissed the plaintiff's claims against the defendants in their official capacities because he had not posted the recognizance bond pursuant to § 52-185 (a). The court thereafter rendered judgment for the defendants, and the plaintiff appealed to this court. He claimed that the trial court had improperly granted the defendants' motion to dismiss the claims against them in their individual capacities for having failed to serve them in accordance with § 52-57 (a). He further claimed that the recognizance bond requirement in § § 52-185 (a) and 52-186 did not apply to him or, that if it did apply to him, it was unconstitutional and in violation of his rights to due process and equal protection under the federal constitution. Held :

         1. The trial court properly granted the defendants' motion to dismiss the plaintiff's claims against them in their individual capacities for lack of personal jurisdiction because the defendants were not properly served pursuant to § 52-57 (a): that statute required the plaintiff either to leave the process with the defendants or to leave it at their usual places of abode, and the plaintiff failed to comply with § 52-57 (a) when he only attempted to serve process upon the defendants by leaving a copy of the process at the Office of the Attorney General; moreover, contrary to the plaintiff's claim that the statute (§ 52-64) pertaining to service in an action against the state permitted him to serve process upon the defendants in their individual capacities, § 52-64 is applicable only when a state employee has been sued in his official capacity.

         2. The trial court properly determined that the recognizance bond requirement in § 52-185 (a) applied to the plaintiff; contrary to the plaintiff's claim that he was not required to post a recognizance bond because costs could not be taxed against him if costs could not be taxed against the state in light of its sovereign immunity, the taxation of costs was authorized by statute (§ 52-257 [a]) in civil actions, as in this case, in which the matter in demand was not less than fifteen thousand dollars.

         3. This court concluded that, because the plaintiff had a constitutional right of access to the courts to challenge the conditions of his confinement and because § § 52-185 (a) and 52-186 contained no express exception to the recognizance bond requirement for indigent inmates, it was necessary to place an interpretive gloss on those provisions to avoid placing them in constitutional jeopardy, and to construe them as authorizing trial courts to exercise their discretion to waive the recognizance bond requirement or significantly reduce the amount of the bond upon a showing of an inmate's indigency and inability to find another financially responsible person willing to enter into a recognizance bond on the inmate's behalf; accordingly, the judgment was reversed in part and the case was remanded for a hearing on the plaintiff's request for a waiver of the recognizance bond requirement.

         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).

         Gruendel, Prescott and Pellegrino, Js. PRESCOTT, J. In this opinion the other judges concurred.

          OPINION

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          [163 Conn.App. 339] PRESCOTT, J.

          The plaintiff, James A. Harnage, appeals from the judgment of the trial court, dismissing his civil action in favor of the defendants[1] 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,

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the plaintiff claims that the [163 Conn.App. 340] 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 [163 Conn.App. 341] 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.

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In his objection, the plaintiff argued that he had properly served the defendants in their individual capacities by leaving a copy of the process with the attorney general at the Office of the Attorney General in Hartford. Furthermore, he claimed that the requirement of posting a recognizance bond pursuant to § 52-185 and Practice Book § 8-3 did not apply to him and, even if it did, the amount of the recognizance bond was in the court's discretion and should be limited to the nominal amount of one dollar, which, in essence, is a request for a waiver.

         On June 30, 2014, the court granted the defendants' motion to dismiss in part. Specifically, the court granted [163 Conn.App. 342] 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 [163 Conn.App. 343] 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

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meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . ." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650-51, 931 A.2d 142 (2007).

          [163 Conn.App. 344] We begin, as we must, with the language of the statutes at issue. Section 52-57 (a) provides: " Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." Section 52-57 (b) through (f) then set forth a number of exceptions to subsection (a). For example, subsection (d) provides in relevant part: " In actions against a partnership, service of process may be made by personally serving any process within the state upon any one of the partners or, if none of the partners are residents of the state, service may be made upon the Secretary of the State . . . ." General Statutes § 52-57 (d).

         Additionally, § 52-64 (a) provides: " Service of civil process in any civil action or proceeding maintainable against or in any appeal authorized from the actions of, or service of any foreign attachment or garnishment authorized against, the state or against any institution, board, commission, department or administrative tribunal thereof, or against any officer, servant, agent or employee of the state or of any such institution, board, commission, department or administrative tribunal, as 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 § 52-64 (a) by leaving a copy of the process with the attorney general at the Office of the Attorney General, has properly served the defendant [163 Conn.App. 345] only in his or her official capacity and has failed to properly serve the defendant in his or her individual capacity. See Traylor v. Gerratana, 148 Conn.App. 605, 612-13, 88 A.3d 552 (holding that plaintiff's claims against defendants in their individual capacities were barred by lack of personal jurisdiction on basis of improper service of process because plaintiff only served process on attorney general and not at defendants' places of abode as required by § 52-57 [a]), cert. denied, 312 Conn. 901, 91 A.3d 908, cert. denied, 312 Conn. 902, 91 A.3d 908, 112 A.3d 778, cert. denied, ___ U.S. ___, 135 S.Ct. 444, 190 L.Ed.2d 336 (2014); Edelman v. Page, 123 ...


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