United States District Court, D. Connecticut
RULING ON MOTIONS
CHARLES S. HAIGHT, JR. Senior United States District Judge.
Courtney Green ("Plaintiff"), proceeding pro
se, commenced this action pursuant to 42 U.S.C. §
1983 on June 2, 2017. Plaintiff is currently incarcerated at
Osborn Correctional Institution ("Osborn"), in
Connecticut. Plaintiff filed an Amended Complaint on July 10,
2017. On August 17, 2017, this Court issued an Initial Review
Order, permitting Plaintiff's section 1983 claims based
on a violation of the Eighth Amendment to proceed against
Defendant R.N. Shaw and Defendant R.N. Auguste
("Defendants") in their individual capacities.
Familiarity with the facts alleged in Plaintiff's Amended
Complaint is presumed.
September 22, 2017, Plaintiff filed a Motion for Prejudgment
Remedy, Doc. 13, and a Motion to Disclose Property, Doc. 14.
Defendants object to both motions. Docs. 16, 17. For the
reasons set forth below, Plaintiff's Motion for
Prejudgment Remedy and Motion to Disclose Property are
prejudgment remedy is intended to secure the satisfaction of
a potential monetary judgment. Cendant Corp. v.
Shelton, No. 3-06-CV-854, 2007 WL 1245310, at *2 (D.
Conn. Apr. 30, 2007); Fed.R.Civ.P. 64. State law is
determinative of when and how a provisional remedy may be
obtained. See Fed. R. Civ. P. 64; Bahrain
Telecomm. Co. v. DiscoveryTel, Inc., 476 F.Supp.2d 176,
183 (D. Conn. 2007); see also Everspeed Enterprises Ltd.
v. Skaarup Shipping Int'l., 754 F.Supp.2d 395, 401
(D. Conn. 2010) ("Rule 64 of the Federal Rules of Civil
Procedure permits a plaintiff to utilize the state
prejudgment remedies available to secure a judgment that
might ultimately be rendered in an action.").
Connecticut law, a prejudgment remedy is appropriate if the
court, 'upon consideration of the facts before it and
taking into account any defenses, counterclaims or setoffs
... finds that the plaintiff has shown probable cause that
such a judgment will be rendered in the matter in the
plaintiff's favor in the amount of the prejudgment remedy
sought[.]'" Roberts v. TriPlanet Partners,
LLC, 950 F.Supp.2d 418, 420 (D. Conn. 2013) (quoting
Conn. Gen. Stat. § 52-278d(a)). Thus, "[a]
prejudgment remedy may be obtained when the plaintiff
establishes that there is probable cause to sustain the
validity of his claims." Davila v. Secure Pharmacy
Plus, 329 F.Supp.2d 311, 313 (D. Conn. 2004) (citing
Conn. Gen. Stat. § 52-278d).
52-278b of the Connecticut General Statutes provides that
"no prejudgment remedy shall be available to a person in
any action at law or equity (1) unless he has complied with
the provisions of sections 52-278a to 52-278g[.]" Conn.
Gen. Stat. § 52-278b. Section 52-278c sets forth the
required documents that must be filed in connection with an
application for a prejudgment remedy, and the required notice
that must be served upon a defendant. Conn. Gen. Stat. §
52-278c. Except in instances inapplicable here, an
application for a prejudgment remedy must be accompanied by
an "affidavit sworn to by the plaintiff or any competent
affiant setting forth a statement of facts sufficient to show
that there is probable cause that a judgment in the amount of
the prejudgment remedy sought, or in an amount greater than
the amount of the prejudgment remedy sought[.]"Conn.
Gen. Stat. § 52-278c(a)(2); see also Davila,
329 F.Supp.2d at 313. Further, section 52-278c "requires
that a notice and claim form containing specific language be
attached to the application for prejudgment remedy."
Davila, 329 F.Supp.2d at 314 (citing Conn. Gen.
Stat. § 52-278c(e), (f), and (g)). The purpose of this
requirement is "to apprise respondent parties that they
have rights and options that might otherwise be unknown to
them." Robertson v. Bai, Pollock, Blueweiss, &
Mulcahey, P.C., No. CV085018161S, 2008 WL 4926749, at *1
(Conn. Super. Ct. Oct. 29, 2008).
Motion for Prejudgment Remedy
moves for a prejudgment remedy in the amount of $50, 000 per
Defendant. Doc. 13. To secure this sum, Plaintiff moves to
attach Defendants' properties; garnish their wages; and
seize any jewelry, paychecks, bank accounts, stocks, bonds,
automobiles, and houses. Id. at 2-3. In support of
his application, Plaintiff states, in a rather conclusory
fashion, that there is "probable cause that a judgment
will be rendered in the matter in favor of the
plaintiff[.]" Doc. 13 at 1-2. Defendants oppose
Plaintiff's motion, arguing, inter alia, that it
is procedurally infirm.
motion for a prejudgment remedy does not comply with the
statutory requirements set forth in section 52-278c of the
Connecticut General Statutes. Indeed, Plaintiff has failed to
submit a sworn affidavit that sets forth facts sufficient to
establish that there is probable cause that a judgment will
be rendered in his favor in the amount sought, as required by
section 52-278c(a)(2) of the Connecticut General Statutes.
Plaintiff has also neglected to attach to his motion the
notice and claim form required by section 52-278c(e), (f),
and (g). Plaintiff's motion is further deficient in that
it does not include order and summons forms, as directed by
section 52-278c(a) and (b). The failure to submit such an
affidavit and the failure to attach the appropriate forms
requires denial of Plaintiff's motion. See,
e.g., Adeyemi v. Murphy, No. 3:12CV960, 2012 WL
6155213, at *2 (D. Conn. Dec. 11, 2012) (denying a motion for
prejudgment remedy for failure to comply with the statutory
requirements of Conn. Gen. Stat. § 52-278c); Porter
v. Yale Univ. Police Dep't, No. 3:11-CV-526, 2011 WL
3290212, at *4 (D. Conn. Aug. 1, 2011) (same); Joyce v.
Hanney, No. 3:05-CV-1477, 2009 WL 2488022, at *1 (D.
Conn. Aug. 12, 2009) (same); Davila, 329 F.Supp.2d
at 313 (same). As Plaintiff's application for a
prejudgment remedy does not comply with the statutory
requirements, the motion will be denied without prejudice.
Motion to Disclose Property
has also filed a Motion to Disclose Property, pursuant to
Rule 64 of the Federal Rules of Civil Procedure, and section
52-278n of the Connecticut General Statutes. Section 52- 278n
provides that the court "may, on motion of a party,
order an appearing defendant to disclose property in which he
has an interest or debts owing to him sufficient to satisfy a
prejudgment remedy. The existence, location and extent of the
defendant's interest in such property or debts shall be
subject to disclosure. The form and terms of disclosure shall
be determined by the court." Conn. Gen. Stat. §
52-278n(a). Such disclosure may be ordered only "after
it has determined that the party filing the motion for
disclosure has, pursuant to section 52-278d, 52-278e or
52-278i, probable cause sufficient for the granting of a
prejudgment remedy." Id. at (c); see also
Wachovia Bank, N.A. v. Cummings, No. 3:09-CV-957, 2010
WL 466160, at *9 (D. Conn. Feb. 8, 2010) ("Generally,
under Connecticut law, a disclosure of assets is ordered if a
prejudgment remedy is ordered." (citation omitted)). As
Plaintiff has not established that there is probable cause
that a judgment will be rendered in his favor in the amount
sought, Plaintiff's motion for disclosure of
Defendants' assets will be denied.