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Green v. R.N. Shaw

United States District Court, D. Connecticut

October 18, 2017

COURTNEY GREEN, Plaintiff,
v.
R.N. SHAW, R.N. AUGUSTE, Defendants.

          RULING ON MOTIONS

          CHARLES S. HAIGHT, JR. Senior United States District Judge.

         Plaintiff 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.

         On 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 DENIED.

         I. LEGAL STANDARD

         A 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.").

         "Under 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).

         Section 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).

         II. DISCUSSION

         A. Motion for Prejudgment Remedy

         Plaintiff 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.

         Plaintiff's 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.

         B. Motion to Disclose Property

         Plaintiff 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.[1] 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.

         III. ...


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