Mercer v. Cosley

955 A.2d 550

110 Conn.App. 283

Eugene P. MERCER v. Katishia COSLEY et al.

No. 28960.

Appellate Court of Connecticut.

Argued June 2, 2008.

Decided September 16, 2008.

Eugene P. Mercer, pro se, the appellant (plaintiff).

William S. Fish, Jr., with whom was Paul Guggina, Hartford, for the appellees (defendants).

FLYNN, C.J., and BEACH and DUPONT, Js.

FLYNN, C.J.

The pro se plaintiff, Eugene P. Mercer, appeals from the summary judgment rendered by the trial court in favor of the defendants, Katishia Cosley, Burchell Henry, Paul Lewis and Jerry Martin and their employer, Tribune Television Company, also known as WTIC FOX-61 (collectively FOX-61), and Thomas M. O'Brien and his employer, Outlet Broadcasting, Inc., doing business as WVIT NBC-30 (collectively NBC-30). On appeal, the plaintiff claims that the court improperly (1) failed to recuse itself, sua sponte, on the basis of judicial bias and (2) rendered summary judgment in favor of the defendants on the plaintiff's libel claim. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and relevant procedural history. The plaintiff is an inmate serving a forty-five year sentence for felony murder. See State v. Mercer, 208 Conn. 52, 53-54, 544 A.2d 611 (1988). In July, 2004, the plaintiff filed an action against the state in the Superior Court, seeking treatment for physical symptoms related to acquired immune deficiency syndrome (AIDS) and claiming discrimination.¹ In that action, the plaintiff claimed, in part, that he "has [AIDS] resultant from his [human immunodeficiency virus (HIV)] infection" and that the state had discriminated against him in denying his "request for the reasonable accommodation of testosterone gel in January, 2004, [when] the ... request for testosterone gel was for the treatment of HIV-hypogonadism and erectile dysfunction. ..." He also alleged that the state "knew or should have reasonably known that the plaintiff's medical record reflects multiple instances over the course of several years concerning his decreased spontaneous erections, erectile dysfunction, decreased muscle mass and strength ..." and that the testosterone gel "restores sexual function, and muscle mass and strength and prevents bone loss." The plaintiff also filed two cases with the commission on human rights and opportunities in 2004, claiming, in part, that he suffers from "Vacuolar Myelopathy, Peripheral Neuropathy and HIV-[h]ypogonadism or erectile dysfunction," and that he "has been denied diagnosis and treatment of impotence and/or HIV-[h]ypogonadism."

On May 25, 2005, defendants NBC-30 and FOX-61 each aired a report regarding Governor M. Jodi Rell's order that the department of social services stop providing Viagra and other similar drugs to sexual offenders through the Medicaid program. They also discussed the plaintiff's complaints against the state during these reports.

In response, the plaintiff filed the present action against the defendants claiming, in relevant part,² libel per se,³ pursuant to General Statutes § 52-237.⁴ The complaint alleged, inter alia: "1. The plaintiff ... is currently an inmate incarcerated at the Connecticut correctional institution— Osborne. [The] [p]laintiff files this action against the [defendants] with claims of libel per se and [other additional claims]. ...

"6. ... [The defendants] acted with actual malice and reckless disregard of the truth and negligence in their broadcast of false allegations [and] defamatory statements. ...

"12. During the ten o'clock news ... broadcast on Wednesday, May 25, 2005, [t]he defendant[s] ... made individual and separate defamatory and slanderous statements [t]hat [the] plaintiff is suing ... the [s]tate or the [d]epartment of [c]orrection for Viagra, for treatment of [the] plaintiff's erectile dysfunction.'

"13. [The] [d]efendants Cosley and Henry [p]ublicly disclosed during their broadcasting the plaintiff's confidential HIV-related information. ... A photograph of the plaintiff was also publicly displaced during the defendant[s'] broadcast[s]. In addition to their television broadcast[s], the defendant[s] have published the defamatory and slanderous statement[s] through the Internet. ...

"14. ... [T]he defendant[s'] broadcast[s] [were] about or in response to Governor Jodi Rell's order to the state [d]epartment of [s]ocial [s]ervices to make sure state medical assistance programs do not cover the cost of erectile dysfunction drugs for registered sex offenders.

"15. In addition to their actual malice, defamatory and slanderous statements, the defendants placed the plaintiff in a false light as a registered sex offender and exposed the plaintiff to hatred, contempt or aversion and induced ... unsavory opinions of the plaintiff in the minds of a substantial number of the general public and the prison community.

"16. ... With malice in [public] broadcasting and publishing false accusations with defamatory and slanderous statements [the plaintiff] has [been] prejudiced ... in his reputation within the general public and prison community, and [the defendants have] placed the plaintiff's life ... in danger by intimidation and threat of physical harm by inmates of the prison population who perceive the plaintiff as a sex offender and/ or homosexual willing to infect other prisoners with HIV by engaging in sexual activities with the aid of [V]iagra, as well as harassment and intimidation of correctional officers.

"17. The plaintiff does not have, nor did the plaintiff ever have, any lawsuits against the state ... for [V]iagra as a treatment for erectile dysfunction.

"18. The plaintiff is not a sex offender or a registered sex offender, and is not a recipient of any state medical assistance programs. The plaintiff is a ward of the state [d]epartment of [c]orrection and receives all medical care from the [University of Connecticut] [c]orrectional [m]anaged [c]are contract. ...

"19. The plaintiff does have a pending lawsuit in [the] New Britain Superior Court, [Docket] No. CV-04-4000197-S against officials of the [department of correction] for discrimination based on disability ... for their failure to diagnose and treat HIV-[h]ypogonadism and/or erectile dysfunction. ... There is no allegation or request in the above mentioned complaint for [V]iagra. Rather, the treatment requested was testosterone gel and/or a urology consultation and appropriate therapy as would be prescribed by the urology consult.

"20. The plaintiff also has two pending complaints with the commission of [h]uman [r]ights and [o]pportunities, CHRO No. 0540397 and 0540398 against [the department of correction and the University of Connecticut Health Center/Correctional managed health care], respectively for discrimination based on disability ... for their failure to diagnose and treat HIV-[h]ypogonadism and/or erectile dysfunction. ... There is no allegation or request in the above mentioned ... complaint[s] for Viagra. Rather, the treatment requested was testosterone gel and/or a urology consult.

"21. The defendant[s'] reckless disregard of the truth, acts and omissions in their deliberate and negligent television broadcast and [I]nternet publication of false accusations, defamatory and slanderous statement[s] and their disclosure of the plaintiff's confidential HIV-related information has violated the plaintiff's right[s]. ..." (Internal quotation marks omitted.)

The complaint went on to allege: "Third claim of relief—Title 52-237 of the Connecticut [G]eneral [S]tatutes—libel per se—[General Statutes §] 19a-581 ...

"27. [The] defendant[s] acted with actual malice, reckless disregard [f] or the truth and negligence in their broadcast of false allegations, defamatory statement[s] and disclosure of the plaintiff's confidential HIV-related information, in violation of [General Statutes §§] 52-237 and 19a-581."

The defendants filed an answer and two special defenses to the plaintiff's libel claim, namely, substantial truth and the fair reporting privilege. On September 1, 2006, the defendants filed a motion for summary judgment, which was granted by the court on June 5, 2007, after it concluded that there were no material issues of fact in dispute and that both special defenses were applicable. This appeal followed. We affirm the summary judgment of the trial court.

I

On appeal, the plaintiff claims that the trial judge improperly failed to recuse himself, sua sponte, after demonstrating judicial bias in violation of canon 3(c)(1) of the Code of Judicial Conduct.⁵ The plaintiff argues that the judge demonstrated bias when he became the defendants' "adviser" in drafting an order denying in part the defendants' motion to strike, which stated, in relevant part, that if the "defendants had filed a motion for summary judgment, the decision might well have been different." The plaintiff acknowledges that this issue was not presented to the trial court and, therefore, is unpreserved. He requests that we employ plain error review.⁶ Having reviewed the record, we are unable to find anything, "in the interests of justice"; Practice Book § 60-5; that rises to the level of plain error. Nothing in the record undermines our confidence in the court's fact-finding process or demonstrates judicial bias.

"Ordinarily, we will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court through a motion for disqualification or a motion for mistrial. ... Because an accusation of judicial bias or prejudice strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary ... we nonetheless have reviewed unpreserved claims of judicial bias under the plain error doctrine." (Citations omitted; internal quotation marks omitted.) Doody v. Doody, 99 Conn.App. 512, 523, 914 A.2d 1058 (2007). "The plain error doctrine [however] is not ... a rule of reviewability. It is a rule of reversibility. That is, it...