Smith v. Dzurenda

Devon SMITH v. James DZURENDA et al.

No. CV155016827S

Superior Court of Connecticut, Judicial District of New Britain, New Britain

September 5, 2018

UNPUBLISHED OPINION

PETER EMMETT WIESE, JUDGE

I PROCEDURAL HISTORY

This action arises from an inmate’s alleged loss of personal property. That loss stems from three specific dates alleged in the complaint: December 27, 2011, May 8, 2012, and December 4, 2012.^[1]

On March 17, 2017, the plaintiff, Devon E. Smith, filed a four-count amended complaint against the defendants, the Department of Corrections (DOC) Acting Commissioner James Dzurenda, DOC Captain James Watson at Cheshire Correctional Institute (CCI), Correctional Officer Ceasor Faraci at CCI in the position of first shift property officer, and Correctional Officer Andrew T. Moore in the position of second shift senior A & D room officer at CCI. They are being sued in their official and individual capacities. The counts include intimidation, retaliation and harassment, deliberate indifference, wanton, and maliciousness, intentional infliction of emotional distress, and negligent infliction of emotional distress.

On each of the dates listed in the complaint, the plaintiff alleges that the defendants had personal issues with the plaintiff possessing certain personal items and had them confiscated, even though the items were lawfully obtained and owned by the plaintiff. The plaintiff alleges that the defendants worked to intimidate and mock the plaintiff and retaliated against him by destroying or not returning certain property items.^[2]

On April 4, 2017, the defendants filed a supplemental motion for summary judgment on the grounds that the plaintiff’s amended complaint is time barred by the three-year statute of limitations; even if the court finds that the claims are not time barred, the plaintiff’s official capacity claims are barred by the eleventh amendment of the U.S. constitution; the defendants are entitled to qualified immunity; and the defendants, as agents of the state of Connecticut, are entitled to statutory immunity on the plaintiff’s state law claims.

The plaintiff did not file a response.^[3] The court heard argument at a June 29, 2018 hearing.

II DISCUSSION

A. Applicable Law- Motion for Summary Judgment

"Summary judgment may be granted where the claim is barred by the statute of limitations ... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute ..." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013).

"[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Cefaratti v. Aranow, 321 Conn. 637, 645-46, 138 A.3d 837 (2016). "Put differently, it is then incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists." (Internal quotation marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d 1145 (2014).

B. Unauthenticated Documents

"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment ... Practice Book § [17-45], although containing the phrase including but not limited to, contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable ... [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Emphasis omitted; internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013).

"[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).

C. Statute of Limitations

In their memorandum in support of their motion for summary judgment, the defendants argue that the incidents that occurred before September 11, 2012, which is three years prior to the date that plaintiff filed and served his original complaint, are barred by the statute of limitations. Specifically, the defendants argue that the statute of limitations are "occurrence statutes." See Piteo v. Gottier, 112 Conn.App. 441, 445, 963 A.2d 83 (2009). As such, the time of the initial incident- December 27, 2011- would set the expiration of the statute of limitations three years from the date of the act complained of under the statute for tort actions. See General Statutes § 52-577 ("[n]o action founded upon a tort shall be brought but within three years from the date of the act complained of"). Thus, the defendants argue that any conduct that occurred prior to September 11, 2012 would be time barred.

Accordingly, the court finds that any conduct alleged to have occurred prior to September 11, 2012 is time barred by the applicable statute of limitations. This includes the following: conduct that occurred on December 27, 2011 regarding the plaintiff’s alleged loss of property; conduct during the subsequent interaction with the dog team; conduct that occurred during the retrieval of plaintiff’s property in the property room; conduct that relates to the return of plaintiff’s property by the defendant Faraci; conduct that occurred on May 8, 2012 regarding the plaintiff’s alleged loss of property during his transfer; and the alleged loss of the plaintiff’s Property File.

D. Remaining Allegations of December 4, 2012 Incident

i. New Factual Allegations

An amended complaint will be treated as filed at the time of the original complaint if it relates back to the original complaint. Jonap v. Silver, 1 Conn.App. 550, 555, 474 A.2d 800 (1984). "[A] party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same ... If a new cause of action is alleged in an amended complaint, however, it will [speak] as of the date when it was filed ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129-30, 788 A.2d 83 (2002).

In the present case, the plaintiff’s amended complaint is, in most instances, substantially similar to the original complaint filed in 2015. The additional facts that have been added to the amended complaint are contained in paragraph 28. Paragraph 28 alleges that prior to being moved to NCI, the plaintiff’s jewelry was taken from him, and upon its return to him at NCI, the charm and chain were "deliberately broken."

The plaintiff’s amended complaint alleges retaliation and a violation of the CCI Unit Directives during the December 4, 2012 incident. The original complaint does not lay out any factual basis or even mention the damage to the plaintiff’s jewelry. The original cause of action stemming from the December 4, 2012 conduct is that of retaliation, while the amended complaint attempts to add in further loss of property to his cause of action. Accordingly, the court finds that the plaintiff’s additional facts in paragraph 28 are new factual allegations that do not relate back to the original complaint and thus, state a new cause of action for conduct that occurred on December 4, 2012. The allegations of conduct that occurred on December 4, 2012, as contained in the amended complaint, will be taken as having been filed on March 17, 2017. Those new factual allegations contained in the amended complaint are outside the three-year statute of limitations.

ii. Remaining Allegations

The court finds that the remaining claims by the plaintiff are as follows: The plaintiff alleges in paragraph 22 of his amended complaint that on December 4, 2012, the defendant Moore attempted to house him with a "known homosexual" at CCI, which led the plaintiff to assault a CCI employee. The plaintiff further alleges that the defendant Moore failed to address the housing situation in retaliation for litigation filed against him by the plaintiff. Paragraph 26 alleges that following the incident of assault, numerous administrative complaints were filed against defendant Watson. In response to those complaints, the defendant allegedly falsely...