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ANDRES SOSA v. DAVE ROBINSON ET AL.
(AC 41832)
Prescott, Bright and Moll, Js.*
Syllabus
The plaintiff inmate appealed to this court from the summary judgment
rendered by the trial court in favor of the defendant D, a commissary
operator at the correctional facility in which the plaintiff was incarcer-
ated. The plaintiff brought an action against D in his individual and
official capacities, claiming under federal law (42 U.S.C. § 1983) that D
violated his rights under the first amendment by denying his application
to work in the prison commissary in retaliation for claims the plaintiff
previously had filed against other Department of Correction employees.
The plaintiff further alleged that D discriminated against him on the
basis of race in employment assignments and violated the takings clause
of the fifth amendment by misappropriating from inmate trust accounts
the interest earned on inmates’ Social Security benefits. The plaintiff
had been employed in the prison commissary in 2006 until he was given
a disciplinary citation and his employment was terminated, which he
did not dispute. More than seven years later, he applied for an assignment
in the commissary, but was denied by D because of the prior termination.
At the time the plaintiff’s application was denied, the prison had a written
policy that provided that, for an inmate to be eligible to work in the
commissary, he must have not been previously terminated from a com-
missary position. The trial court dismissed the first two counts of the
plaintiff’s complaint, in which he sought money damages and injunctive
and declaratory relief against D in his individual capacity. The court
concluded that it lacked subject matter jurisdiction because sovereign
immunity barred those claims. The court rendered summary judgment
on the plaintiff’s remaining claims because he failed to exhaust his
administrative remedies under the Prison Litigation Reform Act (42
U.S.C. § 1997e (a)) or to seek permission from the Claims Commissioner,
pursuant to statute (§§ 4-141 through 4-165) to sue the state. On appeal,
the plaintiff claimed, inter alia, that the trial court erred in concluding
that it did not have subject matter jurisdiction over his claims for com-
pensatory relief against D in his individual capacity and in concluding
that D was entitled to summary judgment because the plaintiff failed
to exhaust his administrative remedies. Held:
1. The trial court erred when it dismissed for lack of subject matter jurisdic-
tion the first two counts of the plaintiff’s complaint, as sovereign immu-
nity did not bar his claims for compensatory relief against D in his
individual capacity: the trial court’s application of the test established
in Somers v. Hill (143 Conn. 476) to determine if the plaintiff’s claim
under § 1983 was against the state and, thus, barred by the eleventh
amendment was incorrect, as the Supreme Court’s decision in Sullins
v. Rodriguez (281 Conn. 128) made clear that § 1983 claims must be
analyzed pursuant to federal law and that the eleventh amendment
analysis of Somers is wholly inapplicable, and, although the plaintiff
named D in his official and individual capacities as the party against
whom he sought relief, this court viewed the claim for damages as
against D solely in his individual capacity, and, thus, the plaintiff’s
articulation of D’s capacity in the complaint was sufficient to commence
a § 1983 claim against a state officer in his individual capacity.
2. D was entitled to summary judgment on the first count of the plaintiff’s
complaint, which alleged retaliation, and the second count of the com-
plaint, which alleged discrimination, failed as a matter of law:
a. The plaintiff failed to submit any evidence to create a genuine issue
of material fact that there was a causal connection between his protected
first amendment activity and the adverse employment action, as he
produced no evidence disputing his termination from the commissary
in 2006 or the existence and applicability of the prison’s hiring policy,
and he produced no evidence that D had any role in the adoption of
the policy or that it was not applied in a consistent fashion to all inmates.
b. The plaintiff failed to demonstrate the existence of a genuine issue
of material fact as to D’s discriminatory intent, as the plaintiff’s prior
termination from his job as a commissary line worker constituted a
legitimate, nondiscriminatory reason for the denial of his application
for employment in the commissary; although the plaintiff proffered
evidence that tended to show that he was a member of a protected
class who was qualified for the position and had suffered an adverse
employment action, he failed to offer any evidence, direct or circumstan-
tial, that established an inference of discrimination underlying D’s rejec-
tion of his application, and this court could not infer from his allegations
of discrimination alone that D acted with discriminatory intent.
3. The plaintiff’s takings claim failed as a matter of law, as he neither alleged
nor submitted any evidence regarding an appropriation of his property
or any evidence of an unconstitutional taking by D, his right to recover
having been limited to the allegations set forth in his complaint, which
alleged that inmates without Social Security numbers are denied employ-
ment in the commissary.
Argued February 19—officially released September 22, 2020
Procedural History
Action to recover damages for the defendants’ alleged
violations of the plaintiff’s constitutional rights, and for
other relief, brought to the Superior Court in the judicial
district of New Britain, where the action was withdrawn
as against the defendant Steven Plourde; thereafter, the
court, Swienton, J., dismissed certain counts of the
complaint; subsequently, the court granted the named
defendant’s motion for summary judgment and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Improper form of judgment;
affirmed in part; judgment directed in part.
Andres R. Sosa, self-represented, the appellant
(plaintiff).
Janelle R. Medeiros, assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellee (named defendant).
Opinion
BRIGHT, J. The plaintiff, Andres Sosa, appeals from
the judgment of the trial court, dismissing certain
counts of his complaint in which he sought compensa-
tory relief from the defendant, Dave Robinson,1 a cor-
rectional commissary lead operator at the MacDougall-
Walker Correctional Institution (MacDougall), in his
individual capacity and rendering summary judgment
on the remainder of the complaint in favor of the defen-
dant. The plaintiff claims that the court erred in con-
cluding that it did not have subject matter jurisdiction
over his claims seeking compensatory relief against the
defendant in his individual capacity and erred in con-
cluding that the defendant was entitled to summary
judgment on the remainder of the plaintiff’s complaint
due to the plaintiff’s failure to exhaust his administra-
tive remedies. In addition to arguing that the court’s
subject matter jurisdiction analysis was correct, the
defendant argues in the alternative that the court cor-
rectly rendered summary judgment in his favor because
the plaintiff’s claims fail as a matter of law. We agree
with the plaintiff that the court had jurisdiction over
the claims in which he seeks compensatory relief
against the defendant in his individual capacity. We
agree, however, with the defendant’s alternative argu-
ment that the plaintiff’s claims fail on their merits as a
matter of law. Therefore, we reverse in part and affirm
in part the judgment of the trial court.2
The following facts, viewed in the light most favor-
able to the plaintiff, and procedural history are relevant
to our analysis of the plaintiff’s claims.
At all times relevant to this appeal, the plaintiff was an
inmate at MacDougall. While incarcerated, the plaintiff
filed a number of inmate complaints alleging that sev-
eral Department of Correction (department) employees
were engaging in discriminatory practices and favorit-
ism. The first complaint of record was in response to
the plaintiff’s removal from the M housing unit (M-
unit)3 on August 24, 2004, for ‘‘unknown reasons.’’ On
September 1, 2004, the plaintiff wrote to the M-unit
major, claiming that he was discriminated against
because no misconduct report was filed prior to his
removal. The plaintiff further suggested that Warden
John Sieminski was retaliating against him for his pend-
ing lawsuit against Warden Giovanny Gomez.
On September 22, 2004, the plaintiff filed an inmate
request form, alleging that he was discriminated against
by the defendant on September 17, 2004. Specifically,
the plaintiff stated that when he showed up to begin
working in the commissary, the defendant turned him
away twice for not having completed a commissary
work application, a document the plaintiff alleged he,
in fact, did complete. On October 15, 2004, Andrea S.
Baker, the classification committee chairperson, issued
a response to the plaintiff’s request in which she con-
cluded that there was no discrimination in the plaintiff’s
assignment. Baker further stated that the plaintiff was
‘‘on the institutional laundry waiting list as a primary,
as well as, the commissary waiting list as a secondary’’
and that job placement was moving slowly ‘‘due to the
volume of inmates on the job waiting lists.’’
On January 3, 2005, the plaintiff began working in
the commissary until he subsequently was transferred
to the restrictive housing unit on June 27, 2005, for
allegedly ‘‘interfering with . . . safety and security.’’
The plaintiff later was acquitted of the disciplinary cita-
tion on July 12, 2005. Soon thereafter, the plaintiff spoke
with Sieminski about having his job restored because
the disciplinary citation was dismissed and he was
released from restrictive housing. Sieminski advised the
plaintiff to write to his unit major to resolve the matter.
After again alleging that he was being discriminated
against, the plaintiff, with the help of the Inmates’ Legal
Assistance Program, was reinstated to his commissary
job on September 9, 2005.
While working in the commissary, the plaintiff
received, for the most part, positive feedback from his
supervisors for his job performance. On May 8, 2006,
however, Alicia Demars, a commissary supervisor,
issued the plaintiff a class B disciplinary citation, alleg-
edly because he ‘‘became belligerent’’ and started ‘‘caus-
ing a disruption’’ when she gave him a direct order. As
a result, the plaintiff’s employment in the commissary
was terminated. There is no evidence that the plaintiff
disputed the disciplinary citation or his termination of
employment from the commissary.
On September 10, 2013, the plaintiff filed another
inmate request form, this time with Warden Peter Mur-
phy, requesting assistance with the commissary applica-
tion process. In response, on September 23, 2013, a
paralegal with the department’s legal affairs unit
informed the plaintiff that Lou Failla, the commissary
lead supervisor, would consider the plaintiff’s applica-
tion for an assignment in the commissary, provided that
the plaintiff met all of the qualifications for such a
position. On February 7, 2014, the plaintiff was informed
that the defendant had denied his application due to the
plaintiff’s May, 2006 disciplinary report and termination.
At the time that the plaintiff’s application was denied,
MacDougall had a written policy that provided that, for
an inmate to be eligible to work in the commissary, he
must ‘‘[h]ave not been previously terminated from a
commissary position.’’
On February 8, 2014, the plaintiff filed a grievance
against the defendant and Steven Plourde, the depart-
ment’s fiscal administrative supervisor for commissary
administration, alleging that they denied his commis-
sary job application despite his meeting all of the requi-
site criteria. The plaintiff further alleged that the defen-
dant and Plourde engaged in the inconsistent
enforcement of facility rules, favoritism, and retaliation.
On February 18, 2015, the plaintiff commenced this
action for compensatory, declaratory, and injunctive
relief against the defendant in his individual and official
capacities, raising federal claims pursuant to 42 U.S.C.
§ 1983 and a takings claim.4 In the first count of his three
count complaint, the plaintiff alleged that the defendant
violated his rights under the first amendment to the
United States constitution by denying his commissary
job application in retaliation for claims he previously
had filed against other department employees.5 In par-
ticular, the plaintiff claimed that his filing of claims
against other department employees was protected
speech, and that, by denying his commissary job appli-
cation, the defendant took adverse action against him
in violation of his first amendment right to petition the
government for redress of grievances.
In the second count, the plaintiff alleged that the
defendant violated the equal protection clause of the
fourteenth amendment to the United States constitution
by discriminating against him in his employment assign-
ments. Specifically, the plaintiff stated: ‘‘The [defen-
dant] is clearly violating the equal protection of law by
deliberately and purposely discriminating [against] the
plaintiff, a minority race (Hispanic), a [n]ative [c]itizen
of the Dominican Republic in the [c]lassification of [a]
[j]ob [a]ssignment [in the commissary] . . . .’’
Finally, in his third count, the plaintiff set forth a
claim that made reference to the defendant’s allegedly
misappropriating from inmate trust accounts interest
earned by inmates on their Social Security benefits. The
plaintiff alleged that the defendant had a practice of
not employing illegal immigrants and citizens without
Social Security numbers because he could take interest
earned on Social Security benefits only from the inmate
accounts of individuals with a Social Security number.
The plaintiff further alleged that a property interest
exists in whatever interest has accrued on moneys in
an inmate trust account, and the defendant’s appropria-
tion of that interest constitutes an unconstitutional tak-
ing in violation of the takings clause of the fifth amend-
ment to the United States constitution.
As to the first and second counts of his complaint,
the plaintiff sought actual damages, punitive damages,
declaratory relief, and injunctive relief against the
defendant in both his individual and official capacities.
As to the third count of his complaint, although the
plaintiff did not allege that there had been any taking
of any money from his inmate trust account, the plaintiff
sought the return of all ‘‘tax return’’ interest collected
by the defendant.
In his answer, filed on June 26, 2015, the defendant
denied the plaintiff’s allegations and raised five special
defenses. The defendant asserted that (1) the court
lacked jurisdiction over all three counts because the
defendant is immune from suit pursuant to General
Statutes § 4-165, (2) the plaintiff failed to state a claim
for which relief may be granted, (3) in the absence of
an allegation of permission to sue the state, pursuant
to General Statutes § 4-160 (b), the plaintiff failed to
state a claim on which relief may be granted, (4) to
the extent that the plaintiff sought equitable relief and
recovery of money damages from the defendant, the
court lacks subject matter jurisdiction over the dispute
on the basis of sovereign immunity, and (5) the plaintiff
has failed to exhaust his administrative remedies.
On November 19, 2015, the defendant filed a motion
for summary judgment, asserting that the decision to
reject the plaintiff’s commissary application was based
on nondiscriminatory reasons, namely, because the
plaintiff previously had been terminated from a commis-
sary position. The plaintiff filed an objection to the
defendant’s motion on January 18, 2016, arguing that
(1) the adverse action taken by the defendant would
not have occurred but for the plaintiff’s filing of claims
against other department officials, (2) a genuine issue
of material fact existed as to whether the plaintiff was
intentionally treated differently from other similarly sit-
uated inmates in his housing unit and whether there
was a rational basis for the difference in treatment, and
(3) the defendant’s unconstitutional taking did not arise
out of the denial of the plaintiff’s commissary job appli-
cation but, rather, arose out of the defendant’s withhold-
ing of interest on moneys in the plaintiff’s inmate
trust account.
On February 16, 2018, the defendant filed a supple-
mental memorandum of law in support of his motion
for summary judgment, arguing that (1) sovereign
immunity barred the plaintiff’s claims for money dam-
ages against the defendant in his official capacity, (2)
sovereign immunity barred the plaintiff’s claims for
money damages against the defendant in his individual
capacity, (3) all of the plaintiff’s claims for official
capacity relief were barred by sovereign immunity
under the eleventh amendment to the United States
constitution, (4) the plaintiff’s takings, equal protection,
and retaliation claims failed as a matter of law, (5) the
plaintiff failed to exhaust the administrative remedies
available to him prior to bringing the underlying action,
as required under the Prison Litigation Reform Act, 42
U.S.C. § 1997e (a), and (6) the plaintiff could not prove
the existence of any genuine issue of material fact
regarding the grounds for his denial of employment in
the commissary.
On March 21, 2018, the plaintiff filed a memorandum
of law in opposition to the defendant’s supplemental
memorandum of law in support of the motion for sum-
mary judgment, arguing that (1) the plaintiff’s claims
for money damages against the defendant were not
barred by sovereign immunity, (2) the plaintiff’s prop-
erty interest was protected by the takings clause, and
‘‘appropriation of that interest by prison officials may
be a taking for public [use] that requires just compensa-
tion,’’ (3) the plaintiff suffered an adverse action in
connection with his employment in the commissary,
and the adverse action occurred under conditions giving
rise to an inference of discrimination, (4) the defendant
disproportionately applied a custom hiring policy
against the plaintiff and could not provide a legitimate,
nondiscriminatory reason for the denial of his commis-
sary job application, (5) the evidence proved that the
defendant retaliated against the plaintiff because the
plaintiff was qualified to work in the commissary and
the defendant’s custom hiring policy, which was not in
effect during the plaintiff’s employment in the commis-
sary, cannot be applied retroactively, and (6) the plain-
tiff proffered sufficient evidence that showed the exis-
tence of a genuine issue of material fact.
On May 30, 2018, the court (1) dismissed the plaintiff’s
claims for money damages against the defendant in
his individual capacity because it concluded that those
claims were barred by sovereign immunity,6 (2) dis-
missed the plaintiff’s claims seeking injunctive and
declaratory relief against the defendant in his individual
capacity because the court lacked subject matter juris-
diction over those claims, as they were similarly barred
by sovereign immunity, and (3) rendered summary judg-
ment in favor of the defendant as to the plaintiff’s
remaining claims because the plaintiff had failed to
exhaust his administrative remedies before pursuing
those claims. The court reasoned that, to the extent
that the plaintiff brought claims for money damages
against the defendant in his official capacity, those
claims would constitute an action against the state,
which would be barred by sovereign immunity. The
court also concluded that the plaintiff’s claim for dam-
ages against the defendant in his individual capacity
was barred by sovereign immunity because, inter alia,
the state is the real party against whom relief is sought.
Similarly, to the extent that the plaintiff brought claims
for declaratory and injunctive relief against the defen-
dant in his individual capacity, the court determined
that, notwithstanding those claims falling under the sec-
ond and third exceptions to sovereign immunity under
state law,7 the plaintiff’s claims would subject the state
to liability as the real party against whom relief would
be sought, which, according to the court, barred those
claims on sovereign immunity grounds. As to exhaus-
tion, the court concluded that the plaintiff had failed
to comply with the exhaustion requirements of 42 U.S.C.
§ 1997e et seq., and had failed to seek the permission of
the Claims Commissioner, pursuant to General Statutes
§§ 4-141 through 4-165, before seeking money damages
against the state. This appeal followed. Additional facts
will be set forth as necessary.
I
On appeal, the plaintiff first claims that the trial court
erred in concluding that, because he was seeking money
damages from the defendant, sovereign immunity
barred his retaliation and discrimination claims brought
against the defendant in his individual capacity. The
defendant responds that the court properly dismissed
the claims seeking money damages against him in his
individual capacity. In the alternative, the defendant
argues that, even if the court erred, the claims, nonethe-
less, fail on their merits as a matter of law. We agree
that the claims are not barred by sovereign immunity
but conclude that they fail as a matter of law.
At the outset, we note that sovereign immunity impli-
cates the court’s subject matter jurisdiction, which
raises a question of law subject to plenary review. See,
e.g., Manifold v. Ragaglia, 94 Conn. App. 103, 114, 891
A.2d 106 (2006). We also note that a challenge to the
court’s subject matter jurisdiction is ordinarily raised
by way of a motion to dismiss. Id., 116 (‘‘[i]n general,
a motion to dismiss is the appropriate procedural vehi-
cle to raise a claim that sovereign immunity . . . bars
the action’’ (internal quotation marks omitted)). Our
Supreme Court, however, has held that a motion for
summary judgment is also an appropriate means of
challenging the court’s subject matter jurisdiction, as
the question of subject matter jurisdiction can be raised
at any time. See, e.g., id., 119. Furthermore, once the
question of the court’s subject matter jurisdiction is
raised, it must be resolved before the court addresses
the merits of the plaintiff’s claims. See id., 116.
The trial court determined that it did not have subject
matter jurisdiction over any count that alleged that the
defendant was liable in his individual capacity because
such liability was barred by sovereign immunity. Conse-
quently, the court dismissed those claims. Therefore,
we first must address the jurisdictional question of
whether the court properly applied sovereign immunity
to each of the plaintiff’s individual capacity claims.
In his complaint, the plaintiff alleged that the defen-
dant (1) violated his first amendment right to petition
the government for redress of grievances by denying
his commissary job application in retaliation for the
claims he previously had brought against other depart-
ment officials and (2) violated his fourteenth amend-
ment right to equal protection of the law by discriminat-
ing against him on the basis of race in job placements.
The plaintiff maintained that the defendant’s alleged
constitutional violations of his rights entitled him to
both compensatory relief and punitive damages. In
response, the defendant argued that the eleventh
amendment to the United States constitution barred
the plaintiff’s claims for money damages because the
defendant at all times was acting in his official capacity.
The trial court agreed, concluding that it lacked subject
matter jurisdiction over the plaintiff’s individual capac-
ity claims. For the reasons that follow, we conclude
that the court applied the incorrect legal test to the
plaintiff’s § 1983 claims. Applying the correct test, we
conclude that sovereign immunity does not bar the
plaintiff’s claims for compensatory relief against the
defendant in his individual capacity.
The following legal principles are relevant to our
resolution of the plaintiff’s claim for money damages
against the defendant in his individual capacity. ‘‘Sec-
tion 1983 of title 42 of the United States Code provides
in relevant part: Every person who, under color of any
statute, ordinance, regulation, custom, or usage, or any
[s]tate or [t]erritory or the District of Columbia, sub-
jects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities
secured by the [c]onstitution and laws, shall be liable
to the party injured in an action at law, suit in equity,
or other proper proceedings for redress . . . . A state
as an entity having immunity under the eleventh amend-
ment to the United States constitution, is not a person
within the meaning of § 1983 and thus is not subject to
suit under § 1983 in either federal court or state court.
. . . This rule also extends to state officers sued in
their official capacities.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Miller v.
Egan, 265 Conn. 301, 310–11, 828 A.2d 549 (2003).
‘‘[S]tate officials sued for money damages in their
official capacities are not ‘persons’ within the meaning
of § 1983 because the action against them is one against
the office and, thus, no different from an action against
the state itself. . . . State officials are, however, ‘per-
sons’ within the meaning of § 1983 and may be held
personally liable when sued as individuals for actions
taken in their official capacities and, thus, under color
of law.’’ (Citation omitted.) Sullins v. Rodriguez, 281
Conn. 128, 141, 913 A.2d 415 (2007).
‘‘The United States Supreme Court has asserted that
[f]ederal law is enforceable in state courts . . .
because the [c]onstitution and laws passed pursuant to
it are as much laws in the [s]tates as laws passed by
the state legislature. . . . State courts have concurrent
jurisdiction over claims brought under § 1983. . . .
Nevertheless, [c]onduct by persons acting under color
of state law which is wrongful under 42 U.S.C. § 1983
. . . cannot be immunized by state law. A construction
of the federal statute which permitted a state immunity
defense to have controlling effect would transmute a
basic guarantee into an illusory promise; and the
supremacy clause of the Constitution insures that the
proper construction may be enforced. . . . The ele-
ments of, and the defenses to, a federal cause of action
are defined by federal law.’’ (Citations omitted; empha-
sis added; internal quotation marks omitted.) Id.,
133–34.
In Sullins, the court was faced with the question of
whether the trial court erred in denying the defendant’s
motion to dismiss the plaintiff’s complaint for lack of
subject matter jurisdiction on sovereign immunity
grounds in circumstances similar to those present in
this case. Id., 129–30. The plaintiff, a former inmate of
Northern Correctional Institution (Northern), sought
compensatory relief against the defendant in his individ-
ual capacity pursuant to § 1983, arising out of the defen-
dant’s alleged violation of the plaintiff’s eighth and four-
teenth amendment rights under the United States
constitution. Id., 130–32. The defendant, a former war-
den of Northern, argued that the trial court improperly
‘‘applied federal, not state, sovereign immunity law’’
and improperly ‘‘rejected [his] position that the state
is the real party in interest, despite the plaintiff’s allega-
tions naming the defendant in his individual capacity.’’
Id., 130. As does the defendant in this case, in Sullins,
the defendant argued that the four part test articulated
in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871
(1975), and Somers v. Hill, 143 Conn. 476, 123 A.2d
468 (1956), applied to determine whether the plaintiff’s
claim was a claim against the state that was barred by
the eleventh amendment. Sullins v. Rodriguez, supra,
281 Conn. 131.8
The court explicitly rejected the defendant’s reliance
on these cases and the eleventh amendment. Id., 133
n.8. Instead, the court concluded that, ‘‘when sovereign
immunity is claimed as a defense to a cause of action
pursuant to § 1983, federal sovereign immunity jurispru-
dence preempts analysis under state law.’’ Id., 133. In
reaching its conclusion, the court cited to a number of
cases that stand for the proposition that federal prece-
dent defines the contours of immunity available to gov-
ernment officials in the context of an action under
§ 1983. Id., 134–36. Notably, the court cited to its deci-
sion in Miller, in which it considered whether both
the plaintiff’s state law and federal § 1983 claims were
barred by the defendants’ sovereign immunity defense.
Id., 135. The court noted that, in Miller, it addressed
separately the plaintiff’s § 1983 claim and concluded
that, pursuant to federal precedent, the plaintiff’s claim
was an action against the state, which was barred by
sovereign immunity. Id., 135 n.9. The court explained:
‘‘Thus, we conclude that, although the test set forth in
Spring and Miller is an appropriate mechanism for our
state courts to determine the capacity in which the
named defendants are sued in actions asserting viola-
tions of state law, to employ that test to divest state
courts of jurisdiction to hear otherwise cognizable
§ 1983 claims would be to erect a constitutionally imper-
missible barrier to the vindication of federal rights. . . .
We find no merit in the defendant’s contention that the
result of our conclusion is to preclude the defense of
sovereign immunity in every action under § 1983. Sover-
eign immunity may bar a plaintiff’s claim pursuant to
§ 1983, but the trial court concluded, and we agree,
that federal law must govern that inquiry.’’ (Citation
omitted.) Id., 136.
The court then considered the defendant’s argument
that, in Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240,
144 L. Ed. 2d 636 (1999), the United States Supreme
Court determined that the eleventh amendment barred
federal claims brought against a state both in federal
and state courts. Sullins v. Rodriguez, supra, 281 Conn.
136–38. In Alden, the Supreme Court stated that ‘‘the
sovereign immunity of the [s]tates neither derives from,
nor is limited by, the terms of the [e]leventh [a]mend-
ment.’’ Alden v. Maine, supra, 713. The court in Alden
stated further that, ‘‘save where there has been a surren-
der of [sovereign] immunity [in the constitution]’’;
(internal quotation marks omitted) id., 730; ‘‘Congress
lacks the [a]rticle I power to subject the [s]tates to
private suits in [their own courts].’’ Id., 748.
The court in Sullins reasoned that Alden ‘‘introduced
uniformity in the state and federal courts as to the
availability of a sovereign immunity defense. In Howlett
[v. Rose, 496 U.S. 356, 110 S. Ct. 2430, 110 L. Ed. 2d
332 (1990)], the court held that a sovereign immunity
defense that was not available in federal court could
not be employed in state court. . . . In Alden, the court
achieved uniformity in the other direction, by making
available in a state forum a sovereign immunity defense
that was already available in federal court.’’ (Citation
omitted; emphasis added.) Sullins v. Rodriguez, supra,
281 Conn. 138. Nevertheless, the court concluded that
Alden was inapplicable to the plaintiff’s § 1983 claim.
‘‘Congress, however, did not pass § 1983 pursuant to
its article one power. It was, instead, ‘one of the means
whereby Congress exercised the power vested in it
by § 5 of the [f]ourteenth [a]mendment to enforce the
provisions of that [a]mendment.’ Monroe v. Pape, 365
U.S. 167, 171, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961)
[overruled in part on other grounds by Monell v. Dept.
of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L.
Ed. 2d 611 (1978)]. Section 5 empowers Congress to
abrogate state sovereign immunity. According to the
Supreme Court, ‘[w]hen Congress acts pursuant to § 5,
not only is it exercising legislative authority that is
plenary within the terms of the constitutional grant,
it is exercising that authority under one section of a
constitutional [a]mendment whose other sections by
their own terms embody limitations on state authority.
We think that Congress may, in determining what is
‘‘appropriate legislation’’ for the purpose of enforcing
the provisions of the [f]ourteenth [a]mendment, pro-
vide for private suits against [s]tates or state officials
which are constitutionally impermissible in other con-
texts.’ . . . Fitzpatrick v. Bitzer, [427 U.S. 445, 456, 96
S. Ct. 2666, 49 L. Ed. 2d 614 (1976)].’’ (Emphasis in
original; footnote omitted.) Sullins v. Rodriguez,
supra, 139–40.
Thus, our Supreme Court’s thorough analysis in Sul-
lins makes clear that the plaintiff’s § 1983 claims must
be analyzed pursuant to federal law and that the elev-
enth amendment analysis of Spring and Somers is
wholly inapplicable. Nevertheless, in reaching its con-
clusion that sovereign immunity barred the plaintiff’s
individual capacity claims for compensatory relief, the
trial court in the present case did not discuss Sullins
or any of the legal principles discussed therein. Instead,
the trial court incorrectly applied the four-pronged test
established in Somers.9 We now apply the correct test
and analyze under federal law whether the plaintiff’s
claims for money damages against the defendant in his
individual capacity are barred by sovereign immunity.
In the first and second counts of his complaint, the
plaintiff explicitly named the defendant, in both his
official and individual capacities, as the party against
whom he sought relief. Nevertheless, in his memoran-
dum of law in opposition to the defendant’s motion
for summary judgment, the plaintiff acknowledged that
‘‘sovereign immunity . . . protect[s] the government
and the [s]tate . . . . [It does not] protect those [like]
the defendant who commit unconstitutional practices
by [breaking] the law.’’ Thus, we view the plaintiff’s
claim for damages against the defendant as seeking
damages against him solely in his individual capacity.
See footnote 6 of this opinion. Although the United
States Supreme Court has held that a sovereign immu-
nity defense cannot be overcome merely by the
‘‘mechanics of captions and pleading’’; Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. 261, 270, 117 S. Ct.
2028, 138 L. Ed. 2d 438 (1997); our Supreme Court has
interpreted the holding in Coeur d’Alene Tribe of Idaho
‘‘to stand for the narrow proposition that, when a plain-
tiff seeks relief that only the state can provide, he or
she may not overcome sovereign immunity simply by
suing an individual actor.’’ (Emphasis in original.) Sul-
lins v. Rodriguez, supra, 281 Conn. 143. Because the
money damages sought by the plaintiff are relief that
the defendant, in fact, can provide, the plaintiff’s articu-
lation of the defendant’s capacity in his complaint ‘‘is
sufficient to commence a § 1983 claim against a state
officer in his individual capacity.’’ Id., 141.
Accordingly, we conclude that the trial court erred
when it determined that the plaintiff’s claims for com-
pensatory relief against the defendant in his individual
capacity are barred by sovereign immunity. Conse-
quently, the court erred when it dismissed for lack of
subject matter jurisdiction counts one and two against
the defendant in his individual capacity.10
II
Having addressed the court’s subject matter jurisdic-
tion, we consider the defendant’s alternative argument
that the plaintiff’s claims for retaliation and discrimina-
tion fail on their merits, as a matter of law.
We begin with our standard of review. ‘‘The standards
governing our review of a trial court’s decision to grant
a motion for summary judgment [as to the merits of
a claim] are well established. Practice Book [§ 17-49]
provides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . . A
material fact . . . [is] a fact which will make a differ-
ence in the result of the case. . . . Finally, the scope
of our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Escourse v. 100 Taylor Ave-
nue, LLC, 150 Conn. App. 819, 823, 92 A.3d 1025 (2014).
‘‘Where the trial court reaches a correct decision
but on [alternative] grounds, this court has repeatedly
sustained the trial court’s action if proper grounds exist
to support it. . . . [W]e . . . may affirm the court’s
judgment on a dispositive alternat[ive] ground for which
there is support in the trial court record.’’ (Citation
omitted; internal quotation marks omitted.) Pequon-
nock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 599,
790 A.2d 1178 (2002).
The following additional facts and procedural history
are relevant to our resolution of the plaintiff’s retaliation
and discrimination claims. In support of his argument
that he did not deny the plaintiff’s commissary applica-
tion for retaliatory or discriminatory reasons, the defen-
dant attached his sworn affidavit to his November 19,
2015 motion for summary judgment. In his affidavit, the
defendant averred that he knew of the plaintiff’s other
lawsuits against department employees but that he did
not know the names of those employees. The defendant
further averred that he did not recall seeing the plain-
tiff’s 2014 commissary application but that the plaintiff
‘‘would not have been hired because one of the require-
ments is that the inmate was not previously terminated
from the [c]ommissary.’’ Finally, the defendant averred
that he was ‘‘not responsible for the policy concerning
the eligibility of inmates for jobs in the [c]ommissary.’’
In addition to his affidavit, the defendant also
attached a copy of the commissary inmate worker clas-
sification requirements (MacDougall hiring policy),
revised on February 27, 2010, which stated in relevant
part: ‘‘In order to be eligible to be classified to a position
in the MacDougall/Walker commissary each inmate
must meet the conditions stated below. Prior to being
classified the inmate must . . . [h]ave not been pre-
viously terminated from a commissary position . . .
[and] [n]o candidate will be placed in the commissary
without meeting all of the conditions stated above.’’
In his January 18, 2016 memorandum of law in opposi-
tion to the defendant’s motion for summary judgment,
the plaintiff maintained that he was denied commissary
employment for retaliatory reasons. Specifically, the
plaintiff argued that ‘‘[t]here is no legitimate penological
nondiscriminatory reason [for] the [defendant] not to
afford the plaintiff with the same job/program equal
opportunity other than retaliation and discrimination
since the plaintiff was already not working in the prison
commissary at the time the custom policy was [estab-
lished]. . . . [It cannot] apply retroactive[ly] to the
plaintiff at all, [e]specially when the same custom policy
is not being use[d] with other inmates hired by the
[defendant] who fall under the same criteria as the
plaintiff.’’ The plaintiff further argued that the defendant
was ‘‘personally involved not only because of [his] link-
age in the chain of command but also because [he]
drafted the unconstitutional custom prison policy used
in the employment decision . . . .’’ The plaintiff sub-
mitted no evidence in support of these arguments.
The defendant, in his February 16, 2018 supplemental
memorandum of law in support of his motion for sum-
mary judgment, argued, among other things, that the
plaintiff’s claims fail as a matter of law. Specifically,
the defendant argued that, with respect to the plaintiff’s
discrimination claim, any purported adverse action that
he took against the plaintiff was for legitimate, nondis-
criminatory reasons, namely, the plaintiff’s failure to
meet the requirements under the MacDougall hiring
policy. As to the plaintiff’s retaliation claim, the defen-
dant argued further that the plaintiff failed to provide
any evidence to suggest that his allegations against
other department officials motivated the defendant’s
decision to deny the plaintiff employment in the com-
missary.
A
We now turn our attention to the plaintiff’s retaliation
claim. The following legal principles inform our conclu-
sion that the defendant is entitled to judgment as a
matter of law. ‘‘[The United States Court of Appeals for
the Second Circuit] has held that retaliation against a
prisoner for pursuing a grievance violates the right to
petition government for the redress of grievances guar-
anteed by the [f]irst and [f]ourteenth [a]mendments and
is actionable under § 1983. . . . [I]ntentional obstruc-
tion of a prisoner’s right to seek redress of grievances
is precisely the sort of oppression that . . . [§] 1983
[is] intended to remedy.’’ (Citation omitted; internal
quotation marks omitted.) Graham v. Henderson, 89
F.3d 75, 80 (2d Cir. 1996).
‘‘To prevail on a [f]irst [a]mendment retaliation claim,
an inmate must establish (1) that the speech or conduct
at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there
was a causal connection between the protected [con-
duct] and the adverse action. . . . An inmate bears the
burden of showing that the protected conduct was a
substantial or motivating factor in the prison officials’
disciplinary decision. . . . The defendant official then
bears the burden of establishing that the disciplinary
action would have occurred even absent the retaliatory
motivation, which he may satisfy by showing that the
inmate committed the . . . prohibited conduct
charged in the misbehavior report.’’ (Citations omitted;
internal quotation marks omitted.) Holland v. Goord,
758 F.3d 215, 225–26 (2d Cir. 2014).
‘‘The Second Circuit has ‘approach[ed] prisoner
claims of retaliation with skepticism and particular
care,’ noting that such claims are ‘easily fabricated’
and that ‘virtually any adverse action taken against a
prisoner by a prison official—even those otherwise not
rising to the level of a constitutional violation—can be
characterized as a constitutionally proscribed retalia-
tory act.’ Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.
2001). ‘Because claims of retaliation are easily fabri-
cated, the courts . . . require that they be supported
by specific facts; conclusory statements are not suffi-
cient.’ ’’ Lockhart v. Semple, Docket No. 3:18-cv-1497
(JCH), 2018 WL 5828298, *4 (D. Conn. November 7,
2018).
The complaint in the present case alleges that the
defendant retaliated for the plaintiff’s prior claims
against other department officials. To that end, the
plaintiff’s speech was protected, and, therefore, his alle-
gations satisfy the first element necessary to sustain a
claim of first amendment retaliation. Furthermore, the
defendant’s rejection of the plaintiff’s application for
employment in the commissary constitutes an adverse
action against the plaintiff. The defendant argues, how-
ever, that the undisputed evidence shows that the deci-
sion not to hire him to work in the commissary was not
causally connected to his prior grievances. In support
of his argument, the defendant submitted to the trial
court his affidavit, documents relating to the plaintiff’s
prior work history at the commissary, and the MacDou-
gall hiring policy. This evidence showed that (1) the
plaintiff’s prior employment in the commissary was ter-
minated on May 8, 2006, because of a disciplinary report
and a poor work report, and (2) the MacDougall hiring
policy, revised as of February 27, 2010, and in effect at
the time the plaintiff’s application for employment was
rejected, explicitly provided that an inmate must meet
several conditions prior to being classified to work in
the commissary, including not having been previously
terminated from a commissary position.
Because the defendant submitted evidence that, if
unrebutted, would have entitled him to summary judg-
ment as a matter of law, the plaintiff had the burden
to produce some evidence that created a genuine issue
of material fact that the refusal to hire him in the com-
missary was the result of retaliation by the defendant for
the plaintiff’s earlier grievances, complaints, or lawsuits
against other department employees. See Bruno v.
Whipple, 162 Conn. App. 186, 213–14, 130 A.3d 899
(2015) (‘‘Although the party seeking summary judgment
has the burden of showing the nonexistence of any
material fact . . . a party opposing summary judgment
must substantiate its adverse claim by showing that
there is a genuine issue of material fact together with
the evidence disclosing the existence of such an issue.
. . . It is not enough . . . for the opposing party
merely to assert the existence of such a disputed issue.
. . . Mere assertions of fact, whether contained in a
complaint or in a brief, are insufficient to establish the
existence of a material fact and, therefore, cannot refute
evidence properly presented to the court [in support
of a motion for summary judgment].’’ (Emphasis in orig-
inal; internal quotation marks omitted.)), cert. denied,
321 Conn. 901, 138 A.3d 280 (2016). The plaintiff failed
to produce any such evidence.
First, he produced no evidence disputing his termina-
tion from the commissary in 2006. Second, he produced
no evidence disputing the existence and applicability
of the MacDougall hiring policy. Third, he produced no
evidence that the defendant had any role in the adoption
of the policy. Fourth, he failed to produce any evidence
that the policy was not applied in a consistent fashion
to all inmates. Consequently, the plaintiff has failed to
submit any evidence to create a genuine issue of mate-
rial fact that there was a causal connection between
his protected first amendment activity and the adverse
employment action. See, e.g., Everitt v. DeMarco, 704
F. Supp. 2d 122, 132 (D. Conn. 2010) (‘‘[i]n order to
survive a motion for summary judgment on a [f]irst
[a]mendment retaliation claim, a plaintiff must bring
forth evidence showing that he was engaged in pro-
tected [f]irst [a]mendment activity, he suffered an
adverse employment action, and there was a causal
connection between the protected [f]irst [a]mendment
activity and the adverse employment action’’ (internal
quotation marks omitted)). Consequently, the defen-
dant was entitled to summary judgment on the first
count of the plaintiff’s complaint.
B
The following legal principles are relevant to our
resolution of the plaintiff’s discrimination claim in the
second count of his complaint. ‘‘Although inmates have
no right to a particular job assignment while they are
incarcerated . . . prison officials cannot discriminate
against an inmate by making a job assignment on the
basis of race. . . . Proof of discriminatory racial pur-
pose is required to establish an equal protection viola-
tion; an official act is not unconstitutional solely
because it has a racially disproportionate impact.’’
(Citations omitted; internal quotation marks omitted.)
Williams v. Federal Bureau of Prisons & Parole Com-
mission, 85 Fed. Appx. 299, 305 (3d Cir. 2004).
‘‘It is well established that [p]roof of a racially dis-
criminatory intent or purpose is required to show a
violation of the [e]qual [p]rotection [c]lause. . . .
Therefore, a plaintiff pursuing a claimed . . . denial
of equal protection under § 1983 must show that the
discrimination was intentional. . . .
‘‘It is true that we have previously observed that
[m]ost of the core substantive standards that apply to
claims of discriminatory conduct in violation of Title
VII [of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq.] are also applicable to claims of discrimination
in employment in violation of . . . the [e]qual [p]rotec-
tion [c]lause. . . . But each of those occasions
involved individual claims of discrimination, and in
each we apply either the [framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973) (McDonnell Douglas)] or a
hostile work environment analysis. . . .
‘‘Under the McDonnell Douglas framework, a plaintiff
establishes a prima facie case of intentional discrimina-
tion by showing that (1) he is a member of a protected
class; (2) he was qualified for the position he held; (3)
he suffered an adverse employment action; and (4) the
adverse action took place under circumstances giving
rise to [an] inference of discrimination. . . . If the
plaintiff establishes a prima facie case of discrimina-
tion, the burden shifts to the employer to come forward
with a legitimate, nondiscriminatory reason for the
adverse employment action. . . . If the employer does
so, the burden then returns to the plaintiff to demon-
strate that race was the real reason for the employer’s
adverse action. . . . Importantly, [t]he ultimate burden
of persuading the trier of fact that the defendant inten-
tionally discriminated against the plaintiff remains at
all times with the plaintiff.’’ (Citations omitted; internal
quotation marks omitted.) Reynolds v. Barrett, 685 F.3d
193, 201–203 (2d Cir. 2012).
As set forth previously in this opinion, the defendant,
in support of his motion for summary judgment, submit-
ted evidence that the plaintiff’s application to work in
the commissary was rejected because he previously
had been terminated from working in the commissary
and that the MacDougall hiring policy disqualified any
inmate who previously had been terminated from being
rehired in the commissary. Also, as previously noted,
the plaintiff submitted no evidence contesting these
basic facts. Furthermore, the plaintiff submitted no evi-
dence to the trial court to support any inference that he
was the victim of discrimination. Consequently, despite
proffering evidence that tended to show that he is a
member of a protected class, qualified for the position,
and was subject to an adverse employment action, the
plaintiff failed to produce any evidence that would give
rise to an inference that he was the victim of discrimina-
tion. Indeed, the plaintiff alleged, and the defendant
does not dispute, that he is a member of a protected
class because he is of Hispanic origin. The plaintiff,
through the exemplary performance evaluations that
he had received while he was employed as a commis-
sary line worker, also established that he was qualified
for the position at issue. Furthermore, the plaintiff
established that he suffered an adverse employment
action, namely, the inability to obtain employment in
the commissary. Where the plaintiff’s claim falls short,
however, is in his failure to establish that the adverse
employment action complained of occurred under cir-
cumstances giving rise to an inference of discrimina-
tion. Although numerous courts have described the bur-
den of establishing a prima facie case of discrimination
under McDonnell Douglas as ‘‘minimal’’; Walsh v. New
York City Housing Authority, 828 F.3d 70, 75 (2d Cir.
2016); bald allegations of intentional discrimination are
not sufficient to meet that burden. See Cohen v. Federal
Express Corp., 383 Fed. Appx. 88, 89 (2d Cir. 2010)
(concluding that trial court properly rendered summary
judgment because plaintiff offered only conclusory alle-
gations in support of prima facie case of discrimination
under McDonnell Douglas framework), cert. denied,
565 U.S. 930, 132 S. Ct. 369, 181 L. Ed. 2d (2011). Conse-
quently, ‘‘a [trier of fact] cannot infer discrimination
from thin air.’’ Norton v. Sam’s Club, 145 F.3d 114, 119
(2d Cir.), cert. denied, 525 U.S. 1001, 119 S. Ct. 511, 142
L. Ed. 2d 124 (1998).
At no point did the plaintiff offer any evidence, direct
or circumstantial, that established an inference of dis-
crimination underlying the defendant’s rejection of the
plaintiff’s application for employment in the commis-
sary. We cannot infer from the plaintiff’s allegations
of discrimination alone that the defendant acted with
discriminatory intent.
Even if we were to conclude that the plaintiff estab-
lished a prima facie case of discrimination under the
McDonnell Douglas framework, the defendant has met
his burden of articulating a legitimate, nondiscrimina-
tory reason for the denial of the plaintiff’s application,
namely, the MacDougall hiring policy. As stated pre-
viously in this opinion, the MacDougall hiring policy
provided in relevant part: ‘‘In order to be eligible to be
classified to a position in the MacDougall . . . commis-
sary each inmate must meet the conditions stated
below. Prior to being classified the inmate must . . .
[h]ave not been previously terminated from a commis-
sary position . . . .’’ The plaintiff’s prior termination
from his job as a commissary line worker on May 8,
2006, foreclosed any possibility of future employment
in the commissary pursuant to the MacDougall policy.
Thus, the defendant established a legitimate, nondis-
criminatory reason for the denial of the plaintiff’s appli-
cation. Consequently, the plaintiff was required to prof-
fer some evidence that the defendant’s justification for
his hiring decision was a pretext for racial animus.
In his memorandum of law in opposition to the defen-
dant’s motion for summary judgment, the plaintiff
essentially asked the court to infer that racial discrimi-
nation motivated the defendant’s alleged employment
decision because ‘‘what other reasons [would] the
[defendant] . . . have to mess with the plaintiff and
have him moved to other units when he was still classi-
fied to work for the defendant . . . ?’’ Given evidence
of the nondiscriminatory reason proffered by the defen-
dant, in order to conclude, as the plaintiff’s question
suggests, that discrimination is the only logical reason
for his not being hired, we would have to ‘‘infer discrimi-
nation from thin air’’; Norton v. Sam’s Club, supra, 145
F.3d 119; which is an analytical leap the court cannot
and will not make. Consequently, the plaintiff failed to
demonstrate the existence of a genuine issue of material
fact as to the defendant’s discriminatory intent, and,
accordingly, his discrimination claim fails as a matter
of law.11
III
In his final claim, the plaintiff argues that the court
erred by rendering summary judgment in favor of the
defendant on the third count of his complaint, which
asserted a claim under the takings clause of the fifth
amendment to the United States constitution. In its
memorandum of decision, the court did not address
the merits of the plaintiff’s takings claim but, instead,
relied on the plaintiff’s failure to exhaust administrative
remedies as the basis for granting the defendant’s
motion for summary judgment. We agree that summary
judgment was appropriate, albeit for a different reason.
‘‘The [t]akings [c]lause of the [f]ifth [a]mendment
provides that no private property shall be taken for
public use, without just compensation. . . . The [t]ak-
ings [c]lause applies against [s]tate actors through the
[f]ourteenth [a]mendment. . . . To state a claim under
. . . the [t]akings [c]lause, plaintiffs [a]re required to
allege facts showing that state action deprived them
of a protected property interest.’’ (Citations omitted;
internal quotation marks omitted.) Abrahams v. Dept.
of Social Services, Docket No. 3:16-CV-00552 (CSH),
2018 WL 995106, *9 (D. Conn. February 21, 2018).12
‘‘A fundamental tenet in our law is that the plaintiff’s
complaint defines the dimensions of the issues to be
litigated. [T]he right of a plaintiff to recover is limited
to the allegations of [his] complaint. . . . The purpose
of the complaint is to limit the issues to be decided at
the trial of a case and is calculated to prevent [surprise.
. . . A] plaintiff may not allege one cause of action
and recover upon another.’’ (Internal quotation marks
omitted.) Mamudovski v. BIC Corp., 78 Conn. App. 715,
732, 829 A.2d 47 (2003), appeal dismissed, 271 Conn.
297, 857 A.2d 328 (2004).
In the third count of his complaint, the plaintiff
alleged that the policy at MacDougall is to deny employ-
ment to immigrants or citizens without Social Security
numbers because the department cannot collect the
interest accrued on commissary earnings in such
inmates’ trust accounts. To that end, the plaintiff
asserted that ‘‘[t]his can be another obstacle the [defen-
dant] [is] using . . . to discriminate [against] the plain-
tiff . . . .’’ In his memorandum of law in support of his
motion for summary judgment, the defendant argued
that ‘‘[i]t is unclear how refusing to hire the plaintiff
for a commissary job constitutes a taking. In any event,
an inmate does not have a constitutionally protected
right to a job.’’ In response, the plaintiff asserted that
‘‘at no time . . . [did] the plaintiff . . . state in his
complaint [that] not hiring the plaintiff constitute[d] a
taking . . . .’’ The plaintiff argued further that, con-
trary to the defendant’s characterization, his takings
claim arose out of the defendant’s appropriation of the
interest on moneys in his inmate trust account.
Having viewed the evidence in the light most favor-
able to the plaintiff, we conclude that the plaintiff’s
takings claim fails as a matter of law. As stated pre-
viously in this opinion, the plaintiff’s right to recover
is limited to the allegations as set forth in his complaint.
See, e.g., Mamudovski v. BIC Corp., supra, 78 Conn.
App. 732. Short of his allegation that inmates are denied
employment in the commissary for not having a Social
Security number, the plaintiff neither alleged nor sub-
mitted any evidence regarding an appropriation of his
property. Nor did he bring forth any evidence of an
unconstitutional taking by the defendant. Consequently,
the lack of evidence proffered by the plaintiff in support
of his takings claim, coupled with the plaintiff’s failure
to establish the existence of a genuine issue of material
fact regarding the defendant’s role, if any, in any alleged
unconstitutional taking of which the plaintiff com-
plains, leads us to conclude that the plaintiff’s takings
claim fails as a matter of law.
The form of the judgment is improper, the judgment
is reversed only as to the dismissal of the plaintiff’s
claims in the first and second counts for monetary relief
against the defendant in his individual capacity, and
the case is remanded with direction to render summary
judgment for the defendant on those counts; the judg-
ment is affirmed in all other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In his complaint, the plaintiff also named as a defendant Steven Plourde,
the fiscal administrative supervisor for commissary administration for the
Department of Correction. Plourde was sued in his individual and official
capacities. At oral argument on the defendant’s motion for summary judg-
ment, however, the plaintiff withdrew all counts against Plourde. Accord-
ingly, we refer to Robinson as the defendant.
2
We need not address in detail the trial court’s determination that those
counts brought against the defendant in his official capacity are barred
because he failed to exhaust his administrative remedies. First, we do not
need to address the issue of exhaustion because failure to meet the require-
ments of the Prison Litigation Reform Act, 42 U.S.C. § 1997e et seq., on
which the defendant and the trial court relied, does not implicate the court’s
subject matter jurisdiction. See Johnson v. Rell, 119 Conn. App. 730, 734
n.4, 990 A.2d 354 (2010) (‘‘we remind counsel that a prisoner’s alleged failure
to exhaust administrative remedies properly is the focus of a motion to
strike rather than a motion to dismiss, as it does not implicate the subject
matter jurisdiction of the court’’); see also Richardson v. Goord, 347 F.3d
431, 434 (2d Cir. 2003) (‘‘Numerous circuits have pointed out that § [1997e]
lacks the sweeping and direct language that would indicate a jurisdictional
bar rather than a mere codification of administrative exhaustion require-
ments. . . . We are persuaded by the reasoning of these cases and we
likewise conclude that exhaustion is not jurisdictional.’’ (Citations omitted;
internal quotation marks omitted.)).
Second, the court’s conclusion that it lacked subject matter jurisdiction
to consider the plaintiff’s damages claim against the state because he did
not first obtain permission to sue from the Claims Commissioner miscon-
strues the claim as seeking damages against the state as opposed to against
the defendant in his individual capacity. See footnote 8 of this opinion.
Because the plaintiff is seeking damages against the defendant only in his
individual capacity, the need to obtain permission to sue from the Claims
Commissioner is not implicated. Furthermore, we note that the defendant
did not rely on the exhaustion argument in his appellate brief.
3
At MacDougall, each housing unit is designated by a different letter.
4
In addition to the federal constitutional claims in his complaint, the
plaintiff purported to allege state claims pursuant to article first, §§ 1, 4, 10
and 20, of the Connecticut constitution. The plaintiff, however, failed to
provide a separate analysis for his state constitutional claims—as required
under State v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992)—and,
consequently, we decline to review them. See State v. Kiser, 43 Conn. App.
339, 353–54, 683 A.2d 1021 (declining to review defendant’s state constitu-
tional claim because she failed to provide analysis separate from her federal
constitutional claim), cert. denied, 239 Conn. 945, 686 A.2d 122 (1996); see
also State v. Stanley, 161 Conn. App. 10, 23 n.13, 125 A.3d 1078 (2015)
(same), cert. denied, 320 Conn. 918, 131 A.3d 1154 (2016). Thus, our appellate
review is limited to the plaintiff’s § 1983 claims that his federal constitutional
rights were violated.
5
Specifically, the plaintiff alleged that he filed two claims with the Com-
mission on Human Rights and Opportunities; see Sosa v. Dept. of Correction,
CHRO No. 0810091; Sosa v. Dept. of Correction, CHRO No. 1310363; as well
as a claim in the Superior Court. See Sosa v. Foltz, Superior Court, judicial
district of New London, Docket No. CV-XX-XXXXXXX-S (June 4, 2013), appeal
dismissed, Docket No. AC 35831 (Conn. App. September 10, 2013).
6
Although the court noted that the defendant was being sued in his official
and individual capacities, its memorandum of decision determined only
that the court lacked ‘‘subject matter jurisdiction in this matter against the
defendant in his individual capacity’’ and dismissed only ‘‘the action brought
against the defendant in his individual capacity . . . .’’ The plaintiff’s memo-
randum of law in opposition to the defendant’s motion for summary judg-
ment and his appellate brief make clear that the plaintiff concedes that he
seeks money damages against the defendant solely in his individual capacity.
7
To overcome a bar of sovereign immunity under state law, a plaintiff,
through the allegations in his complaint, must establish that any one of the
three recognized exceptions to sovereign immunity apply to his claim. Carter
v. Watson, 181 Conn. App. 637, 642, 187 A.3d 478 (2018). The three exceptions
to sovereign immunity are: ‘‘(1) when the legislature, either expressly or by
force of a necessary implication, statutorily waives the state’s sovereign
immunity . . . (2) when an action seeks declaratory or injunctive relief on
the basis of a substantial claim that the state or one of its officers has
violated the plaintiff’s constitutional rights . . . and (3) when an action
seeks declaratory or injunctive relief on the basis of a substantial allegation
of wrongful conduct to promote an illegal purpose in excess of the officer’s
statutory authority.’’ (Internal quotation marks omitted.) Id.
8
To determine whether an action is against the state or against an officer
in his individual capacity, our Supreme Court in Somers established four
criteria that, if met, render it an action against the state and, therefore,
subject to a bar under sovereign immunity. The criteria are: ‘‘(1) a state
official has been sued; (2) the suit concerns some matter in which that
official represents the state; (3) the state is the real party against whom
relief is sought; and (4) the judgment, though nominally against the official,
will operate to control the activities of the state or subject it to liability.’’
(Internal quotation marks omitted.) Kenney v. Weaver, 123 Conn. App. 211,
216, 1 A.3d 1083 (2010).
9
It is perplexing to us that the Office of the Attorney General relies
on Somers and Spring and ignores Sullins. In fact, the appellee’s brief
inexplicably does not mention Sullins. The failure to discuss this controlling
precedent is all the more surprising given that the attorney general not only
represents the defendant in this case but also represented the defendant
in Sullins.
10
We note that, although the court had jurisdiction to consider the plain-
tiff’s individual capacity claims against the defendant, it could not have
granted the declaratory relief the plaintiff sought. ‘‘Under the doctrine of
Ex parte Young, 209 U.S. 123, [28 S. Ct. 441, 52 L. Ed. 714] (1908), a plaintiff
may seek prospective injunctive and declaratory relief to address an ongo-
ing or continuing violation of federal law or an imminent threat of a future
violation of federal law. . . . In determining whether Ex [p]arte Young
applies, a court need only conduct a straightforward inquiry into whether
the complaint alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) Baltas v. Erfe, Docket No. 3:19-cv-1820
(MPS), 2020 WL 1915017, *11 (D. Conn. 2020).
Because the plaintiff’s claims for declaratory relief request that the court
declare that the defendant’s past conduct and policies were unconstitutional,
the relief sought is retrospective and, therefore, is barred by sovereign
immunity. See Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy,
Inc., 506 U.S. 139, 146, 113 S. Ct. 684, 121 L. Ed. 2d 205 (1993) (‘‘The doctrine
of Ex parte Young, which ensures that state officials do not employ the
[e]leventh [a]mendment as a means of avoiding compliance with federal law,
is regarded as carving out a necessary exception to [e]leventh [a]mendment
immunity. . . . Moreover, the exception is narrow: [i]t applies only to pro-
spective relief, [it] does not permit judgments against state officers declar-
ing that they violated federal law in the past . . . .’’ (Citations omitted;
emphasis added.)).
By contrast, because the plaintiff’s request for injunctive relief sought
prospective relief, the court could have awarded such relief against the
defendant. ‘‘[A] state official in his or her official capacity, when sued for
injunctive relief, would be a person under § 1983 because official-capacity
actions for prospective relief are not treated as actions against the [s]tate.’’
(Emphasis added; internal quotation marks omitted.) Will v. Michigan Dept.
of State Police, 491 U.S. 58, 71 n.10, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989).
11
We also note that the plaintiff, both in his memorandum of law in
opposition to the defendant’s motion for summary judgment and in his
appellate brief, asserts his equal protection claim under a ‘‘class-of-one’’
theory.
‘‘A class-of-one claim exists where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated and that there
is no rational basis for the difference in treatment. . . . We have held that
to succeed on a class-of-one claim, a plaintiff must establish that: (i) no
rational person could regard the circumstances of the plaintiff to differ from
those of a comparator to a degree that would justify the differential treatment
on the basis of a legitimate government policy; and (ii) the similarity in
circumstances and difference in treatment are sufficient to exclude the
possibility that the defendants acted on the basis of a mistake.’’ (Citation
omitted; internal quotation marks omitted.) Analytical Diagnostic Labs,
Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010), cert. denied, 563 U.S. 1033,
131 S. Ct. 2970, 180 L. Ed. 2d 247 (2011).
As with the plaintiff’s claim under the McDonnell Douglas framework,
the MacDougall hiring policy that disqualified him from employment in the
commissary, coupled with his failure to proffer any evidence in support of
his allegations of discrimination, render his claim under a class of one
theory meritless.
12
We note that sovereign immunity is not a defense to a properly pleaded
takings claim under the United States constitution. See also 184 Windsor
Avenue, LLC v. State, 274 Conn. 302, 319, 875 A.2d 498 (2005) (sovereign
immunity is not available as defense to takings clause under state consti-
tution).