329 F.Supp.2d 311 (2004) | Cited 6 times | D. Connecticut | August 4, 2004


Pending before the Court are three applications for prejudgmentremedy filed by Plaintiff and two motions to dismiss filed byDefendant. The Court will address each in turn.

I. Motions for Applications for Prejudgment Remedy [docs. ##74, 76]

Plaintiff has filed two essentially identical motions seeking aprejudgment remedy in the amount of $1,250,000.00 againstDefendant pursuant to Rule 64 of the Federal Rules of CivilProcedure and Connecticut General Statutes § 52-278a.Rule 64 permits a plaintiff in federal court to utilize available stateprejudgment remedies to secure a judgment that might ultimatelybe rendered in an action and provides, in pertinent part: At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought. . . .Fed.R.Civ.P. 64.

Connecticut General Statutes § 52-278a et seq. governsprejudgment remedies and "provides that a plaintiff suing for a money judgment may attacha defendant's real or personal property during litigation, if theplaintiff follows the statutory procedures designed to protectthe defendant." Cordoba Shipping Co., Ltd. v. Maro Shipping,Ltd., 494 F. Supp. 183, 186 (D. Conn. 1980). Connecticut GeneralStatutes § 52-278c sets forth the required documents to be filedwith the court and the requirements of service on the defendantof notice of intent to secure a prejudgment remedy. A prejudgmentremedy may be obtained when the plaintiff establishes that thereis probable cause to sustain the validity of his claims. SeeConn. Gen. Stat. § 52-278d. "`It is not necessary for [aplaintiff movant] to prove [its] case by a fair preponderance ofthe evidence at the probable cause stage.' Nor does the movanthave to establish that it will prevail, but only that there isprobable cause to sustain its claim." Dean v. Priceline.com,Inc., No. 3:00cv1273(DJS), 2001 U.S. Dist. LEXIS 24988 (D.Conn., 2001) (quoting DSP Software Engineering, Inc. v. NCTGroup, Inc., CV 000370062S, 2000 Conn. Super. LEXIS 2171, *8(Conn. Super. August 14, 2000)).

Connecticut General Statutes § 52-278b provides that "noprejudgment remedy shall be available to a person in any actionat law or in equity (1) unless he has complied with theprovisions of sections 52-278a to 52-278g inclusive. . . ."Connecticut General Statutes § 52-278c requires that an affidavitbe submitted with the application for prejudgment remedy. SeeConn. Gen. Stat. § 52-278c(a)(2); Lauf v. James,33 Conn. App. 223, 227-29 (Conn. App. Ct. 1993) (holding that section52-278c(a) requires that an affidavit be submitted with anapplication for prejudgment remedy in order for the trial courtto grant a prejudgment remedy). The affidavit must be "sworn toby the plaintiff or any competent affiant setting forth astatement of facts sufficient to show that there is probable cause that a judgmentin the amount of the prejudgment remedy sought . . . will berendered in the matter in favor of the plaintiff." Conn. Gen.Stat. § 52-278c(a)(2).

Here, Plaintiff has not submitted an affidavit with eithermotion, let alone an affidavit that sets forth facts sufficientto demonstrate that there is probable cause that a judgment willenter in favor of Plaintiff in the amount of the remedy sought,as required § 52-278c(a)(2). Instead, Plaintiff simply statesthat there is probable cause that a judgment will be rendered inhis favor. Plaintiff has thus failed to comply with ConnecticutGeneral Statutes § 52-278c(a)(2).

In addition, Connecticut General Statutes § 52-278c requiresthat a notice and claim form containing specific language beattached to the application for prejudgment remedy. See Conn.Gen. Stat. § 52-278c(e), (f), and (g). Plaintiff has failed toattach the appropriate notice and claim form to his applicationsfor prejudgment remedy. Because Plaintiff's motions forapplications for prejudgment remedy do not comply withsubsections (a)(2), (e), (f), and (g) of Connecticut GeneralStatutes § 52-278c, the motions are denied.

II. Application for Prejudgment Remedy [doc. # 84]

Plaintiff seeks a prejudgment remedy in the amount of$1,250,000.00 against the Defendant. He attaches a declaration tohis motion, which indicates that exhibits O, J, Z, W, M, N, aJuly 17, 2002 letter from the Inmates' Legal Assistance Program,medical files, and side effects demonstrate that he is entitledto relief. However, none of those exhibits is attached to theapplication for prejudgment remedy or the declaration.

In addition, it is evident from Defendant's memorandum inopposition to the application for prejudgment remedy that Plaintiff did not send counsel a copyof the application that he filed with the Court. See doc. # 88.Furthermore, the copy of the application sent to counsel is notsigned, is in different handwriting than the application filedwith the Court, and is not identical to the application filedwith the Court. In particular, page five of the copy of theapplication fails to include sections D) through I).

Because the application fails to include the referencedexhibits and the copy sent to counsel for Defendant is not a copyof the application filed with the Court and does not include thenotice language required by Connecticut General Statutes §52-278c(e), (f), and (g), Plaintiff's application for prejudgmentremedy [# 84] is denied.

The Court informs Plaintiff that pursuant to Rule 5 of theFederal Rules of Civil Procedure and Rule 5(b) of the District ofConnecticut Local Rules of Civil Procedure, he must serve a copyof every motion, memorandum, or other paper that he files in thiscase, as well as discovery requests that he need not file withthe Court, on counsel for Defendant. He must also attach acertificate of service to the motion, memorandum, or other paperindicating that he did mail a copy of the document to counsel forDefendant. Plaintiff need only file the original signed motion,memoranda, or other paper with the court. Plaintiff need not fileextra copies with the original.

The Court cautions Plaintiff that failure to serve identicalcopies of the motions and other documents that he files with theCourt on counsel for Defendant will result in sanctions. Thosesanctions may include dismissal of this case. III. Motion to Dismiss or for Costs or Sanctions [doc. # 67]

Counsel for Defendant seeks sanctions against Plaintiff,including dismissal of this case, for Plaintiff's failure toparticipate in his deposition on December 11, 2003. Defendant'scounsel asserts that when he and the court reporter arrived toconduct the deposition, Plaintiff handed him an unsigned,uncertified, handwritten motion for reconsideration of theCourt's ruling granting Defendant's motion to depose Plaintiff.Counsel contends that Plaintiff did not file his motion forreconsideration with the Court until after the date of thedeposition and that the copy of the motion Plaintiff showed himat the deposition was different than the motion Plaintiff filedwith the Court. Counsel did not receive a copy of the motionPlaintiff filed with the Court until December 16, 2003. Counselalso argues that Plaintiff failed to file a motion for protectiveorder after the Court granted the motion to depose him.

Plaintiff contends that he filed his motion for reconsiderationon November 24, 2003, and mailed a copy of the motion to counselfor Defendant. The Court's file reflects that a motion forreconsideration dated November 24, 2003 was originally receivedby the Court on December 17, 2003, but was returned to Plaintiffbecause it lacked an original signature. Plaintiff refiled themotion on January 14, 2004. See doc. # 72. The motion includesa certification that Plaintiff mailed a copy of the motion tocounsel for Defendant on November 24, 2003. Although it isunclear when Plaintiff initially mailed his motion forreconsideration to the Court, it is evident that he drafted hismotion for reconsideration prior to the date of the deposition.As a pro se litigant, Plaintiff may have been unaware that hecould file a motion for protective order concerning thecourt-ordered deposition. In addition, Plaintiff notes that Defendant's counsel's motionfor leave to depose him stated that the deposition wastentatively scheduled for November 14, 2003. Plaintiff claimsthat he was unaware that he was to be deposed on December 11,2003, because counsel did not notify him of the new date.Plaintiff argues that he believed that he did not have to submitto the deposition until the Court ruled on his motion forreconsideration.

Because Plaintiff proceeds pro se in this matter and wasunder the mistaken impression that he need not submit to thedeposition because he disagreed with the Court's ruling and hadattempted to file a motion for reconsideration of the rulingprior to the deposition, the Court denies the motion forsanctions without prejudice to renewal.

In another ruling filed in this case, the Court has consideredPlaintiff's motion for reconsideration and after carefulreconsideration has affirmed its ruling granting the motion todepose the plaintiff. See doc. # 101. The Court has directedcounsel for Defendant to re-notice the deposition of Plaintiff.Plaintiff is directed to fully participate in the deposition onthe date and time it is scheduled to be conducted.

The Second Circuit has held that "all litigants, including proses, have an obligation to comply with court orders." McDonaldv. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2dCir. 1988). Even if the order is later shown to be erroneous, thepro se litigants must obey the order pending appeal. "When theyflout that obligation they, like all litigants, must suffer theconsequences of their actions." Id.

Plaintiff is cautioned that if he fails to attend andparticipate fully in the deposition, his case may be dismissed.Defendant may renew its motion to dismiss if Plaintiff fails to attend and participate in the deposition.

IV. Motion to Dismiss Amended Complaint [doc. # 58]

Defendant moves to dismiss Plaintiff's claims brought pursuantto 42 U.S.C. § 1983, 1985, and 1986. For the reasons set forthbelow, Defendant's motion is granted.

On June 23, 2003, the Court granted Defendant's motion todismiss Plaintiff's Eighth Amendment claims brought pursuant to42 U.S.C. § 1983. See doc. # 20. The Court concluded that thecase would proceed on Plaintiff's state law claims pursuant tothe Court's diversity jurisdiction under 28 U.S.C. § 1331(a)(1).

On June 25, 2003, Plaintiff filed an amended complaint inopposition to Defendant's motion to dismiss. The amendedcomplaint [doc. # 21] is dated June 1, 2003, but was not receivedby the Court until June 25, 2003, after the Court's ruling on themotion to dismiss.

The amended complaint names Secure Pharmacy Plus as the onlydefendant. The amended complaint includes legal arguments andcitations to case law, but very few facts and no exhibits.Plaintiff filed the amended complaint pursuant to42 U.S.C. § 1983, 1985, and 1986. Defendant moves to dismiss the § 1983claims for the reasons set forth in the Court's ruling grantingthe motion to dismiss the same claims in the complaint. Defendantalso moves to dismiss the §§ 1985 and 1986 claims for failure tostate a claim upon which relief may be granted.

The facts in the amended complaint are as follows:

On December 13, 2001, Plaintiff went to see the prisonpsychiatrist concerning his prescription for Paxil. Plaintiffclaimed that the Paxil capsule that the pharmacy had originally provided him with had been pink, but that he was now getting agreen capsule. Plaintiff complained that he was experiencingdizziness, nausea, diarrhea, muscle tightness, trembling in hishands and body, and vomiting.

On December 26, 2001, a nurse examined Plaintiff, who hadcomplained that he was not feeling well. The nurse informedPlaintiff that the medical department had received a memorandumfrom Defendant indicating that it had mistakenly sent the prisona drug called Risperdal in the blister packs labeled Paxil.Plaintiff stated that he no longer wanted to take Paxil andrequested an appointment to see the psychiatrist to change hismedication.

On January 24, 2002, Plaintiff informed the psychiatrist thathe no longer wanted to take Paxil. That day, the psychiatristchanged Plaintiff's medication to Remeron. Plaintiff seeks onemillion dollars in compensatory damages, one million dollars inpunitive damages, and declaratory relief from Secure Pharmacy.

In the prior ruling granting Defendant's motion to dismiss theEighth Amendment claims, the Court concluded that Plaintiff hadfailed to allege facts to state a claim that Defendant had beendeliberately indifferent to his serious medical needs. Plaintiffhas set forth no new facts demonstrating that Secure Pharmacyacted with a "culpable state of mind" when it incorrectly labeledthe medication given to Plaintiff by prison medical staff.Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).Accordingly, the motion to dismiss Plaintiff's § 1983 claim underthe Eighth Amendment as set forth in the amended complaint isgranted.

In addition to the § 1983 claims, Plaintiff states that hefiles his amended complaint pursuant to 42 U.S.C. § 1985(3) and1986. Plaintiff alleges that Defendant "conspire[d] as a hired agency as an independent contractor by a third party toprovide prescription services to prisoner . . ." Amend. Compl. at6.Plaintiff's allegations fail to comport with the requirementsof 42 U.S.C. § 1985(3).

Section 1985 prohibits conspiracies to interfere with civilrights. Generally, § 1985(3) prohibits conspiracies to deprivepersons of equal protection of the laws. "To state a cause ofaction under § 1985(3), a plaintiff must allege (1) a conspiracy(2) for the purpose of depriving a person or class of persons ofthe equal protection of the laws, or the equal privileges andimmunities under the laws; (3) an overt act in furtherance of theconspiracy; and (4) an injury to the plaintiff's person orproperty, or a deprivation of a right or privilege of a citizenof the United States." Thomas v. Roach, 165 F.3d 137, 146 (2dCir. 1999) "Furthermore, the conspiracy must also be motivated bysome racial or perhaps otherwise class-based, invidiousdiscriminatory animus behind the conspirators' action." Id.(internal quotes omitted). Section 1985(3) may not be construedas a "general federal tort law"; it does not provide a cause ofaction based on the denial of due process or other constitutionalrights. Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971).

Here, Plaintiff alleges no facts in the amended complaint fromwhich racial motivation for the alleged conspiracy to provide himwith improper prescription services may be found or inferred.Because Plaintiff fails to provide a factual basis for aconspiracy claim, Defendant's motion to dismiss Plaintiff'ssection 1985 claims is granted.

Under 42 U.S.C. § 1986, liability is imposed on an individualwho has knowledge of wrongs prohibited under 42 U.S.C. § 1985,but fails to prevent them. Without a violation of § 1985,however, there can be no violation of § 1986. See Mian v.Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (holdingthat "a § 1986 claim must be predicated on a valid § 1985claim"). As stated above, Plaintiff has failed to allege afactual basis for a § 1985 claim. Because a claim under42 U.S.C. § 1986 is contingent on a valid claim under 42 U.S.C. § 1985,Plaintiff's claims under 42 U.S.C. § 1986 must also be dismissed.


Plaintiff's Applications for Prejudgment Remedy [docs. ## 74,76] are DENIED for failure to comply with subsections (a)(2),(e), (f), and (g) of Connecticut General Statutes § 52-278c. TheApplication for Prejudgment Remedy [doc. # 84] is DENIED forfailure to include the referenced exhibits and because the copysent to counsel for Defendant is not a copy of the applicationfiled with the Court and does not include the notice languagerequired by Conn. Gen. Stat. Conn. Gen. Stat. § 52-278c(e), (f),and (g).

The Court cautions Plaintiff that failure to serve identicalcopies of the motions and other documents that he files with theCourt on counsel for Defendant will result in sanctions. Thosesanctions may include dismissal of this case.

The Motion to Dismiss or for Costs or Sanctions [doc. # 67]is DENIED without prejudice to renewal. Plaintiff is cautionedthat if he fails to attend and participate fully in thedeposition, his case may be dismissed.

The Motion to Dismiss Amended Complaint [doc. # 58] isGRANTED. Plaintiff's claims under §§ 1983, 1985, and 1986claims are dismissed. The Court retains diversity jurisdictionover all possible state law claims. Liberally construing theallegations in the amended complaint, Plaintiff may state a claimfor negligence, malpractice, and/or products liability. Defendant is directed to file an answer to the amendedcomplaint within twenty days of the date of this order. Allmotions for summary judgment shall be filed on or before October15, 2004.


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