Wright v. Giles

W
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       IAN WRIGHT v. CARLETON GILES ET AL.
                    (AC 42686)
                       Moll, Suarez and DiPentima, Js.

                                   Syllabus

The self-represented, incarcerated plaintiff brought this action against the
   defendants pursuant to federal law (42 U.S.C. § 1983), claiming violations
   of his federal and state constitutional rights. The plaintiff claimed that
   he was entitled to deportation parole or a deportation parole eligibility
   hearing pursuant to statute (§ 54-125d (c)) and, that under 42 U.S.C.
   § 1983, the defendants had violated his rights to due process by failing
   to implement policies, procedures, and/or regulations that provided him
   with a deportation parole hearing and/or with eligibility. The trial court
   dismissed the plaintiff’s complaint on the ground that the defendants
   were protected by sovereign immunity and rendered judgment thereon,
   from which the plaintiff appealed to this court. Held that the judgment
   of the trial court was affirmed on the alternative ground that the plaintiff
   lacked standing; the plaintiff failed to demonstrate that he had a specific,
   personal, or legal interest in deportation parole eligibility as the possibil-
   ity of deportation parole created by § 54-125d does not create a legal
   interest in parole eligibility, and the failure to exercise discretion to
   grant a deportation parole eligibility hearing is not within the zone of
   interests protected by 42 U.S.C. § 1983.
       Argued September 10—officially released November 17, 2020

                             Procedural History

   Action to recover damages for, inter alia, the alleged
deprivation of the plaintiff’s federal constitutional
rights, and for other relief, brought to the Superior Court
in the judicial district of New London, where the court,
Hon. Joseph Q. Koletsky, judge trial referee, granted the
defendants’ motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed to this
court. Affirmed.
   Ian Wright, self-represented, the appellant (plaintiff).
  Janelle R. Medeiros, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Clare E. Kindall, solicitor general, for the
appellees (defendants).
                          Opinion

   DiPENTIMA, J. The plaintiff, Ian Wright, appeals from
the judgment of the trial court granting the motion of
the defendants, Carlton Giles, Richard Sparraco, Scott
Semple, and George Jepsen, to dismiss the action for
lack of subject matter jurisdiction. On appeal, the plain-
tiff claims that the court improperly granted the defen-
dants’ motion to dismiss.1 We disagree and, accordingly,
affirm the judgment of the trial court.
   The record reveals the following facts and procedural
history. As we stated in Wright v. Commissioner of
Correction, 201 Conn. App. , ,             A.3d    (2020):
‘‘The [plaintiff] is a Jamaican national who was con-
victed in 2002, following a jury trial, of murder in viola-
tion of General Statutes § 53a-54a and carrying a pistol
or revolver without a permit in violation of General
Statutes § 29-35. The [plaintiff] was sentenced to a total
effective term of thirty-five years of incarceration,
including a sentence enhancement pursuant to General
Statutes § 53-202k. His conviction was affirmed on
direct appeal. State v. Wright, 

77 Conn. App. 80

, 

822 A.2d 940

, cert. denied, 

266 Conn. 913

, 

833 A.2d 466

(2003). In 2013, the United States Immigration Court
ruled that the [plaintiff] be removed from the United
States to Jamaica.’’
   In March, 2018, the self-represented plaintiff initiated
an action pursuant to 42 U.S.C. § 1983, in which he
alleged that he sent an application to the Board of
Pardons and Paroles requesting a deportation parole
eligibility hearing, but to date has not received such
a hearing. The plaintiff claimed that the defendants
violated his federal and state constitutional rights to
due process by failing to implement policies, proce-
dures and/or regulations providing him with a deporta-
tion parole hearing and/or providing him with eligibility.
He specifically alleged that the mandatory language
‘‘shall’’ used in General Statutes § 54-125d (c) creates
a legitimate expectation in parole to aliens who have
served at least 50 percent of their sentence. On April
16, 2018, the defendants filed a motion to dismiss for
lack of subject matter jurisdiction due to the plaintiff’s
lack of standing and sovereign immunity. In a memoran-
dum of law in support of their motion to dismiss, the
defendants argued that the plaintiff lacked standing
because no mandatory, statutory right to parole exists.
The plaintiff filed an opposition to the motion to dis-
miss. On January 23, 2019, the court issued an order that
read: ‘‘The defendant’s motion to dismiss is granted.’’
In response to a motion for articulation filed by the
plaintiff, on May 22, 2019, the trial court explained its
dismissal as follows: ‘‘The state enjoys sovereign immu-
nity in this case. Calling this case a ‘civil rights action’
does not make that the case. [The plaintiff’s] allegations
that he was being denied a ‘deportation parole hearing
and/or eligibility’ does not rise to that level.’’
   The plaintiff’s principal argument on appeal is that
his claim that due process entitled him to a deportation
parole eligibility hearing pursuant to § 54-125d (c)2 dem-
onstrates a liberty interest in deportation parole eligibil-
ity sufficient to invoke the court’s subject matter juris-
diction. The defendants contend that the plaintiff has no
such liberty interest and argue that the court’s decision
should be affirmed on the alternative ground of lack
of standing.3
  ‘‘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 [alternative] ground for which
there is support in the trial court record.’’ (Internal
quotation marks omitted.) Heisinger v. Cleary, 

323 Conn. 765

, 776 n.12, 

150 A.3d 1136

(2016).
   ‘‘A motion to dismiss tests, inter alia, whether, on
the face of the record, the court is without jurisdiction.
. . . When a . . . court decides a jurisdictional ques-
tion raised by a pretrial motion to dismiss, it must con-
sider the allegations of the complaint in their most
favorable light. . . . In this regard, a court must take
the facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader. . . . The motion to dismiss . . . admits all
facts which are well pleaded, invokes the existing
record and must be decided upon that alone. . . . A
motion to dismiss . . . properly attacks the jurisdic-
tion of the court, essentially asserting that the plaintiff
cannot as a matter of law and fact state a cause of
action that should be heard by the court. . . . The issue
of standing implicates [the] court’s subject matter juris-
diction. . . . If a party is found to lack standing, the
court is without subject matter jurisdiction to hear the
cause. . . . Because standing implicates the court’s
subject matter jurisdiction, the plaintiff ultimately bears
the burden of establishing standing.’’ (Citations omitted;
internal quotation marks omitted.) Manning v. Felt-
man, 

149 Conn. App. 224

, 230–31, 

91 A.3d 466

(2014).
  ‘‘When standing is put in issue, the question is
whether the person whose standing is challenged is a
proper party to request an adjudication of the issue and
not whether the controversy is otherwise justiciable,
or whether, on the merits, the plaintiff has a legally
protected interest that the defendant’s action has
invaded. . . . Standing is established by showing that
the party claiming it is authorized by statute to bring
suit or is classically aggrieved. . . . The fundamental
test for determining aggrievement encompasses a [well
settled] twofold determination: first, the party claiming
aggrievement must successfully demonstrate a specific,
personal and legal interest in [the challenged action],
as distinguished from a general interest, such as is the
concern of all members of the community as a whole.
Second, the party claiming aggrievement must success-
fully establish that this specific personal and legal inter-
est has been specially and injuriously affected by the
[challenged action].’’ (Citations omitted; internal quota-
tion marks omitted.) Steeneck v. University of Bridge-
port, 

235 Conn. 572

, 579, 

668 A.2d 688

(1995).
   ‘‘Aggrievement is established if there is a possibility,
as distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected. . . .
With respect to whether the [plaintiff has] demonstrated
some legally protected interest, we often have stated:
Standing concerns the question [of] whether the interest
sought to be protected by the complainant is arguably
within the zone of interests to be protected or regulated
by the statute or constitutional guarantee in question.
. . . [I]n considering whether a plaintiff’s interest has
been injuriously affected . . . we have looked to
whether the injury he complains of [his aggrievement,
or the adverse effect upon him] falls within the zone
of interests sought to be protected . . . .’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Broadnax v. New Haven, 

270 Conn. 133

, 154–
55, 

851 A.2d 1113

(2004).
   ‘‘An allegation of injury is both fundamental and
essential to a demonstration of standing. Under Con-
necticut law, standing requires no more than a colorable
claim of injury; a plaintiff ordinarily establishes his
standing by allegations of injury. . . . As long as there
is some direct injury for which the plaintiff seeks
redress, the injury that is alleged need not be great.
. . . Furthermore, an allegation of injury is a prerequi-
site under federal law to the maintenance of an action
under [42 U.S.C.] § 1983.’’ (Citations omitted; emphasis
in original; footnote omitted; internal quotation marks
omitted.) Johnson v. Rell, 

119 Conn. App. 730

, 737, 

990 A.2d 354

(2010).
   The plaintiff has not established that he has standing
because he has not demonstrated that he has a specific,
personal, or legal interest in deportation parole eligibil-
ity. In his complaint, the plaintiff alleged a violation of
procedural due process as the basis for his § 1983
action, and claimed that he was deprived of a liberty
interest in deportation parole eligibility pursuant to
§ 54-125d. The possibility of deportation parole created
by § 54-125d does not create a legal interest in parole
eligibility. The plaintiff’s due process claims in the pres-
ent case mirror those that he made in Wright v. Com-
missioner of 

Correction, supra

, 201 Conn. App. . In
that case, we determined that the plaintiff did not have
a liberty interest in deportation parole eligibility and/
or a deportation parole hearing pursuant to the deporta-
tion parole statute, § 54-125d.

Id. We are mindful

of the
limited scope of relief available through a petition for
a writ of habeas corpus; see Green v. Commissioner
of Correction, 

184 Conn. App. 76

, 85, 

194 A.3d 857

(peti-
tioner must allege either illegal confinement or depriva-
tion of liberty interest to invoke jurisdiction of habeas
court), cert. denied, 

330 Conn. 933

, 

195 A.3d 383

(2018);
and of the broader jurisdictional basis implicated in this
action. In this civil action, the plaintiff is not required
to demonstrate the existence of a liberty interest in
order to invoke jurisdiction. See Vincenzo v. Chairman,
Board of Parole, 

64 Conn. App. 258

, 263, 

779 A.2d 843

(2001) (lack of liberty interest does not prevent plain-
tiff’s pursuit of declaratory judgment action as long as
statutory requirements for bringing declaratory judg-
ment are satisfied). The plaintiff, however, must satisfy
the requirements of establishing standing to bring his
civil action. See, e.g., Steeneck v. University of Bridge-

port, supra

, 

235 Conn. 579

–80.
   The plaintiff has failed to allege a direct or imminent
injury to a legal interest. He does not have a legally
protected interest in deportation parole eligibility. See
Wright v. Commissioner of 

Correction, supra

, 201
Conn. App. . Furthermore, as the trial court alluded,
although the plaintiff wrapped his claim in the garb of
a civil rights action, his action concerns the fact that
he was not given a parole eligibility hearing. The failure
to exercise discretion to grant a deportation parole
eligibility hearing is not within the zone of interests
protected by 42 U.S.C. § 1983. See, e.g., Hinesburg
Sand & Gravel Co. v. State, 

166 Vt. 337

, 342, 

693 A.2d 1045

(1997) (dispute dressed up as civil rights action
not within zone of interests of 42 U.S.C. § 1983). Accord-
ingly, we conclude that the plaintiff lacks standing.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     The plaintiff also raises an additional related claim regarding the Uniform
Administrative Procedures Act, General Statutes § 4-183 et seq., which he
did not raise in the trial court. This claim is unreviewable for a number of
reasons, but we simply state that, because the plaintiff lacks standing, we
decline to address this claim.
   2
     General Statutes § 54-125d (c) provides: ‘‘Notwithstanding the provisions
of subdivision (2) of subsection (b) of section 54-125a, any person whose
eligibility for parole is restricted under said subdivision shall be eligible for
deportation parole under this section after having served fifty per cent of
the definite sentence imposed by the court.’’
   3
     All parties also presented us with opposing arguments addressing the
trial court’s stated ground for dismissal, namely, that the action is barred
by sovereign immunity.

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