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JAMES A. HARNAGE v. RACQUEL

LIGHTNER ET AL.

(AC 37539)

Gruendel, Prescott and Pellegrino, Js.

Argued October 28, 2015—officially released March 1, 2016

(Appeal from Superior Court, judicial district of

Hartford, Peck, J. [motion to dismiss]; Hon. Constance

L. Epstein, judge trial referee [motions to dismiss, for

judgment].)

James A. Harnage, self-represented, the appellant

(plaintiff).

Michael A. Martone, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney general, and Terrence M. O’Neill, assistant attorney general,

for the appellees (defendants).
Opinion

PRESCOTT, J. The plaintiff, James A. Harnage,

appeals from the judgment of the trial court, dismissing

his civil action in favor of the defendants1 on the

grounds that he failed to properly serve the defendants

in theirindividual capacities and failed to post a recognizance bond as required by General Statutes (Rev. to

2013) § 52-185.2 On appeal, the plaintiff claims that the

court improperly granted the defendants’ motion to dismiss because: (1) General Statutes §§ 52-64 (a) and 52-

57 (a) permit process to be served upon state employees

in their individual capacities by serving the attorney

general at the Office of the Attorney General in Hartford; and (2) the recognizance bond requirement, as set

forth in General Statutes (Rev. to 2013) §§ 52-185 and

52-186,3 does not apply to him, or, if it does, such a

requirement is unconstitutional because it violates his

rights to due process and equal protection of the law

under the United States constitution. We are not persuaded by either claim. Nevertheless, because we put

an interpretive gloss on §§ 52-185 and 52-186 in order

to avoid placing these statutes in constitutional jeopardy, we are compelled to reverse the judgment in part

and to remand this case to the trial court to consider

whether it should waive the plaintiff’s obligation to post

a recognizance bond.

The record reveals the following undisputed facts

and procedural history. The plaintiff is incarcerated

at the MacDougall-Walker Correctional Institution. On

February 11, 2014, the trial court found that the plaintiff

was indigent and granted him a fee waiver for the entry

fee, the filing fee, and the cost of service of process.

The plaintiff then initiated this action against the defendants, in their official and individual capacities,4 alleging

that the defendants had violated his constitutional

rights because they were deliberately indifferent to his

medical needs. The plaintiff claimed, inter alia, that the

defendants reused needles when administering insulin

medication to inmates with diabetes, as well as refused

to provide him with medical treatment for a serious

hemorrhoid and an abdominal hernia.

On March 5, 2014, the plaintiff attempted to serve

the defendants by leaving a copy of the writ of summons, and complaint with the attorney general or his

designee at the Office of the Attorney General. On or

about April 15, 2014, the defendants mailed a letter to

the plaintiff, requesting that he post a recognizance

bond in the amount of $250 within ten days. That same

day, the defendants also filed a motion to dismiss the

complaint against the defendants in their individual

capacities for lack of personal jurisdiction due to insufficient service of process, and against the defendants

in their official capacities because the plaintiff had

failed to post a recognizance bond.
The plaintiff subsequently filed an objection to the

defendants’ motion to dismiss. In his objection, the

plaintiff argued that he had properly served the defendants in their individual capacities by leaving a copy

of the process with the attorney general at the Office

of the Attorney General in Hartford. Furthermore, he

claimed that the requirement of posting a recognizance

bond pursuant to § 52-185 and Practice Book § 8-3 did

not apply to him and, even if it did, the amount of the

recognizance bond was in the court’s discretion and

should be limited to the nominal amount of one dollar,

which, in essence, is a request for a waiver.

On June 30, 2014, the court granted the defendants’

motion to dismiss in part. Specifically, the court granted

the motion to dismiss the claims against the defendants

in their individual capacities because the plaintiff failed

to properly serve the defendants in their individual

capacities pursuant to § 52-57 (a). The court also

ordered the plaintiff to a post a recognizance bond in

the amount of $250 within two weeks or it would dismiss the case in its entirety upon reclaim of the motion.

Because the plaintiff could not afford to post the $250

recognizance bond and desired to appeal from the

court’s decision, on November 10, 2014, he filed a

motion for judgment, which the court subsequently

granted. This appeal followed.

I

The plaintiff first claims that the court improperly

granted the defendants’ motion to dismiss for lack of

personal jurisdiction the claims brought against them

in theirindividual capacities on the ground that he failed

to properly serve the defendants pursuant to § 52-57

(a). The plaintiff argues that in a civil action against

state employees in their individual capacities, § 52-64

(a) permits service of process to be made by a proper

officer leaving a copy of process with the attorney general at the Office of the Attorney General in Hartford.

The plaintiff further argues that § 52-57 (a) does not

require him to serve the defendants in hand or at their

place of abode because the phrase, ‘‘[e]xcept as otherwise provided,’’ contained in § 52-57 (a), is a reference

to § 52-64. The defendants respond that it is clearly

established that § 52-64 (a) applies only if a state

employee has been sued in his official capacity and that

§ 52-57 (a) applies when a state employee is sued in

his individual capacity. We agree with the defendants.

We begin with the standard ofreview and the relevant

legal principles governing the plaintiff’s claim. ‘‘A

motion to dismiss . . . properly attacks the jurisdiction of the court . . . . A motion to dismiss tests, inter

alia, whether, on the face of the record, the court is

without jurisdiction. . . . [O]ur review of the trial

court’s ultimate legal conclusion and resulting [decision

to grant] . . . the motion to dismiss will be de novo.
. . . To the extent that our resolution of an appeal

requires us to construe a statute, our review is plenary,

as statutory construction is a question of law.’’ (Citation

omitted; internal quotation marks omitted.) Ribeiro v.

Fasano, Ippolito & Lee, P.C., 157 Conn. App. 617, 623–

24, 117 A.3d 965 (2015); see State v. Boyd, 272 Conn. 72,

76, 861 A.2d 1155 (2004) (stating that when interpreting

language of statute, standard of review is plenary).

‘‘The principles that govern statutory construction

are well established. When construing a statute, [o]ur

fundamental objective is to ascertain and give effect to

the apparent intent of the legislature. . . . In other

words, we seek to determine, in a reasoned manner,

the meaning of the statutory language as applied to the

facts of [the] case, including the question of whether

the language actually does apply. . . . In seeking to

determine that meaning, General Statutes § 1-2z directs

us first to consider the text of the statute itself and its

relationship to other statutes. If, after examining such

text and considering such relationship, the meaning of

such text is plain and unambiguous and does not yield

absurd or unworkable results, extratextual evidence of

the meaning of the statute shall not be considered. . . .

When a statute is not plain and unambiguous, we also

look for interpretive guidance to the legislative history

and circumstances surrounding its enactment, to the

legislative policy it was designed to implement, and to

its relationship to existing legislation and common law

principles governing the same general subject matter

. . . .’’ (Internal quotation marks omitted.) Southern

New England Telephone Co. v. Cashman, 283 Conn.

644, 650–51, 931 A.2d 142 (2007).

We begin, as we must, with the language of the statutes at issue. Section 52-57 (a) provides: ‘‘Except as

otherwise provided, process in any civil action shall be

served by leaving a true and attested copy ofit, including

the declaration or complaint, with the defendant, or at

his usual place of abode, in this state.’’ Section 52-57

(b) through (f) then set forth a number of exceptions

to subsection (a). For example, subsection (d) provides

in relevant part: ‘‘In actions against a partnership, service of process may be made by personally serving any

process within the state upon any one of the partners

or, if none of the partners are residents of the state,

service may be made upon the Secretary of the State

. . . .’’ General Statutes § 52-57 (d).

Additionally, § 52-64 (a) provides: ‘‘Service of civil

process in any civil action or proceeding maintainable

against or in any appeal authorized from the actions

of, or service of any foreign attachment or garnishment

authorized against, the state or against any institution,

board, commission, department or administrative tribunal thereof, or against any officer, servant, agent or

employee of the state or of any such institution, board,

commission, department or administrative tribunal, as
the case may be, may be made by a proper officer (1)

leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General at the office of the Attorney General in Hartford,

or (2) sending a true and attested copy of the process,

including the summons and complaint, by certified mail,

return receipt requested, to the Attorney General at the

office of the Attorney General in Hartford.’’

In construing §§ 52-57 (a) and 52-64 (a), we do not

write on a clean slate. Decisions of this court have

repeatedly held that a plaintiff, who serves a state defendant pursuant to § 52-64 (a) by leaving a copy of the

process with the attorney general at the Office of the

Attorney General, has properly served the defendant

only in his or her official capacity and has failed to

properly serve the defendant in his or her individual

capacity. See Traylor v. Gerratana, 148 Conn. App.

605, 612–13, 88 A.3d 552 (holding that plaintiff’s claims

against defendants in their individual capacities were

barred by lack of personal jurisdiction on basis of

improper service of process because plaintiff only

served process on attorney general and not at defendants’ places of abode as required by § 52-57 [a]), cert.

denied, 312 Conn. 901, 91 A.3d 908, cert. denied, 312

Conn. 902, 112 A.3d 778, cert. denied, U.S. , 135

S. Ct. 444, 190 L. Ed. 2d 336 (2014); Edelman v. Page,

123 Conn. App. 233, 243–44, 1 A.3d 1188 (‘‘[T]he court

properly dismissed the action against the state defendants due to insufficient service. . . . [T]hey were

being sued in theirindividual capacities, which required

that they be served at their usual place of abode. The

plaintiff acknowledged that service was made on the

secretary at the office of the attorney general [only]

. . . .’’ [Citations omitted.]), cert. denied, 299 Conn.

908, 10 A.3d 525 (2010); Reitzer v. Board of Trustees

of State Colleges, 2 Conn. App. 196, 203–204, 477 A.2d

129 (1984) (holding that service on defendants through

Office of Attorney General was proper because defendants were sued in their official capacities but relief

sought can only be granted against them in their official

capacity and not in their individual capacity).

The United States Court of Appeals for the Second

Circuit has similarly declined to interpret § 52-64 (a) as

authorizing service on a state employee in his or her

individual capacity by leaving a copy of the process

with the attorney general at the Office of the Attorney

General. See Bogle-Assegai v. Connecticut, 470 F.3d

498, 507 (2d Cir. 2006), cert. denied, 552 U.S. 1165, 128

S. Ct. 1121, 169 L. Ed. 2d 949 (2008). In reaching that

conclusion, the Second Circuit relied in particular on

the following language of § 52-64 (a): ‘‘against . . . the

state or . . . any officer, servant, agent or employee

of the state . . . as such . . . .’’ (Emphasis added;

internal quotation marks omitted.) Id. The court reasoned that if a defendant is a state employee, but is not

sued ‘‘as such,’’ in other words, if he is sued in his
individual capacity, service of process must be made

pursuant to § 52-57 (a), which requires that service be

made by leaving the summons and complaint with the

defendant or at his usual place of abode. Id. In light of

the language of the statutes and these authorities, in

order for the plaintiff to have properly served the defendants in their individual capacities, he was required to

serve process in the manner required by § 52-57 (a).

The plaintiff argues thatif § 52-57 (a)is applicable,the

legislature’s use of the phrase, ‘‘[e]xcept as otherwise

provided,’’ demonstrates an intent that § 52-64 (a)

applies in the event that a state employee is sued in his

or her individual capacity. The language of the statute,

however, does not allow for such an interpretation

because § 52-64 (a) does not ‘‘otherwise provide’’ for

service of process on a state employee in his or her

individual capacity by serving process on the attorney

general at the Office of the Attorney General. Furthermore, § 52-57 specifically enumerates exceptions to

subsection (a), none of which provide that it is permissible to serve process in cases against state employees

in their individual capacities by leaving a copy of the

process with the attorney general at the Office of the

Attorney General. Thus, the legislature’s use of the

phrase, ‘‘[e]xcept as otherwise provided,’’ does not

advance the plaintiff’s claim because he has failed to

identify any applicable statutory exception to § 52-57

(a).

In sum, in order for the plaintiff to properly serve

process on the defendants in their individual capacities,

the plaintiff was required to ‘‘[leave] a true and attested

copy of [process], including the declaration or complaint, with the defendant, or at his usual place of abode

. . . .’’ General Statutes § 52-57 (a). Because the plaintiff failed to comply with § 52-57 (a) and only attempted

to serve process upon the defendants by leaving a copy

of process at the Office of the Attorney General, such

service was insufficient to obtain personal jurisdiction

over the defendants in their individual capacities.

Accordingly, we conclude that the court properly dismissed for lack of personal jurisdiction the claims

brought against the defendants in their individual capacities because the defendants were not properly served

pursuant to § 52-57 (a).

II

The plaintiff next claims that the court improperly

granted the defendants’ motion to dismiss the claims

brought against them in their official capacities on the

ground that the plaintiff failed to post a recognizance

bond pursuant to § 52-185.5 Specifically, the plaintiff

argues that the recognizance bond requirement does

not apply to him, or if it does, it is unconstitutional

because it deprives him of his rights to due process

and equal protection of the law underthe federal constitution. We conclude that the recognizance bond require-
ment does apply to the plaintiff. We, however, conclude

that it is necessary to place an interpretive gloss on

§§ 52-185 and 52-186 in order to avoid placing them in

constitutional jeopardy. Accordingly, we construe these

provisions as authorizing the court to waive the plaintiff’s obligation to post, or to reduce significantly the

amount of, a recognizance bond in light of a party’s

indigency and status as an inmate.

A

The plaintiff first argues that the recognizance bond

requirement, as set forth in §§ 52-185 and 52-186, does

not apply to him because a recognizance bond is

required only if costs can be taxed against him if the

state prevails. The plaintiff argues that costs cannot

be taxed against him because a 1931 decision of our

Supreme Court stated that if costs are not taxable

against one party, then that party may not seek costs

in its favor. See Bissing v. Turkington, 113 Conn. 737,

740, 157 A. 226 (1931) (‘‘[i]f [costs] are not taxable

against the respondent they are not taxable in his favor

against the applicant’’). Thus, according to the plaintiff’s

argument, because the state’s sovereign immunity prevents the imposition of costs against it, costs may not

be taxed against him.6 We are not persuaded.

Whether the recognizance bond requirement, as set

forth in §§ 52-185 and 52-186, applies to the plaintiff in

this case is a question of statutory interpretation, and,

therefore, our review is plenary. See Atlantic Mortgage & Investment Corp. v. Stephenson, 86 Conn. App.

126, 131–32, 860 A.2d 751 (2004) (‘‘The question of

whether a particular statute . . . applies to a given

state of facts is a question of statutory interpretation

. . . . Statutory interpretation presents a question of

law for the court. . . . Our review is, therefore, plenary.’’ [Internal quotation marks omitted.]); Ribeiro v.

Fasano, Ippolito & Lee, P.C., supra, 157 Conn. App.

623–24 (in reviewing trial court ruling on motion to

dismiss, ifrequired to construe statute, appellate review

is plenary because it is question of law); see also part

I of this opinion (discussing standard of review for

statutory construction issues and legal principles guiding our analysis).

We begin with the language of the provisions at issue.

General Statutes (Rev. to 2013) § 52-185 provides in

relevant part: ‘‘(a) If the plaintiff in any civil action . . .

does not appear to the authority signing the process

that the plaintiff is able to pay the costs of the action

should judgment be rendered against him, the plaintiff

shall enter into a recognizance to the adverse party

with a financially responsible inhabitant of this state

as surety, or a financially responsible inhabitant of this

state shall enter into a recognizance to the adverse

party, that the plaintiff shall prosecute his action to

effect and answer all costs for which judgment is rendered against him. . . .’’
General Statutes (Rev. to 2013) § 52-186 (a) provides

in relevant part: ‘‘The court, upon motion of the defendant or on its own motion, may order a sufficient bond

to be given by the plaintiff before trial . . . . In

determining the sufficiency of the bond to be given, the

court shall consider only the taxable costs which the

plaintiff may be responsible for under section 52-257

. . . .’’

It is well settled that these statutes only apply in civil

cases in which costs are taxable against the plaintiff.

See Bissing v. Turkington, supra, 113 Conn. 739

(‘‘[recognizance bond requirement] must be construed

to apply only to process in actions in which costs are

taxable, since there would be no reason for securing

the payment of costs in an action in which costs could

not in any event be recovered’’). ‘‘Costs are a matter

of statutory regulation, and are not taxable unless given

by statute.’’ Id.

General Statutes § 52-257 (a) permits costs to be

taxed in favor of the prevailing party in civil actions

‘‘in which the matter in demand is not less than fifteen

thousand dollars . . . .’’7 Section 52-257 clearly and

unambiguously provides for costs to be taxable in favor

of the prevailing party in civil actions, making no

explicit exceptions forinmates orindigent parties: ‘‘The

prevailing party in any such civil action shall receive

. . . .’’8

(Emphasis added.) General Statutes § 52-257

(a).

The plaintiff’s assertion that these provisions do not

apply to him is based on the following syllogism. In

Bissing v. Turkington, supra, 113 Conn. 740, our

Supreme Court stated: ‘‘If [costs] are not taxable against

the respondent they are not taxable in [the respondent’s] favor against the applicant.’’ The plaintiff then

argues that costs are not taxable against the state

because the legislature did not waive the state’s sovereign immunity when it enacted § 52-257. See State v.

Chapman, 176 Conn. 362, 364–66, 407 A.2d 987 (1978).

Because the state’s sovereign immunity prevents the

taxation of costs against the state in this action, the

defendant asserts that the language in Bissing prevents

costs from being taxed against him. Accordingly, he

argues that a recognizance bond is not required in

this case.9

We disagree because the plaintiff takes the language

used by our Supreme Court in Bissing out of context.

Bissing was a habeas corpus proceeding. Although

habeas corpus proceedings are technically civil actions;

see Smith v. Bennett, 365 U.S. 708, 712, 81 S. Ct. 895,

6 L. Ed. 2d 39 (1961) (‘‘habeas corpus may, of course,

be found to be a civil action for procedural purposes’’);

they do not fall within the parameters of § 52-257, which

expressly limits its applicability to civil cases that seek

monetary relief. See General Statutes § 52-257. Mone-
tary relief is not available in habeas proceedings. See

Sanchez v. Warden, 214 Conn. 23, 34, 570 A.2d 673

(1990) (stating that standard relief in habeas corpus

action is discharge of prisoner, while standard relief in

§ 1983 action may include compensatory and punitive

damages, injunctive relief, and attorney’s fees). Bissing

held that because there was no statute permitting costs

to be taxable in favor of the prevailing party in a habeas

corpus action, ‘‘there would seem to be no justification

for the taxation of costs in such proceeding, and therefore no need for a recognizance for costs.’’ Bissing v.

Turkington, supra, 113 Conn. 740.

The present case, unlike a habeas proceeding, falls

into a category of cases in which the legislature has

specifically authorized the taxation of costs because it

is a civil action ‘‘in which the matter in demand is not

less than fifteen thousand dollars . . . .’’ General Statutes § 52-257 (a). Thus, § 52-257 applies to the plaintiff

and, should the state prevail in this action, he would

be liable to the state to pay the state’s taxable costs.

Accordingly, we conclude that the court properly determined that the recognizance bond requirement applied

to the plaintiff.

B

The plaintiff argues, in the alternative, that the court

improperly granted the defendants’ motion to dismiss

the official capacity claims on the ground that such a

recognizance bond requirement is unconstitutional, as

applied to him, an indigent inmate, because it denies

him his fundamentalright of access to the courts, particularly his right to challenge the conditions of his confinement. Thus, the plaintiff contends that, as applied

to him, the statutes requiring a recognizance bond deny

him due process and equal protection of the law under

the United States constitution.

Although recognizing that the plaintiff has raised a

constitutional challenge, the defendants simply respond

that all statutes are presumed to be constitutional. The

defendants also argue that the plaintiff’s access to the

courts is not unlawfully restricted because of his indigent status, in light of the fact that § 52-185 permits a

plaintiff to avoid actually posting the recognizance bond

by having a ‘‘financially responsible inhabitant of this

state . . . enter into a recognizance to the adverse

party . . . .’’ General Statutes (Rev. to 2013) § 52-185

(a). The defendants, however, do not otherwise address

whether the statute infringes upon the plaintiff’s right

of access to the courts in light of the fact that he is

indigent and incarcerated.

‘‘[I]n evaluating the [plaintiff’s] challenge to the constitutionality of [a] statute . . . [w]e will indulge in

every presumption in favor of the statute’s constitutionality . . . .’’ (Internal quotation marks omitted.) State

v. Indrisano, 228 Conn. 795, 805, 640 A.2d 986 (1994).
‘‘It . . . is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality

must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. . . . Therefore,

[w]hen a question of constitutionality is raised, courts

must approach it with caution, examine it with care,

and sustain the legislation unless its invalidity is clear.’’

(Internal quotation marks omitted.) Doe v. Hartford

Roman Catholic Diocesan Corp., 317 Conn. 357, 405,

119 A.3d 462 (2015). ‘‘[W]e may also add interpretive

gloss to a challenged statute in order to render it constitutional. In construing a statute, the court must search

for an effective and constitutional construction that

reasonably accords with the legislature’s underlying

intent.’’ (Internal quotation marks omitted.) State v.

Indrisano, supra, 805–806.

With these principles in mind, we turn to the specifics

of this case. The plaintiff raises valid constitutional

concerns regarding the recognizance bond requirement

as applied to him, an indigent inmate. Prisoners have

a fundamental right of access to the courts, including

the right to challenge the conditions of their confinement. See Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.

Ct. 2963, 41 L. Ed. 2d 935 (1974). It is well established

that prisoners have a fundamental constitutional right

of access to the courts, and that such access must be

‘‘adequate, effective and meaningful. . . . Decisions of

the United States Supreme Court have consistently

required [s]tates to shoulder affirmative obligations to

assure all prisoners meaningful access to the courts. It

is indisputable that indigent inmates must be provided

at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and

with stamps to mail them. States must forgo collection

of docket fees otherwise payable to the treasury and

expend funds for transcripts. State expenditures are

necessary to pay lawyers for indigent [criminal] defendants at trial . . . and in appeals as of right . . . .’’

(Citations omitted; internal quotation marks omitted.)

Washington v. Meachum, 238 Conn. 692, 735, 680 A.2d

262 (1996). Prisoners possess a right of access not only

to pursue appeals from criminal convictions or to bring

a habeas action, but also to assert civil rights actions

to vindicate their basic constitutional rights, including

challenging the conditions of their confinement under

the eighth amendment to the federal constitution. Wolff

v. McDonnell, supra, 579 (‘‘[i]t is futile to contend that

the Civil Rights Act of 1871 has less importance in our

constitutional scheme than does the Great Writ’’).

In civil cases in which a fundamental right is implicated and judicial recourse is the sole manner of resolving the dispute, there cannot be a total deprivation of

access to the courts, and a statute conditioning access

to the courts on paying court fees or costs raises significant constitutional concerns. See Boddie v. Connecti-
cut, 401 U.S. 371, 382–83, 91 S. Ct. 780, 28 L. Ed. 2d 113

(1971) (holding that statute requiring indigent plaintiffs

to pay filing fee to obtain divorce violated due process

because marriage is fundamental interest and plaintiff

can only obtain divorce through judicial system); see

also M.L.B. v. S.L.J., 519 U.S. 102, 123–24, 117 S. Ct.

555, 136 L. Ed. 2d 473 (1996) (holding that statute conditioning civil litigants’ right to appeal a termination of

parental rights on prepayment of costs was unconstitutional as violation of due process and equal protection

because it implicated fundamental interest and resort

to court was sole path for relief); cf. Sosna v. Iowa,

419 U.S. 393, 410, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975)

(limiting Boddie to circumstances where there is total

deprivation of access to the courts to obtain divorce

and holding that access to courts was not denied by

delaying access to divorce); United States v. Kras, 409

U.S. 434, 445–46, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973)

(upholding statute requiring payment of court fees as

condition precedent to discharge in bankruptcy

because no fundamental interest is at stake and resort

to courts is not sole path to securing debt forgiveness).

In the present case, in considering the recognizance

bond statutes and assessing their constitutionality, we

are mindful of these constitutional principles. Sections

52-185 and 52-186 contain no express exception to the

recognizance bond requirement for indigent inmates.

Furthermore, the recognizance bond requirement is not

one of the enumerated fees or costs that can be waived

pursuant to General Statutes § 52-259b if a plaintiff is

found to be indigent and unable to pay.10 In light of the

lack of express authority to waive the recognizance

bond requirement, a handful of our Superior Courts

have held that indigent inmates must comply with the

recognizance bond requirement, regardless of their

inability to pay. See Steinkamp v. Jacque, 36 Conn.

Supp. 37, 38, 410 A.2d 489 (1979) (holding that waiver

of bond for prosecution for indigent defendant is not

permitted); Fellows v. Williams, Superior Court, judicial district of Hartford, Docket No. CV-00-0800686-S,

2000 WL 1655273 (September 27, 2000) (Rittenband,

J.) (no waiver of bond for prosecution for inmate).

These Superior Court decisions, upon which the

defendants rely, have not analyzed whetherthe recognizance bond requirement as applied to indigent inmates

runs afoul of an inmate’s fundamental right of access

to the courts to challenge the conditions of his or her

confinement. The defendants are correct that § 52-185

authorizes a plaintiff to find another financially responsible person to enter into a recognizance on his behalf,

thereby permitting an indigent plaintiff to avoid having

to pay the recognizance bond out of his own pocket.

This option does not alleviate our constitutional concerns altogether when the indigent plaintiff is incarcerated. An indigent inmate, who has no financial ability

to pay the recognizance bond and lacks access to the
greater world, may not be able to find a ‘‘financially

responsible inhabitant of this state’’; General Statutes

(Rev. to 2013) § 52-185 (a); to turn to for help, and,

thus, would be cut off from accessing the courts to

bring any civil actions that fall within the parameters

of the recognizance bond requirement.11

In order to alleviate the constitutional concerns that

the plaintiff has brought to our attention, we place an

interpretive gloss on §§ 52-185 and 52-186. See State v.

Indrisano, supra, 228 Conn. 805 (placing interpretive

gloss on disorderly conduct statute to eliminate constitutional infirmity). In crafting an effective interpretive

gloss that does not conflict with the legislature’s underlying intent, it is instructive to consider decisions of

the federal circuit courts assessing the constitutionality

of the fee provision of the Prison Litigation Reform Act

(PLRA); 28 U.S.C. § 1915;12 which conditions prisoners’

access to the courts on the prepayment of filing fees.

In upholding the constitutionality of the fee provision,

the federal circuit courts have relied heavily on the fact

that the PLRA contains a safety valve provision; 28

U.S.C. § 1915 (b) (4); which ensures that indigent

inmates, who have no means by which to pay the initial

filing fee, are not barred from bringing their civil

actions. See, e.g., Murray v. Dosal, 150 F.3d 814, 818

(8th Cir. 1998) (‘‘[g]iven . . . that the PLRA provides

no prisoner shall be prohibited from bringing an action

‘for the reason that the prisoner has no assets and no

means by which to pay the initial partial filing fee,’ we

agree that the provisions pass constitutional muster’’),

cert. denied, 526 U.S. 1070, 119 S. Ct. 1467, 143 L. Ed.

2d 551 (1999); Tucker v.Branker, 142 F.3d 1294, 1297–99

(D.C. Cir. 1998) (discussing that PLRA has safety valve

to ensure access to courts for fully indigent prisoners);

Hampton v. Hobbs, 106 F.3d 1281, 1284 (6th Cir. 1997)

(upholding § 1915 because it does not deprive inmates

their right of access to courts because of safety valve

provision); see also Taylor v. Delatoore, 281 F.3d 844,

848–49 (9th Cir. 2002) (same).

In placing an interpretive gloss on §§ 52-185 and 52-

186, we note the need for a safety valve that would allow

an indigent inmate, who cannot afford the recognizance

bond and who has no ability to procure a ‘‘financially

responsible inhabitant of this state’’; General Statutes

(Rev. to 2013) § 52-185 (a); willing to enter into one on

his or her behalf, to access the courts. In order to create

such a safety valve, we place a gloss on §§ 52-185 and

52-186 authorizing a trial court to exercise its discretion

to waive the recognizance bond requirement outright

or to significantly reduce the amount of the bond upon

a proper showing of the inmate’s indigency and an

inability to find another financially responsible person

willing to enter into a recognizance bond on his or her

behalf. Truly indigent inmates, at the hearing on the

motion to dismiss for lack of a recognizance bond, can
request a waiver of the bond requirement or request

that a nominal amount be imposed.13 Thus, an indigent

inmate’s path to the courts is not blocked, and his or

her fundamental right of access to the courts is not

implicated, alleviating our constitutional concerns.

Additionally, such a gloss ameliorates any potential

constitutional infirmities because our judicially fashioned safety valve prevents there from being a total

deprivation of access to the courts. In Sosna v. Iowa,

supra, 419 U.S. 410, the United States Supreme Court

upheld a one year residency requirement before permitting state residents to obtain a divorce, reasoning that

although litigants have a right of meaningful access to

the courts to obtain a divorce, this right may be burdened as long as there is not a ‘‘total deprivation’’ of

access. Using similarreasoning, the United States Court

of Appeals forthe Tenth Circuit upheld the constitutionality of a statute, as applied to an inmate, sanctioning

litigants for frivolous or malicious lawsuits because a

prisoner’s constitutional right of access to the courts

can be limited as long as there is not a ‘‘total deprivation’’ of access to the courts. Green v. Price, Docket

Nos. 95-1079, 95-1080, 1996 WL 56075 (10th Cir. February 9, 1996) (decision without published opinion, 76

F.3d 392 [10th Cir. 1996]). Similarly, with the interpretive gloss that we place on §§ 52-185 and 52-186, the

recognizance bond requirement does not totally deprive

indigent inmates of access to the courts to challenge

the conditions of their confinement; rather, they can

still bring their lawsuits upon a proper showing of indigency at the hearing on the motion to dismiss or at a

requested hearing on the appropriate amount of bond.

Furthermore, such an interpretive gloss does no violence to §§ 52-185 and 52-186. These statutes are silent

as to whether they authorize a trial court to waive

the recognizance bond requirement, and certainly they

include no express language that prevents a trial court

from doing so. Although they do provide that a trial

court may order a ‘‘sufficient’’ bond amount after considering the potential taxable costs pursuant to § 52-

257; General Statutes (Rev. to 2013) § 52-186; arguably

implying that an outright waiver of the recognizance

bond is not permitted, our interpretive gloss is necessary to avoid constitutional jeopardy.14

Not only does our interpretive gloss do no violence

to §§ 52-185 and 52-186, it is also in accord with the

currentrevision of § 52-185.15 See General Statutes (Rev.

to 2015) § 52-185, as amended by Public Acts 2015,

No. 15-85, § 14. According to the Office of Legislative

Research, the amendments to § 52-185 ‘‘[replace] certain provisions requiring a [recognizance] bond . . .

with new provisions prohibiting them, unless a court

finds good cause . . . .’’16 Office of Legislative

Research, Connecticut General Assembly, Bill Analysis,

Senate Bill No. 1033. In amending § 52-185 and in repeal-
ing § 52-186, the legislature has significantly narrowed

the number of civil cases in which a recognizance bond

is required and has provided the trial court with greater

discretion in determining whether a recognizance bond

is necessary. Thus, as amended, § 52-185 lends support

to the interpretive gloss that we place on General Statutes (Rev. to 2013) §§ 52-185 and 52-186.

Further, although the plaintiff does have a fundamental right of access to the courts to challenge the conditions of his confinement and to vindicate deprivations

of his civil rights, with the gloss that we place on §§ 52-

185 and 52-186 permitting waiver of the recognizance

bond, we determine that the possibility for deprivation

of that right has been ameliorated. Because the recognizance bond requirement with our interpretive gloss

does not impinge on a fundamental right, we conclude

that these statutes pass constitutional muster under

due process and equal protection review.17

Having added this interpretive gloss to §§ 52-185 and

52-186, which the trial court did not consider, we find

it necessary to remand the case to the trial court for a

hearing to consider the plaintiff’s request, made before

the trial court, for a waiver.

The judgment is reversed only as to the dismissal of

the plaintiff’s causes of action against the defendants

in their in official capacities and the case is remanded

for a hearing consistent with this opinion to consider

the plaintiff’s request for a waiver of his obligation to

post a recognizance bond. The judgment is affirmed in

all other respects.

In this opinion the other judges concurred.

1 According to the plaintiff’s complaint, the defendants are nine state

employees. Eight of the nine defendants were employed by the University

of Connecticut Correctional Managed Healthcare Program and provided

medical services to inmates at the MacDougall-Walker Correctional Institution: Racquel Lightner, Dr. Pillai, Dr. O’Hallaran, CN Vecchairelli, Dr. Naqui,

PA Rob, LPN Francis, and Lisa Caldonero. The remaining defendant, Lieutenant Williams, was employed by the Department of Correction and was a

lieutenant at the MacDougall-Walker Correctional Institution.

2 We note that since the commencement of this action, § 52-185 has been

amended, effective October 1, 2015. See Public Acts 2015, No. 15-85, § 14.

Because the current revision of the statute is substantively different from

its previous revision and was not in effect at the time that the trial court

decided the motion to dismiss, our analysis pertains to the revision of the

statute in effect at that time. Thus, all references to § 52-185 are to the

revision that was in effect at that time, unless otherwise indicated.

3 We note that § 52-186, although in effect at the time of the motion to

dismiss, has since been repealed, effective October 1, 2015. See Public Acts

2015, No. 15-85, § 27. Because the statute was in effect at the time that the

motion to dismiss was decided, it is part of our analysis.

There are a number of provisions of our rules of practice that implement

§§ 52-185 and 52-186. See Practice Book §§ 8-3 through 8-12. Although the

plaintiff mentions Practice Book § 8-4, he does not separately analyze any

of the relevant provisions of the rules of practice. Because the recovery of

costs and the need for a recognizance bond to secure those costs are

primarily legislative matters; see Bissing v. Turkington, 113 Conn. 737, 739,

157 A. 226 (1931) (taxation of costs is matter of statutory regulation and

recognizance bond required only if costs are taxable); our analysis focuses

on the meaning and import of the statutes.

4 The plaintiff’s complaint specifically indicates that the plaintiff is suing

the defendants in their individual capacities but is silent as to whether he
is also suing them in their official capacities. The defendants and the trial

court treated the complaint as if the defendants were being sued in both

their official capacities and individual capacities.

5

In his brief, the plaintiff discusses only § 52-185. Section 52-186, however,

also is part of the statutory scheme governing recognizance bonds and,

thus, a discussion of this statute is necessary to a complete analysis of the

plaintiff’s argument.

6 The plaintiff also makes the following public policy argument, contending

that the recognizance bond requirement should not apply to him because

he is an indigent inmate challenging the conditions of his confinement: ‘‘A

challenge to an [inmate’s] conditions of confinement is not of the category

of cases wherein costs may be taxed against the plaintiff. The underlying

philosophy being that to do so would be to paralyze, and erect a barrier to

an inmate’s ability to challenge the very force that restrains them, and denies

them an ability to insist on the most civilized treatment . . . .’’ We construe

this contention as an argument in support of the plaintiff’s constitutional

claim, rather than as part of his statutory construction claim. Moreover, the

plaintiff’s public policy concerns are mitigated by our construction of §§ 52-

185 and 52-186, and, thus, we are not persuaded by them. See part II B of

this opinion.

7 General Statutes § 52-257 provides in relevant part: ‘‘(a) The fees of

parties in civil actions in which the matter in demand is not less than fifteen

thousand dollars . . . . The prevailing party in any such civil action shall

receive, by way of indemnity, the following sums: (1) For all proceedings

before trial, fifty dollars; (2) for the trial of an issue of law or fact, seventyfive dollars, but if more than one issue of fact is tried at one time, only one

trial fee shall be allowed; and (3) in difficult or extraordinary cases in the

Superior Court, where a defense has been interposed, a further allowance,

in the discretion of the court, not to exceed two hundred dollars.

‘‘(b) Parties shall also receive: (1) For each witness attending court, the

witness’ legal fee and mileage; (2) for each deposition taken out of the state,

forty dollars, and for each deposition within the state, thirty dollars . . .

(5) for maps, plans, mechanical drawings and photographs, necessary or

convenient in the trial of any action, a reasonable sum; (6) for copies of

records used in evidence, bonds, recognizances and subpoenas, court and

clerk’s fees; (7) for the signing and service of process, the legal fees payable

therefor, except that a fee shall not be allowed for the return of a subpoena

to court; (8) the actual expense incurred in publishing orders of notice

under direction of the court; (9) for each interpreter necessarily employed

in the trial of any civil action, twenty dollars per diem; (10) for premiums

upon all bonds or undertakings provided pursuant to statute, rule of court,

order of court or stipulation of parties, including bonds in lieu of or in

release or dissolution of attachment, the actual amount paid, not exceeding

a reasonable amount; (11) documented investigative costs and expenses,

not exceeding the sum of two hundred dollars; and (12) for the recording,

videotaping, transcribing and presentation of the deposition of a practitioner

of the healing arts, as defined in section 20-1, dentist, registered nurse,

advanced practice registered nurse or licensed practical nurse, as defined

in section 20-87a, or real estate appraiser that is used in lieu of live testimony

in the civil action, the reasonable expenses incurred. . . .’’

8 Although General Statutes § 52-259b (a) provides for waiver of ‘‘fees

payable to the court’’ and/or the cost of service of process if the court finds

a party to be indigent and unable to pay, § 52-259b does not waive any other

litigation related costs.

9 Carried to its logical conclusion, the plaintiff’s argument would mean

that the state is never entitled to the taxation of costs when it prevails in

a case because sovereign immunity prevents costs from ever being taxed

against it. We discern no language in any of these statutes that would suggest

that the legislature intended to deprive the state of its right to receive costs

in civil actions in which it prevails. Moreover, the plaintiff has not cited a

single case that would support such a remarkable proposition.

10 General Statutes § 52-259b provides in relevant part: ‘‘(a) In any civil

or criminal matter, if the court finds that a party is indigent and unable to

pay a fee or fees payable to the court or to pay the cost of service of process,

the court shall waive such fee or fees and the cost of service of process

shall be paid by the state. . . .’’

11 Though not discussed by the defendants, we also note that there is an

alternative means by which the plaintiff may access the courts to challenge

the conditions of his confinement: he may file a habeas petition challenging

the conditions of his confinement, which does not require the posting of a
recognizance bond because costs are not taxable in a habeas proceeding.

See Bissing v. Turkington, supra, 113 Conn. 740. This alternative avenue

by which the plaintiff may challenge the conditions of his confinement,

however, is not sufficient in and of itself to alleviate our constitutional

concerns because the recognizance bond requirement applies to all civil

actions in which costs are taxable in favor of the prevailing party pursuant

to § 52-257. As stated previously, inmates have a right to bring civil rights

actions to vindicate their constitutional rights, which includes, but is not

limited to, the right to challenge the conditions of their confinement. See

Wolff v. McDonnell, supra, 418 U.S. 579. Therefore, although there is an

alternative path for inmates to access the courts to challenge the conditions

of their confinement, that option does not altogether alleviate our constitutional concerns regarding the preconditioning of indigent inmates’ access

to the courts on the payment of a recognizance bond.

Additionally, a civil action challenging an inmate’s conditions of confinement pursuant to 42 U.S.C. § 1983 is distinct from a habeas proceeding that

is brought to challenge the conditions of confinement because compensatory

and punitive damages are available in a § 1983 civil action, but are not

available in a habeas proceeding. See id., 554 (‘‘habeas corpus is not an

appropriate or available remedy for damages claims, which . . . could be

pressed under § 1983 along with suits challenging the conditions of confinement rather than the fact or length of custody’’).

12 Title 28 of the United States Code, § 1915, provides in relevant part:

‘‘(a) . . . . (2) A prisoner seeking to bring a civil action or appeal a judgment

in a civil action or proceeding without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit

a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the

filing of the complaint or notice of appeal, obtained from the appropriate

official of each prison at which the prisoner is or was confined. . . .

‘‘(b) (1) Notwithstanding subsection (a), if a prisoner brings a civil action

or files an appeal in forma pauperis, the prisoner shall be required to pay

the full amount of a filing fee. The court shall assess and, when funds exist,

collect, as a partial payment of any court fees required by law, an initial

partial filing fee of 20 percent of the greater of—

‘‘(A) the average monthly deposits to the prisoner’s account; or

‘‘(B) the average monthly balance in the prisoner’s account for the 6-

month period immediately preceding the filing of the complaint or notice

of appeal.

‘‘(2) After payment of the initial partial filing fee, the prisoner shall be

required to make monthly payments of 20 percent of the preceding month’s

income credited to the prisoner’s account. The agency having custody of

the prisoner shall forward payments from the prisoner’s account to the clerk

of the court each time the amount in the account exceeds $10 until the

filing fees are paid. . . .

‘‘(4) In no event shall a prisoner be prohibited from bringing a civil action

or appealing a civil or criminal judgment for the reason that the prisoner

has no assets and no means by which to pay the initial partial filing fee. . . .’’

13 It is, of course, the indigent inmate’s burden to prove that he is indigent

and that he cannot afford the amount of bond requested by the defendants.

It is also the inmate’s burden to request a hearing as to the amount of bond

if such a hearing is desired.

14 Although the allowance in § 52-185 for a plaintiff not to pay the recognizance bond from his own funds and instead to find a ‘‘financially responsible

inhabitant of this state’’ to enter into a recognizance on his behalf does

not alleviate our constitutional concerns regarding the recognizance bond

requirement as applied to indigent inmates, it is a relevant factor to be taken

into consideration by a trial court when deciding whether it should waive

the recognizance bond or substantially reduce the bond amount.

15 The current revision of General Statutes (Rev. to 2015) § 52-185, as

amended by Public Acts 2015, No. 15-85, § 14, provides in relevant part: ‘‘No

bond or recognizance for prosecution is required from a party in any civil

action unless the judicial authority, upon motion and for good cause shown,

finds that a party is not able to pay the costs of the action and orders that

the party give a sufficient bond or enter into a recognizance to an adverse

party with a financially responsible person to pay taxable costs. In determining the sufficiency of the bond or recognizance, the judicial authority shall

consider only the taxable costs which the party may be responsible for

under section 52-257 . . . .’’ (Emphasis added.)

16 In testifying on behalf of the Judicial Branch in favor of amending § 52-
185, the Honorable Patrick L.Carroll III,the deputy chief court administrator,

stated that a recognizance bond ‘‘unnecessarily increases the burden on

self-represented [plaintiffs] . . . and does not provide any realistic security

for costs of an action.’’ Judiciary Committee public hearing, concerning

Senate Bill No. 1033 (April 1, 2015), testimony of Judge Carroll.

17 If no fundamentalright is implicated, the challenged legislation is subject

to evaluation for substantive due process and equal protection purposes

under the rational basis test. Federal Communications Commission v.

Beach Communications, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed.

2d 211 (1993); Reno v. Flores, 507 U.S. 292, 305, 113 S. Ct. 1439, 123 L. Ed.

2d 1 (1993). The plaintiff has only briefed his due process and equal protection claims on the basis of a fundamental right being violated. The plaintiff

has failed to brief whether the recognizance bond requirement passes the

rational basis test, should we find that no fundamental right is at stake. In

light of this inadequate briefing, we decline to address this issue. See Clelford

v. Bristol, 150 Conn. App. 229, 233, 90 A.3d 998 (2014).