VERTEFEUILLE, J. The self-represented plaintiff,1
Ian Wright, appeals from the judgment of the trial court,
dismissing count four of his complaint, brought against
the defendant Bonnie Hakins, a counselor for the
Department of Correction (department), in her individ-
ual capacity, on the ground that the plaintiff’s action is
barred for failure to exhaust his administrative reme-
dies.2 On appeal, the plaintiff claims that the court erred
(1) in determining that he had failed to exhaust his
administrative remedies and (2) in considering the
defendant’s special defense that the plaintiff had failed
to exhaust his administrative remedies because the
defendant had waived that special defense. We disagree
and, accordingly, affirm the judgment of the court.
The following procedural history and facts, as found
by the court or as undisputed in the record, are relevant
to this appeal. The self-represented plaintiff was trans-
ferred to Garner Correctional Institution (Garner) from
Corrigan Radowski Correctional Center on April 22,
2014. On April 30, 2014, the plaintiff submitted form
CN 9601, an inmate request form (informal form), to a
prison official at Garner, indicating that he had a griev-
ance against the defendant for her alleged refusal to
allow him access to a typewriter so that he could pre-
pare legal documents to file with this court. The plaintiff
included a subject line titled, ‘‘Re Grievance Denial
Access to typewriter,’’ on the informal form. On that
form, the plaintiff stated that the grievance was being
filed against the defendant, who had denied him ‘‘access
to [the] typewriter, which [was] necessary to prepare
legal pleadings to be filed with the [Connecticut] Appel-
late and federal courts.’’ The plaintiff also claimed that
the denial of access to the typewriter amounted to a denial
of access to the court in violation of his first amendment
rights under the federal constitution.
A prison official responded to the plaintiff’s informal
form and stated that the defendant was following Gar-
ner’s policy and that the plaintiff was given access to
the typewriter on May 5, 2014. Thereafter, on May 13,
2014, the plaintiff submitted form CN 9602, an inmate
administrative remedy form (level one grievance form),
setting forth a grievance against the defendant due to
the defendant’s alleged refusal to allow him access to
a typewriter. Specifically, the plaintiff indicated that
the grievance was being filed ‘‘for failure of the coun-
selor . . . and the staff of the [d]epartment . . . to
provide [him] with adequate use of a typewriter neces-
sary to prepare legal document[s] to be filed with the
court, which constitutes ‘denial of access to the courts’
in violation of the first amendment to the constitution
of the United States.’’ The plaintiff also claimed that he
was subjected to an unreasonable search. The relief
that the plaintiff requested to resolve his grievance
entailed him being given access to the typewriter five
days per week for one hour each day. His request was
denied on June 11, 2014. The denial notice stated that,
because Garner had only one typewriter that was
afforded for use at Garner, the plaintiff should seek an
extension with the courts so that he could timely submit
his legal documents. The denial notice also advised the
plaintiff that he could appeal the denial.
On June 13, 2014, the plaintiff submitted form CN
9604, an inmate grievance appeal form (level two griev-
ance form), appealing the denial of his level one griev-
ance regarding access to the typewriter, claiming that
his grievance was improperly denied because he was
unable to get access to the typewriter from the defen-
dant after submitting numerous requests. His level two
appeal was denied on July 1, 2014, and the denial notice
stated that his claim was denied because his allegations
could not be substantiated.
On June 10, 2014, the plaintiff submitted a second
informal form with a subject line titled, ‘‘Re: Access to
the typewriter and unreasonable strip search ‘Griev-
ance.’ ’’ On that informal form, the plaintiff stated that
it was his ‘‘second grievance with respect to not getting
access to the typewriter.’’ The plaintiff also claimed
that he believed ‘‘[t]he actions of [the defendant] [were]
in retaliation for [his] first grievance [that he] filed
against her.’’ Garner responded by indicating that the
issue raised by the defendant already had been
addressed and that he was not being denied access
because he had used the typewriter on several occa-
sions and even chose to use his recreational time to
exercise in lieu of using the typewriter when he was
given the opportunity to use it. He did not further pur-
sue, administratively, his claim of retaliation.
The plaintiff thereafter commenced this action in the
Superior Court on October 3, 2014. The five count com-
plaint alleged violations of 42 U.S.C. § 1983 (2012). The
fourth count of the complaint, the relevant count for
purposes of the plaintiff’s claims raised on appeal, alleged
that the defendant retaliated against the plaintiff for filing
a grievance against her by denying him access to the
typewriter.3 The plaintiff sought, inter alia, a declaratory
judgment from the court ‘‘stating that . . . the denial
of a typewriter . . . constituted denial of ‘access to the
court,’ ’’ and punitive damages.
On March 24, 2015, the defendants filed a motion to
dismiss all counts of the plaintiff’s complaint, con-
tending that the court lacked subject matter jurisdic-
tion, to which the plaintiff filed an objection on April
23, 2015. On August 31, 2016, the court, Ozalis, J.,
dismissed the plaintiff’s access to the court claims
under counts one, two, and three for lack of standing
because the plaintiff failed to show that he suffered an
actual injury. On October 16, 2018, the defendants filed
a second motion to dismiss, seeking dismissal of the
plaintiff’s claims for declaratory and injunctive relief
and count five of the complaint. On February 4, 2019,
the court, Krumeich, J., granted the defendants’ motion
and dismissed count five, as well as the plaintiff’s claims
for injunctive and declaratory relief, after determining
that, because the plaintiff no longer was incarcerated
at Garner, it lacked subject matter jurisdiction to afford
the plaintiff the injunctive and declaratory relief
requested. Moreover, the court determined that the
plaintiff’s claims under count five of the complaint
became moot after he no longer was incarcerated at
Garner.
On April 15, 2019, the defendant filed a motion for
summary judgment as to count four, which was denied
by the court, Brazzel-Massaro, J., on November 20,
2019. On October 28, 2019, the defendant filed her
answer to the plaintiff’s complaint in which she denied
the plaintiff’s allegations in count four. She also raised
two special defenses, claiming that she was entitled to
qualified immunity for the allegations asserted under
count four and that the plaintiff’s action was barred
by the Prison Litigation Reform Act (PLRA), 42 U.S.C.
§ 1997e (a) (2018),4 because the plaintiff had failed to
exhaust available administrative remedies before com-
mencing this action in the Superior Court. On December
10, 2019, the plaintiff and the defendant exchanged their
respective trial exhibits and the plaintiff also filed his
list of trial exhibits with the court. On December 12,
2019, the eve of trial, the defendant filed a request to
amend her answer and special defenses solely to
address typographical and grammatical errors, and not
to make any substantive changes. The request to amend
was granted by the court on December 13, 2019. The
defendant also had filed a motion for order on Decem-
ber 12, 2019, seeking a pretrial evidentiary hearing to
determine whether the plaintiff had exhausted his
administrative remedies before initiating this action.
The court granted the defendant’s motion after stating
its concerns about the defendant’s request to have the
hearing on the morning of the first day of trial, Decem-
ber 13, 2019. The defendant indicated that, until the
plaintiff had provided her with his trial exhibits on
December 10, 2019, it was not clear to her that the
plaintiff had failed to exhaust his administrative reme-
dies. Notwithstanding the court’s concerns about the
timing of the defendant’s motion, the evidentiary hear-
ing was held that morning.
The defendant’s only witness during the evidentiary
hearing was Jason Olson, a correction counselor at
Garner, who, at the time, was assigned as the primary
administrative remedies coordinator. Olson testified
that he maintained the records of grievances filed by
inmates at Garner. He also explained that the inmate
grievance procedure at Garner was governed by the
department’s administrative directive 9.6 (administra-
tive directive). See Conn. Dept. of Correction, Adminis-
trative Directive 9.6 (effective August 15, 2013).5 Olson’s
testimony established that the proper procedure for an
inmate to file a grievance, pursuant to the administra-
tive directive, required the inmate first to go through
an informal resolution process, which required the
inmate to submit an informal form. If the informal pro-
cess did not address the inmate’s concerns, the inmate
could then file a grievance by means of a level one
grievance form. If the inmate’s level one grievance was
denied, the inmate could thereafter seek a review by
filing a level two grievance form, which is when the
inmate is considered to have exhausted the administra-
tive remedy process. Notably, Olson testified that the
plaintiff exhausted his administrative remedies as it
pertained to the grievance he filed on May 13, 2019,
concerning access to the courts and unreasonable
search claims because the plaintiff submitted an infor-
mal form, a level one grievance form, and a level two
grievance form for these claims.6 Olson also testified
that the plaintiff never filed a level one grievance form
after filing a second informal form on June 10, 2014,
alleging retaliation.
The plaintiff did not proffer any witnesses and
claimed that he did not have sufficient notice of the
defendant’s exhaustion claim to adequately respond to
the claim. Moreover, the plaintiff asserted that the filing
of the second informal form on June 10, 2014, consti-
tuted the filing of a grievance and was sufficient because
the informal process was a part of the inmate grievance
procedure set forth in the administrative directive. In
response, the defendant argued that the plaintiff had
enough time to prepare because her special defense of
failure to exhaust administrative remedies was included
in her answer that was filed on October 28, 2019. Conse-
quently, the defendant moved for a dismissal during the
evidentiary hearing, which the court granted, dismissing
count four of the complaint after concluding that the
plaintiff failed to exhaust his administrative remedies
by failing to file a level one grievance form concerning
the retaliation allegation. In particular, the court found
that the evidence supported the finding that the plaintiff
did not file a level one grievance form against the defen-
dant alleging retaliation, nor was there a second level
grievance filed as required by the administrative direc-
tive. Further, the court noted that, because the plaintiff
was familiar with the process required for filing a griev-
ance pursuant to the administrative directive, the fact
that he was a self-represented party did not cause him
hardship. This appeal followed.7 Additional facts will
be set forth as necessary.
I
On appeal, the plaintiff first claims that the court
erred by determining that he had failed to exhaust his
administrative remedies. Specifically, the plaintiff con-
tends that the court’s determination that he failed to
exhaust his administrative remedies prior to initiating
this action was improper because he sufficiently had
described the defendant’s retaliatory conduct in the
first grievance that he had filed on May 13, 2014, and
that he was not required to file a second grievance
alleging retaliation because it would have been consid-
ered an abuse of the inmate grievance procedure.8 We
decline to review this claim for the reasons that follow.9
The inmate grievance procedure set forth in adminis-
trative directive 9.6 § (6) provides in relevant part: ‘‘(A)
An inmate must attempt to seek informal resolution
prior to filing an inmate grievance. The inmate may
attempt to resolve the issue verbally with the appro-
priate staff member or with a supervisor/manager. If
the verbal option does not resolve the issue, the inmate
shall submit a written request via CN 9601, Inmate
Request Form. . . .
‘‘(C) An inmate may file a grievance [via CN 9602] if
the inmate is not satisfied with the informal resolution
offered. . . .
‘‘(K) An inmate may appeal a Level 1 disposition to
Level 2 within (5) calendar days of receipt of the deci-
sion. . . . Level 2 shall be the final level of appeal for
all grievances except as provided in . . . (L).’’10
(Emphasis added.)
During the evidentiary hearing on December 13, 2019,
the plaintiff fervently argued that the filing of the June
10, 2014 informal form against the defendant alleging
retaliation was sufficient because ‘‘the grievance is
deemed filed’’ once he starts the grievance process.
More particularly, he argued that because the first step
in the inmate grievance procedure under the adminis-
trative directive is an informal resolution, he, in fact,
had filed a grievance regarding his retaliation claim
upon the submission of his June 10 informal form.
The crux of the plaintiff’s retaliation claim on appeal
is that the May 13, 2014 grievance that he filed was
sufficient to alert prison officials of the defendant’s
alleged retaliatory conduct and that he was not required
to file a second grievance regarding the defendant’s
conduct because doing so would have been an abuse
of the inmate grievance procedure pursuant to § (6)
(O) (3) of administrative directive 9.6. This argument
was not raised before the trial court, and, therefore,
we decline to review it for the first time on appeal.
‘‘[I]t is the appellant’s responsibility to present a claim
clearly to the trial court so that the trial court may
consider it and, if it is meritorious, take appropriate
action. That is the basis for the requirement that ordi-
narily [the appellant] must raise in the trial court the
issues that he intends to raise on appeal. . . . For us
[t]o review [a] claim, which has been articulated for
the first time on appeal and not before the trial court,
would result in a trial by ambuscade of the trial judge.’’
(Internal quotation marks omitted.) Dinardo Seaside
Tower, Ltd. v. Sikorsky Aircraft Corp., 153 Conn. App.
10, 28, 100 A.3d 413, cert. denied, 314 Conn. 947, 103
A.3d 976 (2014). Thus, because the record shows that
the plaintiff did not raise this claim clearly before the
court and is raising it for the first time on appeal, we
decline to review it on appeal.
Alternatively, the plaintiff asks this court to review
his unpreserved claim under the plain error doctrine
pursuant to Practice Book § 60-5.11 ‘‘[Section] 60-5 pro-
vides in relevant part that [t]he court shall not be bound
to consider a claim unless it was distinctly raised at
the trial or arose subsequent to the trial. The court may
in the interests of justice notice plain error not brought
to the attention of the trial court.’’ (Internal quotation
marks omitted.) Id., 28.
‘‘As our Supreme Court has explained: [T]he plain
error doctrine . . . is not . . . a rule of reviewability.
It is a rule of reversibility. That is, it is a doctrine that
this court invokes in order to rectify a trial court ruling
that, although either not properly preserved or never
raised at all in the trial court, nonetheless requires rever-
sal of the trial court’s judgment, for reasons of policy.
. . . In addition, the plain error doctrine is reserved
for truly extraordinary situations where the existence
of the error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial
proceedings. . . .’’ (Internal quotation marks omitted.)
Norwich v. Norwich Harborview Corp., 156 Conn. App.
45, 50, 111 A.3d 956 (2015).
This court ‘‘clarified the two step framework under
which we review claims of plain error. First, we must
determine whether the trial court in fact committed an
error and, if it did, whether that error was indeed plain
in the sense that it is patent [or] readily discernable on
the face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . We made
clear . . . that this inquiry entails a relatively high stan-
dard, under which it is not enough for the [party] simply
to demonstrate that his position is correct. Rather, the
party seeking plain error review must demonstrate that
the claimed impropriety was so clear, obvious and indis-
putable as to warrant the extraordinary remedy of rever-
sal.’’ (Internal quotation marks omitted.) Id., 50–51. ‘‘In
addition, although a clear and obvious mistake on the
part of the trial court is a prerequisite for reversal under
the plain error doctrine, such a finding is not, without
more, sufficient to warrant the application of the doc-
trine. Because [a] party cannot prevail under plain error
unless it has demonstrated that the failure to grant relief
will result in manifest injustice . . . under the second
prong of the analysis we must determine whether the
consequences of the error are so grievous as to be
fundamentally unfair or manifestly unjust. . . . Only if
both prongs of the analysis are satisfied can the appeal-
ing party obtain relief.’’ (Internal quotation marks omit-
ted.) DeChellis v. DeChellis, 190 Conn. App. 853, 866,
213 A.3d 1, cert. denied, 333 Conn. 913, 215 A.3d
1210 (2019).
The plaintiff claims that the circumstances of his case
are extraordinary because the court and the defendant
have overlooked controlling case law. Beyond that bald
assertion, the plaintiff has provided little to no analysis
of this unpreserved claim under the plain error doctrine.
Because the plaintiff has cursorily addressed the argu-
ment that plain error exists with respect to the briefed
error, we conclude that he has failed to demonstrate
that there was an error ‘‘so clear, obvious and indisput-
able as to warrant the extraordinary remedy of rever-
sal.’’ Norwich v. Norwich Harborview Corp., supra, 156
Conn. App. 51.
II
The plaintiff next claims that the court erred in con-
sidering the defendant’s special defense that he had
failed to exhaust his administrative remedies because
the defendant had waived that special defense by failing
to raise it in her first motion to dismiss filed on March
24, 2015, her second motion to dismiss filed on October
16, 2018, or her motion for summary judgment filed on
April 15, 2019. The defendant, however, contends that
the defense is not waived because there is no indication
in the record that she ever expressly waived the special
defense, and there is no basis in the record on which
an ‘‘intentional waiver may reasonably be inferred.’’ We
conclude that the defendant did not waive the special
defense of exhaustion of administrative remedies.
The following additional facts are relevant to the
resolution of this claim. During the evidentiary hearing,
the plaintiff argued before the court that the defendant
was raising the exhaustion issue despite the pleadings
being closed and that the defendant had failed to chal-
lenge whether the plaintiff had exhausted his adminis-
trative remedies before the ‘‘eleventh hour.’’ He also
claimed that the defendant had ample opportunity dur-
ing the five or six years that the case had been ongoing
to raise the issue of exhaustion. In response to the
plaintiff’s claim that the defendant had ample opportu-
nity, the court agreed with the plaintiff that it should
‘‘probably should have been addressed earlier,’’ but
asserted that the defendant had not received the plain-
tiff’s exhibits until three days before the trial. The court
then further considered the defendant’s exhaustion spe-
cial defense, ultimately determining that the plaintiff
had failed to exhaust his administrative remedies.12
The United States Supreme Court has established
that exhaustion under the PLRA is an affirmative
defense. See Jones v. Bock, 549 U.S. 199, 211–16, 127
S. Ct. 910, 166 L. Ed. 2d 798 (2007). Additionally, Practice
Book § 10-6 provides that the order of pleadings should
be as follows: ‘‘(1) The plaintiff’s complaint. (2) The
defendant’s motion to dismiss the complaint. (3) The
defendant’s request to revise the complaint. (4) The
defendant’s motion to strike the complaint. (5) The
defendant’s answer (including any special defenses) to
the complaint. . . . (8) The plaintiff’s reply to any spe-
cial defenses.’’ Although the plaintiff claims that the
defendant waived her right to raise the special defense
of exhaustion by not raising it in her motions to dismiss,
§ 10-6 suggests otherwise. By its terms, § 10-6 expressly
permits the filing of special defenses after the filing of
a motion to dismiss. Thus, the defendant was not
required to raise her special defenses in her pretrial
motions to dismiss, as the plaintiff claims.13
Moreover, the defendant was not required to raise
her exhaustion defense in the summary judgment
motion because, as noted previously in this opinion, the
defense of exhaustion under the PLRA is an affirmative
defense, and a defendant is permitted to plead her affir-
mative defenses in her answer. See Practice Book § 10-
50. Furthermore, the plaintiff was not required to factu-
ally plead in his complaint that he had exhausted his
administrative remedies. See Jones v. Bock, supra, 549
U.S. 216 (‘‘failure to exhaust is an affirmative defense
under the PLRA, and . . . inmates are not required
to specially plead or demonstrate exhaustion in their
complaints’’). As such, according to the defendant, it
was not until the plaintiff had provided her with a list
of exhibits on December 10, 2019, three days before
trial was slated to begin, that it was confirmed that the
plaintiff had not exhausted his administrative remedies
for his retaliation claim. Accordingly, the plaintiff’s sec-
ond claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff was also self-represented during the proceedings before
the trial court.
2
The plaintiff also brought this action against James Dzurenda, the former
Commissioner of Correction, in his individual and official capacities, and
Paolo Santilli, a treatment officer with the department. The count against
Santilli was dismissed on August 31, 2016, along with another count against
Hakins. The counts against Dzurenda were dismissed on August 31, 2016,
and February 4, 2019, leaving Hakins as the sole remaining defendant. In
this opinion, we refer to Hakins as the defendant and to Dzurenda, Santilli
and Hakins collectively as the defendants.
3
In count one of the complaint, the plaintiff alleged that Dzurenda denied
him access to the court by failing to provide him with access to the typewriter
in order for him to file the required legal documents with the courts. In
count two of the complaint, the plaintiff alleged that Hakins denied him
access to the courts by failing to provide him with adequate access to a
typewriter despite several requests. Count three of the complaint alleged
that Santilli had denied him access to the courts by failing to provide him
with adequate access to a typewriter. The fifth count of the complaint
alleged that Dzurenda violated his constitutional rights by implementing an
unreasonable policy and procedure at Garner that all inmates had to be
subjected to a strip search after each time that they used the typewriter at
Garner because the typewriter could be used only in the visiting area per
Garner’s policies and procedures. These counts are not germane to the
issues raised on appeal, because the plaintiff only challenges the court’s
disposition of count four.
4
Title 42 of the United States Code, § 1997e (a), provides in relevant part
that ‘‘[n]o action shall be brought with respect to prison conditions under
section 1983 . . . or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.’’
5
We note that administrative directive 9.6 was superseded on April 30,
2021. All references to administrative directive 9.6 herein are to the directive
in effect as of August 15, 2013.
6
As we stated previously in this opinion, the trial court, nevertheless,
dismissed those counts of the complaint pertaining to access to the courts
and unreasonable search claims for lack of standing and for mootness.
7
On March 6, 2020, the plaintiff filed a motion for articulation, in response
to which the court issued an articulation on May 1, 2020.
8
The plaintiff’s full May 13, 2014 grievance stated: ‘‘This grievance is being
filed for failure of the counselor, [the treatment officer] and the staff of the
[d]epartment . . . to provide me with adequate use of a typewriter neces-
sary to prepare legal documents to be filed with the court, which constitutes
[a] denial of access to the courts in violation of the first amendment to the
constitution of the United States. I was transferred from Corrigan [Radgow-
ski Correctional Center] to Garner and upon my arrival I requested use of
the typewriter and was told by the unit counselor and [the treatment officer]
that there is a [ten] day wait policy to use the typewriter. Court documents
are time sensitive and [ten] days would not be adequate enough time to
provide me with access to a typewriter. Other level [four] facilities offer
inmates [the use of] the typewriter at least one hour a day during their
recreational periods. I have [a] document which has to be filed with the
courts which require [that] they be . . . [typewritten]. I was also subjected
to an unreasonable search.
‘‘Resolution: I request that I be given access to the typewriter [five] days
per week for an hour during my recreation period which would under the
circumstances be considered adequate access and would provide me with
access to the court and not be subjected to unreasonable searches after
using the typewriter.’’ (Internal quotation marks omitted.)
9
Because the court and the defendant insinuated during the evidentiary
hearing that a failure to exhaust administrative remedies potentially impli-
cated the court’s subject matter jurisdiction, we take the opportunity to
clarify whether the exhaustion requirement under the PLRA, 42 U.S.C.
§ 1997e (a), is jurisdictional, not only to provide guidance to the parties,
but also to the trial courts, even though we recognize that the following
discussion is not necessary in order to determine the proper outcome of
the present case. Generally, ‘‘[i]t is a settled principle of administrative law
that if an adequate administrative remedy exists, it must be exhausted before
the Superior Court will obtain jurisdiction to act in the matter.’’ (Internal
quotation marks omitted.) Graham v. Friedlander, 334 Conn. 564, 576, 223
A.3d 796 (2020).
For cases involving the PLRA, however, ‘‘[i]n Richardson v. Goord, [347
F.3d 431 (2d Cir. 2003)], the United States Court of Appeals for the Second
Circuit agreed to follow the holding of its sister circuit courts of appeal[s]
that have ruled on the question of whether the exhaustion requirement of
42 U.S.C. § 1997e (a) controls subject matter jurisdiction. Those courts have
concluded that the language of the statute simply governs the timing of the
action and does not contain the type of sweeping and direct language that
would indicate a jurisdictional bar rather than a mere codification of adminis-
trative exhaustion requirements. . . . [A]n administrative claim is not
essential to a case or controversy, and 28 U.S.C. §§ 1331, 1343 supply [subject
matter] jurisdiction. Section 1997e (a) does not affect the jurisdiction estab-
lished by those statutes. . . . In the federal courts, a case in which a prisoner
fails to exhaust the available administrative remedies may be dismissed for
failure to exhaust administrative remedies under 42 U.S.C. § 1997e (a), but
not for lack of subject matter jurisdiction on that basis. . . . The provision
does not defeat [federal court jurisdiction], it merely defers it.’’ (Citations
omitted; internal quotation marks omitted.) Mercer v. Rodriquez, 83 Conn.
App. 251, 265–66, 849 A.2d 886 (2004).
The plaintiff in the present case brought this action seeking relief under
42 U.S.C. § 1983. ‘‘The United States Supreme Court has asserted that [f]ed-
eral law is enforceable in state courts . . . because the [United States]
[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.’’ (Internal quotation marks
omitted.) Sullins v. Rodriguez, 281 Conn. 128, 133, 913 A.2d 415 (2007).
Thus, the court had subject matter jurisdiction over the plaintiff’s § 1983
claim and a failure to exhaust administrative remedies did not implicate
the court’s subject matter jurisdiction. See Mercer v. Rodriguez, supra, 83
Conn. App. 265–67.
There was no procedural error, however, because the court only dismissed
the case after holding an evidentiary hearing and after finding that the
plaintiff had failed to exhaust his administrative remedies. Because the
failure to exhaust administrative remedies is a requirement to succeed, even
if not jurisdictional, the court’s dismissal after a hearing where the factual
findings supported its conclusion that the plaintiff failed to exhaust was
proper.
We also note that, although our Supreme Court in Mangiafico v. Farm-
ington, 331 Conn. 404, 408, 204 A.3d 1138 (2019), held that a ‘‘plaintiff is
not required to exhaust administrative remedies prior to filing a § 1983
claim in state court, regardless of the type of relief sought,’’ Mangiafico is
inapplicable to the present case because the plaintiff is a prisoner who is
confined in a correctional facility or prison and brought a § 1983 claim
concerning prison conditions. Therefore, he must exhaust his administrative
remedies pursuant to the PLRA. See footnote 4 of this opinion.
10
Administrative directive 9.6 § (6) (L) is not implicated in this case.
11
Although the plaintiff asks for plain error review under ‘‘General Statutes
§ 60-5’’ in his appellate brief, we assume that he intended to seek review
of his unpreserved claims under Practice Book § 60-5, not General Statutes
§ 60-5.
12
We note that, although the plaintiff did not specifically state before the
trial court that the defendant’s ‘‘special defense was waived,’’ we believe
that this claim was sufficiently raised before the court when he argued that
(1) he believed that the pleadings were closed, (2) the defendant had ample
opportunity to raise the exhaustion claim during the five or six years that the
case was ongoing, and (3) it was the defendant’s responsibility to establish
exhaustion, or lack thereof, and that she had failed to challenge it before
the ‘‘eleventh hour.’’
13
The plaintiff also claims in his appellate brief, as he did before the trial
court, that he was not provided with sufficient notice of the defendant’s
exhaustion special defense in order to ‘‘rebut her claim,’’ because she filed
the motion for order raising the exhaustion issue on the eve of trial. In
addressing the plaintiff’s claim of insufficient notice, the court found that
the plaintiff had been on notice of the defendant’s failure to exhaust con-
tention when she included it in her answer as a special defense, which was
filed on October 28, 2019.
The record shows that the defendant filed her answer and special defenses
on October 28, 2019, and not on the eve of trial as the plaintiff contends.
The plaintiff’s claim on appeal that he was without notice of the defendant’s
exhaustion claim and, consequently, could not prepare, is without merit.
The defendant pleaded the exhaustion defense in her answer more than
forty days before she filed the motion for order.