Opinion
No. CV 05-5001140
January 10, 2006
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS
The plaintiff, William Arnold, an inmate at the Osborn Correctional Institution brings this action pro se. He has identified his cause of action as a "medical malpractice" complaint against Dr. Sharron LaPlante of the Hartford Correctional Center, Dr. Ganpag Chouhan of the Corrigan Correctional Center and Doctors Mark Buchanan, "M." Mastro, (plaintiff does not allege this individual's first name), and Sheryl Malcom of the University of Connecticut's Correctional Managed Health Care Program's Utilization Review Committee. This Utilization Review Committee is also named as a defendant.
The plaintiff's allegations, as set forth in his complaint, center around the failure of Doctors LaPlante and Chouhan to prescribe the proper medications and tests or to order the proper diet for the control of his diabetes and cholesterol problems, and the University's Utilization Review Committee's: (1) failure to institute proper medical protocols for inmates; (2) approval of an improper drug treatment which plaintiff claims damaged his liver; and (3) denial of exploratory testing and/or treatment for plaintiff's unspecified spinal injury.
The defendants have moved to dismiss the complaint because it improperly alleges a class action and because the action is barred either by the doctrine of sovereign immunity or the statutory immunity provided by General Statutes § 4-165.
I Standard of Review
"A motion to dismiss . . . properly attacks the jurisdiction 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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter." (Internal quotation marks omitted.) Practice Book §§ 10-31(1). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). "The motion to dismiss . . . admits all facts which are well pleaded." Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996). See also Novicki v. New Haven, 47 Conn.App. 734, 739, 709 A.2d 2 (1998). "In ruling upon whether a complaint survives a motion to dismiss, 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 favorable to the pleader." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998).
II
The class action issue can be disposed of summarily. The plaintiff had annexed to his complaint a document captioned "Legal Affidavit — Class Action Lawsuit." The defendants moved to dismiss the class action component of the lawsuit because the complaint did not satisfy the requirements of a class action and the plaintiff was not a proper class representative. In his memorandum in response to the defendants' motion to dismiss, the plaintiff expressly states that "This complaint is not a class action . . ." Accordingly, any portion of the complaint that purported to allege a class action has been expressly abandoned by the plaintiff, and the court need not engage in the certification procedures set forth in Practice Book Section 9-7 and 9-8.
III
The second ground for the defendants' motion to dismiss is that this action has been brought against the defendant doctors in their official capacities and it is therefore an action against the state. Thus, it is barred by the doctrine of sovereign immunity. The sovereign immunity enjoyed by the state is not absolute, and our Supreme Court has recognized limited exceptions to the doctrine. These are: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity; Martinez v. Dept of Public Safety, 263 Conn. 74, 85-86, 818 A.2d 758 (2003); (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights; Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987); and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority. Antinerella v. Rioux, 229 Conn. 479, 497, 642 A.2d 699 (1994), overruled in part, Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003); Tuchman v. State, 89 Conn.App. 745, 753, 878 A.2d 384 (2005). For any of these exceptions to apply, our Supreme Court has imposed specific pleading requirements. For a claim made pursuant to the second exception, complaining of unconstitutional acts, our Supreme Court has stated that "[t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests." Barde v. Board of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988). For a claim under the third exception, alleging that an officer acted in excess of statutory authority, "the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations." Shay v. Rossi, 253 Conn. 134, 174-75, 749 A.2d 1147 (2000), overruled in part, Miller v. Egan, supra, 265 Conn. 325. In the absence of a proper factual basis in the complaint to support the applicability of these exceptions AND a specific claim for declaratory or injunctive relief, the granting of a motion to dismiss on sovereign immunity grounds is proper.
The first issue that must be addressed is whether the defendants have been sued in their official or individual capacities. In Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975), the Supreme Court set forth four criteria to determine whether an action is against the state or against named defendants in their individual capacities: "(1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability."
Although the defendant claims in his memorandum of law in response to the motion to dismiss that he is only suing the named defendants individually, and not in their official capacities, his description of the nature of the action does not preclude the defendants from their rights to invoke the doctrine of sovereign immunity. Martin v. Brady, 64 Conn.App. 433, 437, 780 A.2d 961 (2001), affirmed, 261 Conn. 372, 802 A.2d 814 (2002). The plaintiff has included the University of Connecticut's Utilization Review Committee and its members, who set protocols for care to inmates, as defendants. In his memorandum, the plaintiff continues to emphasize that the defendants were at all times acting under color of state law by virtue of their positions within the department of corrections. His bare assertion that the defendants are not being sued in their official capacities is belied by his failure to serve any of the individuals, his failure to allege that the action is brought against the defendants in their individual capacities, (there are no separately delineated counts or specific references in the complaint to indicate the capacity in which the defendants are being sued), his challenge to what he alleges are policies of the department of correction, his reference to improper acts by other medical staff and administrators, his declared purpose to hold the "system" accountable for his complaints regarding medical care and his use of the defendants' official titles in the summons and complaint. He states, on page 9 of his memorandum, that "In Arnold case, the evidence surpasses that of merely malpractice on the part of 3 individuals and clearly brings into perspective the collective body of multi individuals depriving inmates of constitution [rights] . . ." In the complaint, the named defendants are all state employees alleged to be physicians working at either the University of Connecticut Health Center or correctional institutions. The actions complained of all occurred while the named employees were administering medical care to the plaintiff in their official capacities as medical practitioners employed by and/or representing the State of Connecticut Correctional Managed Health Care Program. "[I]dentities of the parties are determined by their description in the summons." Hultman v. Blumenthal, supra, 67 Conn.App. 13, 620, 787 A.2d 666, cert. denied 259 Conn. 929, 793 A.2d 253 (2002).
On January 6, 2006, the court denied the defendant's motion for continuance, filed on December 15, 2005, (requesting more time to respond to the motion to dismiss), because it was filed more than ten days after the date of the filing of the motion to dismiss. See Practice Book Section 10-30. The court did not consider the plaintiff's "Final Memorandum of Law," filed on December 16, 2005, because it too was filed late. See Practice Book Section 10-31(b). In addition, there was no signed certification to opposing counsel annexed to either the motion for continuance or the "Final Memorandum." See Practice Book Section 10-14.
The first two criteria are met because the defendants clearly are state officials, and the actions involve their actions as state employees. The third criterion is met because the liability for the damages sought by the plaintiff, in excess of twenty-five million dollars, as stated on page 18 of his class action affidavit, is an award which could only possibly be funded by the state. The fourth criterion is met in that any judgment against any of the defendants would operate to control the activities of the state either in terms of its fiscal impact or its effect on the role of state correctional physicians and its managed care program in determining diets, medications and/or testing for inmates. Clearly, the complaint in this case should be construed as an action against the defendants in their official capacities.
Having concluded that the plaintiff brings this action against the defendants in their official capacities, the court must next determine whether the defendants' actions are protected by the doctrine of sovereign immunity. The defendants rely on Antinerella v. Rioux, supra, and Shay v. Rossi, supra, to argue that the plaintiff has not sufficiently alleged any facts that the defendants' conduct rose to the level of egregiousness necessary to defeat their defense of sovereign immunity. However, they have misstated the law and ignored the essential, subsequent holding in Miller v. Egan, supra.
In Miller v. Egan, supra, 265 Conn. 315-16, the Supreme Court reiterated that the exception that a state officer against whom relief is sought acted in excess of statutory authority or pursuant to an unconstitutional statute does not apply to claims against the state for monetary damages, but only to claims for declaratory or injunctive relief. See Doe v. Heintz, 204 Conn. 17, 32, 526 A.2d 1318 (1987); Krozer v. New Haven, 212 Conn. 415, 423, 562 A.2d 1080 (1989), (plaintiff seeking money damages against state, alleging the defendant's actions violated his constitutional rights, required to seek waiver of immunity from claims commissioner before bringing action in court), cert. denied, 493 U.S. 1036, 110 S.Ct. 757, 107 L.Ed.2d 774 (1990). The complaint in this case does not sufficiently allege any statutory exceptions to sovereign immunity. Even if the complaint did allege facts sufficient to support a claim that the defendants in their official capacities acted in excess of their authority or violated the plaintiff's constitutional rights, there is no request for declaratory or injunctive relief. In fact, there is no prayer for relief at all, but, as noted earlier, the plaintiff says it's a medical malpractice suit, and he does claim a minimum of twenty-five million dollars in damages in his class action affidavit. The Miller court noted that to the extent that CT Page 472 Antinerella and Shay held that sovereign immunity does not bar monetary damages actions against state officials acting in excess of their statutory authority, those two cases were overruled. Miller v. Egan, supra, 265 Conn. 325.
"`When a plaintiff brings an action for money damages against the state, he must proceed through the office of the Claims Commissioner pursuant to chapter 53 of the General Statutes, § 4-141 et seq. Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity." Prigge v. Ragaglia, 265 Conn. 338, 349, 838 A.2d 542 (2003). The plaintiff has not alleged, nor is there any indication, that he has obtained permission from the Claims Commissioner to sue the state. In the absence of any such permission to sue, this lawsuit, which the court has concluded, under the criteria of Spring v. Constantino, has been brought against the defendants in their official capacities, and which seeks only money damages, must be dismissed under the doctrine of sovereign immunity.
Accordingly, the plaintiff is required to comply with the requirements outlined above in General Statutes § 4-141 et seq. "[A] claimant falling outside the exceptions of § 4-142 must bring a claim before commencing an action. That claim is not a demand, a suit or an action in a court of justice but, rather, is a petition seeking permission to proceed with an action against the state in a court of justice." Capers v. Lee, 239 Conn. 265, 272, 684 A.2d 696 (1996). There is no basis for this court to conclude that recourse to the Claims Commissioner would result in an inadequate remedy. "Since we are not aware of any legal barrier to the presentation of the plaintiff's claim to the commissioner or to his favorable action upon it, we cannot assume that recourse to that procedure would necessarily have been futile or inadequate. The failure of the plaintiffs to pursue this administrative remedy precludes an adjudication of the constitutional claim they have raised. No determination of whether a constitutional necessity exists that would supersede the state's sovereign immunity can be made when the alternative procedure available through the claims commissioner, which might have provided the relief sought, has been ignored. [B]ecause exhaustion of such an alternative means of relief is a prerequisite to our jurisdiction to consider [the] constitutional claim; we conclude that the trial court lacked jurisdiction and, therefore, properly granted the motion to dismiss." (Citations omitted; internal quotation marks omitted.) Barde v. Board of Trustees, supra, 207 Conn. 66. Because there is no evidence that the administrative remedy provided by statute is futile and Arnold has failed to bring a claim against the state to the Claims Commissioner, and received permission to sue, this court lacks jurisdiction to hear this suit.
IV
With respect to the defendants' claim of statutory immunity under General Statutes § 4-165, the court need not address this issue, since liability under that statute only applies when the defendants have not established a defense of sovereign immunity. Since the doctrine of sovereign immunity does apply to the facts in this case, § 4-165 is inapplicable. Shay v. Rossi, supra, 253 Conn. 162-64; Hultman v. Blumenthal, supra, 67 Conn.App. 624.
Conclusion
For the foregoing reasons, the defendants' motion to dismiss the entire complaint is granted and a judgment of dismissal shall enter accordingly.