Opinion
DBDCV186031294
01-07-2020
Thomas Becker v. Western Connecticut State University
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Brazzel-Massaro, Barbara, J.
MEMORANDUM OF DECISION RE MOTION TO DISMISS #137
Brazzel-Massaro, J.
INTRODUCTION
This action was filed by way of a writ, summons and complaint on April 20, 2018. The plaintiff Thomas Becker was an adjunct professor at Western Connecticut State University teaching one class in the fall of 2017. He filed the original complaint in six counts against three defendants. The plaintiff has withdrawn counts and the court has dismissed count one. There are two remaining counts, count two and count three. The defendant filed a motion to dismiss these counts on August 8, 2019, which both seek declaratory judgment. The grounds for the motion to dismiss include: (1) the claims are moot because the plaintiff had a limited one semester teaching contract that ended on December 17, 2017, the investigation concluded, and the plaintiff suffered no discipline; (2) the claims against a state agency and individual defendants acting in their official capacity are barred by sovereign immunity; (3) with respect to count two, the plaintiff’s federal due process claim is barred by the eleventh amendment of the United States constitution and sovereign immunity; (4) with respect to count three, the plaintiff’s due process claim under the Connecticut constitution is barred because courts do not recognize a private cause of action under article 1, § 8 of the Connecticut constitution; (5) ripeness because the plaintiff did not exhaust the remedies available at Western before filing suit, and (6) the plaintiff failed to allege a violation. The plaintiff filed a memorandum in opposition dated September 10, 2019. The defendant filed a reply on September 12, 2019. The court heard argument on October 7, 2019.
FACTS
On April 19, 2018, the plaintiff, Thomas Becker (Becker), served the defendants Western Connecticut State University (Western), Western’s Chief Diversity Officer Jessica Minier-Delgado (Minier-Delgado), and Western’s President John Clark (Clark) a six-count complaint. Count one is an administrative appeal claim, count two is a request for declaratory judgment regarding the plaintiff’s due process under the United States constitution, count three is a request for declaratory judgment regarding the plaintiff’s due process under the Connecticut constitution, count four is an invasion of privacy claim, count five is an abuse of process claim, and count six is a defamation claim. On July 31, 2018, the defendants filed a motion to dismiss the action. The plaintiff subsequently withdrew counts four, five, and six of the complaint on October 23, 2018. On April 22, 2019, the court, Cohn, J. dismissed count one. On August 8, 2019, the defendants filed a renewed motion to dismiss counts two and three of the complaint. The plaintiff filed an objection to the defendants’ motion to dismiss on September 10, 2019. The defendants filed a reply memorandum in support of the motion to dismiss on September 12, 2019, and filed four subsequent notices of supplemental authority. On October 7, 2019, the court heard oral argument on this matter.
The plaintiff alleges the following facts in the complaint. The plaintiff entered into a contract with Western to teach two philosophy courses as an adjunct professor on August 31, 2017. On or about October 21, 2017, the plaintiff was hand served a notice containing allegations against him by Minier-Delgado. The plaintiff alleges that he immediately denied the allegations and informed Minier-Delgado that the established protocol deprived the plaintiff of his legally required due process rights under the fourteenth amendment of the United States constitution and article one, § 8 of the Connecticut constitution. The plaintiff also alleges that despite the plaintiff pointing out the deficiencies and requesting that the procedures be reviewed, Minier-Delgado continued with the investigation and issued findings and a decision on January 29, 2018. The plaintiff further alleges that the defendants’ actions have irreparably harmed the plaintiff in the following ways: his professional reputation, as a lawyer and a doctor of philosophy, has been harmed, he incurred costs and lost income; his reputation was damaged when Minier-Delgado and other agents of Western shared the claims against the plaintiff, and the plaintiff was not allowed to return to Western or contact his students, and the plaintiff is unable to complete a scholarly writing he had been working on as a result of being banished from Western’s campus.
DISCUSSION
"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." (Internal quotation marks omitted.) Santoroso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "[T]he court in deciding a motion to dismiss must consider the allegations of the complaint in their most favorable light." Savage v. Aronson, 214 Conn. 256, 63, 571 A.2d 696 (1990). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
"Trial courts addressing motions to dismiss ... pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case ... [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts ... Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citation omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 974 A.2d 669 (2009) (subject matter jurisdiction).
"[I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... other types of undisputed evidence ... and/or public records of which judicial notice may be taken ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... lf affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ... or only evidence that fails to call those allegations into question ... the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citation omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v State, supra, 292 Conn. 851-52.
A. Mootness
"Mootness ... implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties." (Internal quotation marks omitted.) Batchelder v. Planning & Zoning Commission, 133 Conn.App. 173, 180, 34 A.3d 465, cert, denied, 304 Conn. 913, 40 A.3d 319 (2012). "Since mootness implicates subject matter jurisdiction ... it can be raised at any stage of the proceedings." (Citation omitted; internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6, 688 A.2d 314 (1997).
The defendants argue that the claims are moot because the plaintiff had a limited contract as an adjunct professor to teach at Western only for the fall 2017 semester, he had not applied for additional employment, and the investigation had concluded before the lawsuit was filed. The defendants also argue that because there is no actual controversy to be determined, no practical relief may be granted. The defendants further argue that the plaintiff had the right under the applicable collective bargaining agreement to seek review of the process being used and to have due process but that the plaintiff ignored this contractual right. The defendants cite to the affidavit of Fred Cratty, Western’s Chief Human Resources Officer, and Appendix F to the contract for faculty with the American Association of University Professors (AAUP). The plaintiff argues in response that the state’s action in depriving him of his due process rights caused him damage, including the destruction of his reputation. The plaintiff also argues that the state’s failure to conduct a proper investigation, to provide constitutional safeguards, and to provide a reasonable and rational form for processing the discrimination claim led to the decision of the officer as well as the reconsideration and reaffirmation by the president, all of which will be part of the plaintiff’s permanent file. The plaintiff further argues that he was not afforded a lawyer and was told that only contract claims, and no constitutional claims, would be protected.
In the defendants’ reply memorandum in support of their motion to dismiss, the defendants counter that the plaintiff’s statement regarding the permanent file is absent from the complaint and the plaintiff provides no authority for this statement. The defendants also argue that the plaintiff did not state that it was the defendants who said only contract claims would be protected, and that Appendix F to the AASUP Contract provides for due process and details the provisions for challenging a lack of due process. The defendants noted that they presume the plaintiff is referring to his union’s refusal to afford him counsel, and argue that the plaintiff’s remedy is based on a duty of fair representation, not a declaratory judgment action.
"[M]ootness implicated [this] court’s subject matter jurisdiction ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction, it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief can follow ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal ... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) In re Emma F., 315 Conn. 414, 423-24, 107 A.2s 947 (2015). In Page v. State Marshal Commission, 108 Conn.App. 668, 950 A.2d 529, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008), a state marshal appealed from the trial court’s dismissal of his action against the state marshal commission for lack of subject jurisdiction. Id., 669-70. The state marshal sought a declaratory judgment regarding a state marshal policy on processing domestic violence restraining orders, including that the commission "deprived state marshals of the use of their property without due process of the law or just compensation, in violation of the fifth and fourteenth amendments to the United States constitution and article first, § 11, of the constitution of Connecticut." Id., 670-71. The Appellate Court held that the claim is not moot on the basis of two considerations: (1) though the policy was replaced with another, the new policy is "subject to change at the discretion of the commission or the judicial branch" and, as a result, an actual controversy still exists; and (2) "the main issue is not what specific procedures the commission adopts ... but whether the implementation of any such procedure violates the plaintiff’s rights as an independent contractor." Id., 673.
In the present case, the plaintiff seeks a declaratory judgment in counts two and three of the complaint "that the procedures set forth in Exhibit A are woefully deficient" under the fourth amendment of the United States constitution and article one, § 8 of the Connecticut constitution and prays for "[a] declaratory judgment that holds that the procedures being employed against the [p]laintiff deprived the [p]laintiff of his due process protections ... and are therefore void." The plaintiff’s claims are not moot because actual controversy about Western’s procedures exists and it would be possible for relief to be granted in the form of a declaratory judgment that the procedures violated the plaintiff’s rights. Thus, the motion to dismiss counts two and three of the plaintiff’s complaint will not be granted on the ground of mootness.
The plaintiff alleges in count two that the defendants violated his due process rights guaranteed under the fourteenth amendment of the United States constitution, however, the count concludes by requesting a declaratory judgment that the procedures followed were woefully deficient in accordance with the fourth amendment of the United States constitution. It is evident that the plaintiff intended to request a declaratory judgment that the procedures followed were woefully deficient in accordance with the fourteenth amendment of the United States constitution. In addition the defendant has not raised this as an issue for purposes of their argument.
B. Sovereign Immunity
"[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.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 739 (2011). "[A] motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116 A.2d 106 (2006).
The defendants argue that the claims against a state agency and against the official capacity defendants are barred by sovereign immunity. The defendants also argue that there is only one relevant exception in this case to overcome the bar of statutory immunity, that the state has statutorily waived sovereign immunity, and that it does not apply in this case because the plaintiff has not received permission from the claims commissioner to bring this suit for monetary damages. The plaintiff argues that counts two and three in the complaint are requests for declaratory judgment, not claims for monetary damages, and states that a plaintiff may circumvent sovereign immunity in an action for declaratory or injunctive relief when the state office or officers acted in excess of statutory authority or pursuant to a statue that is unconstitutional. The plaintiff argues that the Western officers were acting outside of their powers when they ignored the plaintiff’s request for a declaratory proceeding to take place before an investigation was completed.
The complaint does not explicitly state if the individual defendants are being sued in their official capacities individual capacities, or both. Nevertheless, the plaintiff confirmed during oral argument on April 22, 2019, that the individual defendants are sued only in their official capacities.
In an order dated April 22, 2019, the court, Cohn, J, denied the motion to dismiss, without prejudice as to the relief sought by was of a declaratory judgment as found in counts two and three, and the present case was transferred to the civil docket for adjudication of the declaratory judgment issues in counts two and three. The defendants argue that counts two and three involve claims for monetary relief and the plaintiff argues that counts two and three are for declaratory judgments only. In Leng v. Southern Connecticut State University, Superior Court, judicial district of New Haven, Docket No. CV-15-6053581-S (January 18, 2017, Wilson, J., the court "consider[ed] separately the plaintiff’s claims for monetary and injunctive relief as they pertain to" the relevant count in the complaint, and cited to Barde v. Board of Trustees, 2017 Conn. 59, 60-61, 539 A.3d 1000 (1998), explaining that the court in that case "treat[ed] plaintiff’s claims for damages and injunctive relief separately and require[ed] plaintiff to proceed through claims commissioner for claims for damages and to establish that claim falls within second or third exception to sovereign immunity for injunctive or declaratory relief." Leng, supra, Superior Court, Docket No. CV 15-6053581-S. Similarly, throughout this memo, this court will consider separately the claims for damages and the claims for declaratory judgment for counts two and three in the complaint.
In Barde v. Board of Regents of Regional Community Colleges, supra, 207 Conn. 59, the Connecticut Supreme Court provided: "[W]e have long recognized the ... common law principle [the doctrine of sovereign immunity] that the state cannot be sued without its consent ... However, [i]n a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts ... The allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests." (Citations omitted; internal quotation marks omitted.) Id., 64. "[T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity; (2) when an act 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, ... (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." Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).
The plaintiff does not allege that his claims fall within the first exception to sovereign immunity.
The Supreme Court explained in Miller v. Egan, 265 Conn. 301, 315, 828 A.2d 549 (2003), that the exception to the doctrine of sovereign immunity for actions seeking declaratory or injunctive relief against a state officer for conduct in excess of statutory authority does not apply to claims against the state for monetary damages. Id., 315. In Columbia Air Services, Inc., supra, 293 Conn. 342, the Supreme Court explained that the plaintiff failed to present claims to the claims commissioner prior to filing the action, and therefore, the trial court properly granted the motion to dismiss as it related to those claims "[b]ecause exhaustion of this alternative means of relief is a prerequisite to the trial court’s jurisdiction to consider any of the plaintiff’s claims for monetary damages." Id., 352. As a result, the court explained that it would "address only whether the plaintiff’s claims for declaratory and injunctive relief fall within the second and third exceptions to the doctrine of sovereign immunity." Id.
In the present case, the plaintiff alleges in counts two and three that his due process rights have been violated. The plaintiff has not alleged that he presented the claims to the claims commissioner prior to filing the action, and therefore, this court will not consider claims for monetary damages in relation to counts two and three. Rather, this court will only analyze whether the plaintiff’s request for declaratory judgment in counts two and three of the complaint meets the requirements for the second and third exceptions to the doctrine of sovereign immunity.
a. Second Exception to Sovereign Immunity
This court will begin by analyzing the second exception, which is "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," for counts two and three in the complaint. Columbia Air Services, Inc., supra 293 Conn. 349. "To sustain a claim under the second exception to sovereign immunity, wherein an action for declaratory or injunctive relief based on a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights ... the allegations of the complaint and the facts in issue must clearly demonstrate an incursion upon constitutionally protected interests." (Citation omitted.) Id., 353-54.
Relevant to this analysis is the defendants’ argument that the plaintiff’s claims for a declaratory ruling fail because the plaintiff has not alleged a constitutionally protected right was violated or may be violated, and Western fulfilled the plaintiff’s due process rights by placing the plaintiff on administrative leave, providing him notice of the allegation, and asking him to provide his own statement of what had occurred. The plaintiff argues that the allegations of the complaint are that the defendants’ actions deprived the plaintiff of his due process rights and his otherwise stellar reputation has been devastated without having his due process rights afforded to him.
"Our due process inquiry takes the form of a two part analysis. [W]e must determine whether [the plaintiff] was deprived of a protected interest, and, if so, what process was [he] due." (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 499, 778 A.2d 33 (2001). "Accordingly, we first determine whether the plaintiff was deprived of a protected interest. To have a property interest ... a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it ... a Property interest, of course, are not created by the [c]onstitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law- rules or understandings that secure certain benefits and that support claims or entitlement to those benefits ... If a claimant does not establish a constitutionally protected interest, the due process analysis ceases because no process is constitutionally due for the deprivation of an interest that is not of constitutional magnitude." (Citations omitted; internal quotation marks omitted.) Page v. State Marshal Commission, supra, 108 Conn.App. 676-77. "Procedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment ... This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest ... The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." (Citations omitted; internal quotation marks omitted.) Mathews v. Elridge, 424, U.S. 319, 332-33, 96 S.Ct. 893, 901-02 (1976).
In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701 (1972), the United States Supreme Court explained that "where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential" and in a matter involving an assistant professor without tenure not being rehired, "there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma ... that foreclosed his freedom to take advantage of other employment opportunities." (Internal quotation marks omitted.) Id., 573. "[I]n [Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155 (1976)] ... the Court held that damage to one’s reputation is not by itself sufficient to invoke the procedural protection of the Due Process Clause ... Rather, the Court held, loss of reputation must be coupled with some other tangible element in order to rise to the level of a protectable liberty interest ... [The Second Circuit has] previously interpreted this holding to mean that stigma plus is required to establish a constitutional deprivation." (Citation omitted; internal quotation marks omitted.) Valmonte v. Bane, 18 F.3d 992, (2d Cir. 1994). "[D]amage to reputation alone is insufficient to establish a claim for harm to a liberty interest ... [A] cognizable claim will lie [only] if a plaintiff can show loss of reputation plus some serious additional harm, such as loss of employment, as a result of defamatory remarks by a government official." (Citations omitted; internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 437, 673 A.2d 514 (1996). "Stigma plus refers to a claim brought for injury to one’s reputation (the stigma) coupled with the deprivation of some tangible interest or property right (the plus), without adequate process." (Internal quotation marks omitted.) DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003). "[T]o fulfill the requirements of a stigma-plus claim arising from termination from government employment, a plaintiff must first show that the government made stigmatizing statement about him ... Second, a plaintiff must prove these stigmatizing statements were made concurrently in time to plaintiff’s dismissal from government employment." (Citations omitted; internal quotation marks omitted.) Patterson v. Utica, 370 F.3d 322, 330 (2d Cir. 2004). Nevertheless, "the availability of adequate process defeats a stigma plus claim." Segal v. New York, 459 F.3d 207, 213 (2d Cir. 2006).
In the present case, the plaintiff alleges that the procedures failed to provide the plaintiff with proper notice of the accusations against him, and they failed to provide the plaintiff with an opportunity to be heard in a meaningful manner. However, counts two and three also allege that the plaintiff was hand served notice containing a number of allegations against him by Minier-Delgado, including procedural information on the conduct of her investigation and the plaintiff attached this information to the complaint as Exhibit A. Moreover, the defendants’ exhibits submitted with the motion to dismiss include Exhibit 2, the affidavit of Western’s Chief Human Resources Officer Fred Cratty, which states that the plaintiff had a right to appeal the complaint procedure being used by the Office of Diversity and Equity to an appeal panel. He did not exercise his right to contest the procedures being used to investigate the student’s claim of sexual harassment. His affidavit also states that the plaintiff was not subject to discipline and that at the time the investigation was completed, the plaintiff had completed his one semester contract and was no longer an employee who could be disciplined by Western. In addition, Exhibit 3, the affidavit of Minier-Delgado, explains that she scheduled a meeting with the plaintiff for October 23, 2017, to advise on the filed complaint, serve the plaintiff notice, and advise on the complaint procedures. Minier-Delgado’s affidavit also states that she informed the plaintiff that a scheduled interview would be held to get his side of the story. Minier-Delgado’s affidavit further provides that she received an email from the plaintiff’s attorney on November 17, 2017, that the scheduled interview must be postponed.
Counts two and three of the complaint allege a violation of the plaintiff’s due process rights under the United States constitution and the Connecticut constitution. Nevertheless, the plaintiff’s complaint alleges that he received notice. Moreover, the complaint fails to allege facts that demonstrate the plaintiff’s due process rights were violated. Furthermore, in regards to a stigma-plus claim, though the plaintiff alleges damage to his reputation, he does not allege that he was terminated from government employment, and he does not allege facts that demonstrate he lacks adequate process. For the foregoing, the plaintiff fails to demonstrate an incursion on a constitutionally protected interest.
b. Third Exception to Sovereign Immunity
This court will also analyze the third exception, which is "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," for counts two and three in the complaint. Columbia Air Services, Inc., supra, 293 Conn. 349. The third exception "permits a plaintiff to seek declaratory or injunctive relief based on a substantial claim that a state official has acted in excess of his statutory authority and has therefore violated a right of the plaintiff ... A claim under this exception must do more than make a conclusory allegation that the defendants’ conduct was in excess of their statutory authority, it must allege facts that reasonably support such an allegation." (Citation omitted.) Id., 354.
Counts two and three of the complaint allege a violation of the plaintiff’s due process rights under the United States constitution and the Connecticut constitution. The plaintiff alleges that the procedures used by Minier-Delgado failed to afford the plaintiff due process protections and that the procedures afforded to Clark violate federal and state case law. The plaintiff alleges that Clark had the full power to terminate the plaintiff’s employment without a pre-deprivation hearing, but does not allege that this took place. As a result, the plaintiff has failed to allege that Clark as a state official acted in excess of his statutory authority and has therefore violated a right of the plaintiff. Though the plaintiff argues that Minier-Delgado violated the plaintiff’s due process rights, the plaintiff has not provided a factual basis to support the applicability of this exception.
Based upon the above, the court finds that the monetary claims against the state are barred by sovereign immunity. The plaintiff has failed to demonstrate that the exceptions to sovereign immunity apply to the declaratory judgment claims in counts two and three. The motion to dismiss is granted as to count three on the ground of sovereign immunity for both the monetary claim and the declaratory claim. As to count two, involving due process under the United States constitution additional analysis must be completed to determine whether the motion to dismiss count two may be granted on the ground of sovereign immunity. This is provided in section III.
III. Federal Due Process Claim Eleventh Amendment of the United States Constitution and Sovereign Immunity (Count Two)
The defendants argue that the eleventh amendment of the United States constitution bars lawsuits against a state or its agencies unless there is an explicit congressional waiver of the state’s immunity in the federal law at issue, and claims for monetary damages against a state actor acting in his official capacity unless there is a waiver of this immunity by statue or the state consents to the suit. The defendants further argue that the complaint contains no allegation that the state of Connecticut consented to a suit for claims brought against Western or the individual defendants in their official capacity, and therefore, any 42 U.S.C. § 1983 suits brought against the state are proscribed by the eleventh amendment. Accordingly, the defendants argue that count two must be dismissed. The plaintiff argues that he is only seeking a declaration by the court that the state’s actions violated the state and federal constitutions. The plaintiff also argues that because the lawsuit seeks only declaratory relief under § 1983, the defendants’ argument, which is that the court should go outside of the claims and find that there is a claim for monetary damages thereby eliminating the court’s jurisdiction, is inappropriate.
In Part D of the defendants’ memorandum in support of their motion to dismiss, the defendants state in the concluding sentence of the section that the eleventh amendment and immunity bar relief against the defendant and count three must be dismissed. However, it is evident that the defendants intended to write that count two must be dismissed.
The fourteenth amendment of the United States constitution provides: "No state shall deprive any person of life, liberty, or property, without due process of law." The eleventh amendment of the United States constitution bars citizens from suing their states without the consent of the states. See generally Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504 (1890). "A state, as an entity having immunity under the eleventh amendment to the United States constitution is not a person within the meaning of § 1983 and thus is not subject to suit under § 1983 in either federal court or state court ... This rule also extends to state officers sued in their official capacities." (Citation omitted.) Miller v. Egan, supra, 265 Conn. 311. "A state official sued in his official capacity for monetary damages is also not subject to suit under § 1983 ... The United States Supreme Court in [Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304 (1989)] recognized, however, on the basis of its prior decisions in Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099 (1985), and Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908), that a state official in his or her official capacity, when sued for injunctive relief is not treated as actions against the State." (Citations omitted, internal quotation marks omitted.) Braham v. Newbould, 160 Conn.App. 294, 308-09, 124 A.3d 977 (2015).
To determine "whether the doctrine of [Ex parte Young, supra, 209 U.S. 123] avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." (Internal quotation marks omitted.) Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 645, 122 S.Ct. 1753 (2002). "[T]he [Ex parte Young, supra, 209 U.S. 123] doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to the supreme authority of the United States ... [T]he Young doctrine rests on the need to promote the vindication of federal rights." (Citation omitted; internal quotation marks omitted.) Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 195, 104 S.Ct. 900 (1984). The exception to eleventh amendment immunity is "narrow: It applies only to prospective relief, does not permit judgments against state officers declaring that they violated federal law in the past ... and has no application in suits against the States and their agencies, which are barred regardless of the relief sought." Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684 (1993). As the court noted in National Audubon Society, Inc. v. Davis, 207 F.3d 835, 847-48 (9th Cir. 2002), "retrospective declaratory relief would declare that the State defendants committed constitutional violations in the past; prospective relief would declare that likely future actions are unconstitutional." Roberts v. New York, 911 F.Supp.2d 149 (N.D.N.Y. 2012).
In making the determination to grant a defendant’s motion to dismiss the plaintiff’s claims requesting declaratory relief on the ground of sovereign immunity, the court in Orr v. Department of Corrections, Superior Court, judicial district of New Haven, Docket No. CV-18-5042428-S (February 15, 2019, Ozalis, J.) explained: "[f]or the court to have jurisdiction in this case under the sovereign immunity exception for unconstitutional acts, the plaintiff must clearly allege facts establishing a declaratory judgment claim for prospective relief. Pursuant to the [ Ex parte Young, supra, 209 U.S. 123] inquiry, this court has reviewed the allegations in the plaintiff’s complaint which allege violations of the fourth and eighth amendments of the United States constitution pursuant to Title 42 of the United States Code, § 1983." See e.g. Burston v. Dodak, Docket No. 1:90-CV-931, 1991 U.S. Dist. LEXIS 8175, *8-9 (W.D.Mich. June 11, (1991) (determining that the "allegations of the plaintiff’s amended complaint" regarding due process "do not establish an ongoing violation of federal law ... [and] [s]ince there is no ongoing violation of federal law, the [e]leventh [a]mendment prohibits this [c]ourt from granting the requested injunctive relief" [citations omitted]).
In the present case, the plaintiff has not alleged that the state has waived sovereign immunity. Therefore, any claims seeking monetary damages in count two would be dismissed on the ground of sovereign immunity. Furthermore, the court previously determined that the plaintiff’s allegations, if proven, fail to demonstrate that the exceptions to sovereign immunity are applicable, and the state has immunity under the eleventh amendment to the United States constitution. Thus, the declaratory judgment claim in count two is dismissed on the ground of sovereign immunity for Western.
Nevertheless, it is necessary to determine in the present case whether Minier-Delgado and Clark in their official capacity as state officers are immune from the claims seeking declaratory relief in count two. In count two of the complaint, the plaintiff requests "[a] declaratory judgment that the procedures set forth in Exhibit A are woefully deficient" under the fourth amendment of the United States constitution. Furthermore, the plaintiff prays for "[a] declaratory judgment that holds that the procedures being employed against the [p]laintiff deprived the [p]laintiff of his due process protection under the Fourth Amendment to the United States Constitution ... and are therefore void."
See footnote #1 as to the allegation referring to the Fourth Amendment.
Id.
The request for declaratory relief does not meet the narrow exception to the eleventh amendment in section II, part (a) of this memorandum, the plaintiff fails to allege in the complaint that a constitutionally protected right was violated or may be violated, and therefore fails to allege an ongoing violation of federal law. Thus, the declaratory judgment claim in count two is dismissed on the ground of sovereign immunity for Minier-Delgado and Clark. Therefore, the defendants’ motion to dismiss count two is granted on the ground of sovereign immunity.
IV. State Due Process Claim Article 1, § 8 of the Connecticut Constitution and a Private Cause of Action (Count Three)
In regard to count three, the defendants argue that the court lacks subject matter jurisdiction because the plaintiff cannot make a valid freestanding claim under the Connecticut constitution and the plaintiff states a private cause of action. The plaintiff argues that he is not seeking monetary relief, but rather, a declaratory judgment and argues that General Statutes § 52-59 permits this court to declare rights upon request for a declaration.
The court in Salas v. Enfield, United States District Court, Docket No. 3:14 CV 01883 (WWE) (D.Conn. August 30, 2015), provides: "Defendants argue that Connecticut courts do not recognize private causes of action for money damages under Article One Sections 8 and 20 of the Connecticut constitution. Indeed, this [c]ourt has held that no private cause of action for monetary damages exists pursuant [to] the due process and equal protection provisions (Sections 8 and 20 respectively) of the Connecticut Constitution ... Accordingly, these claims will be dismissed." (Citations omitted.) Id. In Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 640 A.2d 101, the plaintiffs sought to obtain a declaratory judgment that a statute was unconstitutional and the Connecticut Supreme Court determined that the statute violated substantive due process under article 1, § 8, of the Connecticut constitution. Id., 313.
In the present case, it is unnecessary to address this argument because the court is granting the motion to dismiss counts two and three on the ground of sovereign immunity. However, the court will address this argument for completeness. This court determined in section II that the plaintiff has not alleged that he presented the claims to the claims commissioner prior to filing the action and therefore, the court will not consider claims for monetary damages in relation to counts two and three. In addition, this court will also not consider claims for monetary damages in relation to count three because Connecticut courts do not recognize private causes of action for money damages under article 1, § 8 of the Connecticut constitution.
The declaratory judgment claim relevant to count three in the complaint is not barred by this argument raised by the defendant because the argument is specific to claims for monetary damages. Nevertheless, this court has already determined that the plaintiff’s declaratory judgment claim relevant to count three has been barred by sovereign immunity.
V. Ripeness
The defendants argue that the plaintiff’s claims are not justiciable because the plaintiff did not exhaust remedies available at Western before filing suit. Though this argument was not properly briefed by the defendants’ memorandum in support of defendants’ motion to dismiss filed on August 8, 2019, and in the defendants’ reply memorandum in support of the defendants’ motion to dismiss filed on September 12, 2019, "[i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time ... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings." (Internal quotation marks omitted.) Stones Trial, LLC v. Weston, 174 Conn.App. 715, 736, 166 A.3d 59 (2017).
"Under our exhaustion of administrative remedies doctrine a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ... In the absence of exhaustion of that remedy the action must be dismissed." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011). "It is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in [a] collective bargaining agreement ... Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction." Hunt v. Prior, supra, 236 Conn. 431.
Nevertheless, the Connecticut Supreme Court recently overruled its prior holdings that "exhaustion of state administrative remedies is a jurisdictional prerequisite to the filing of a § 1983 action for injunctive relief." Mangiafico v. Farmington, 331 Conn. 404, 408, 204 A.3d 1138 (2019). In Mangiafico v. Farmington, supra, 331 Conn. 404, the Connecticut Supreme Court held that "a plaintiff is not required to exhaust administrative remedies prior to filing a § 1983 claims in state court, regardless of the type of relief sought." Id., 408. The court determined that the plaintiff’s claims for lack of jurisdiction would be reversed because he did not have to exhaust the available state administrative remedies before he filed a § 1983 claim in state court. Id., 428. Of note, the court explained that the "holding does not affect the disposition of the plaintiff’s state law claims, which are not at issue in this certified appeal." Id., 428, n.12.
In the present case, the plaintiff does not allege that he exhausted his administrative remedies, including those available through the AAUP Collective Bargaining Agreement Appendix F, prior to filing this action. Accordingly, the motion to dismiss count three, involving due process under the Connecticut constitution, is granted on the ground that the plaintiff has failed to exhaust his administrative remedies. In regards to count two, involving due process under the United States constitution, the 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 v. Farmington, supra, 331 Conn. 408. Thus, the motion to dismiss count two is not granted on the ground that the plaintiff has failed to exhaust his administrative remedies.
VI. Declaratory Ruling: Constitutionally-Protected Right and Freestanding Claim for Constitutional Violation
The defendants argue that the plaintiff’s claims for a declaratory ruling fail because the plaintiff fails to allege a constitutionally protected right was violated or may be violated. The defendants also argue that the plaintiff cannot state a freestanding claim for a constitutional violation. Further the defendants argue that the plaintiff has not alleged a due process violation because the plaintiff has no protected property right to stop an investigation required by Title IX of his alleged sexual harassment of a student. The plaintiff argues that the allegations of the complaint are that the defendants’ actions deprived the plaintiff of his due process rights, which has had catastrophic implications on his employment, and a proper cause of action is stated. The plaintiff also argues that it is untrue that the plaintiff was trying to stop an investigation by Title IX, and, the plaintiff wanted to be vetted and cleared of the charges in accordance with the due process standards under the United States constitution and the Connecticut constitution.
The court grants the motion to dismiss counts two and three of the complaint on the grounds of sovereign immunity and the plaintiff’s failure to exhaust his administrative remedies. Thus, it is unnecessary for this court to rule on the ground that the plaintiff’s claims for a declaratory ruling fails because the plaintiff fails to allege a constitutionally protected right was violated or may be violated. Of note, the defendants’ argument that the plaintiff fails to allege a constitutionally protected right was violated or may be violated is pertinent to this court’s analysis of the second exception to sovereign immunity, which this court addressed in section II, part (a) of this memorandum.
CONCLUSION
For the foregoing reason, it is submitted that the defendants’ motion to dismiss counts two and three of the plaintiff’s complaint for lack of subject matter jurisdiction is granted. For count two, the defendants’ motion to dismiss is granted on the grounds of sovereign immunity. For count three the motion to dismiss is granted on the grounds of sovereign immunity and the plaintiff’s failure to exhaust administrative remedies.