Opinion
No. X02 CV-07-6000945-S
October 14, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS
I. BACKGROUND
The plaintiff a former inmate at the York Correctional Institution in Niantic, Connecticut, filed this lawsuit on December 5, 2007, against the State of Connecticut, the York Correctional Institution and eleven individual members of the correctional medical staff alleging that the defendants were negligent in failing to timely recognize and diagnose the plaintiff's small bowel obstruction during a forty-eight-hour period from 1:30 p.m. on September 24, 2003, to 1:30 p.m. on September 26, 2003. She seeks money damages for the pain and discomfort she experienced during this forty-eight-hour period. The original Complaint did not allege any authorization to sue the State.
On July 1, 2008, the plaintiff filed an Amended Complaint dated June 27, 2008. A comparison of the Amended Complaint with the original Complaint shows that the two complaints are virtually identical except that the plaintiff has added a sentence to the end of paragraph 20 of Count One and Count Two of the Amended Complaint which reads: "On June 29, 2006, the Claims Commissioner granted Colon permission to sue the State of Connecticut." All counts of the Amended Complaint allege negligence against the respective parties.
On November 16, 2007, a State Marshal attempted to serve all of the individually named defendants in the case by leaving several copies of the summons and the original complaint at the Warden's office at the York Correctional Institution in Niantic, Connecticut. On November 19, 2007, the same State Marshal left a copy of the summons and original complaint with the Attorney General's Office at 55 Elm Street in Hartford. There was no actual service on any of the individual defendants. The defendants have moved to dismiss the action. The Court heard the parties on October 7, 2008, and reserved decision on the matter.
II. STANDARD OF REVIEW CT Page 16458
"The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, . . . and (4) insufficiency of service of process." Connecticut Practice Book, Section 10-31(a). "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).A Court has no jurisdiction over persons who [due to insufficient service] have not been made parties to the action before it. Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 775 A.2d 990 (2000). "The doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Federal Deposit Ins. Corp. v. Peabody N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996).
III. DISCUSSION
Initially, the defendants moved to dismiss, in part, because, if they were sued in an individual capacity, service was improper. However, the plaintiff has admitted in the pleadings that she is only suing the defendants in their official capacities as employees of the State of Connecticut. Even if the Court were to recognize the service as proper, the case against the employees would be barred by Connecticut General Statutes Section 4-165 which provides, in relevant part:
(a) No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.
The only exception to the immunity provided under Section 4-165 is if the conduct of the defendants is alleged to have been "wanton, reckless or malicious." In the present case, the Complaint contains no allegations that would suggest that the defendants acted in a wanton, reckless or malicious manner such as would bring their actions outside the scope of the statutory immunity provided by Section 4-165.
In Shay v. Rossi, 253 Conn. 134, 181, 749 A.2d 1147 (2000), the Supreme Court noted the such conduct is "more than negligence, more than gross negligence, . . . In order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them."
In the present case, the Amended Complaint does not purport to allege anything other than negligence with respect to the medical care and treatment provided to the plaintiff. Accordingly, to the extent that this lawsuit may be deemed directed against the individual defendants in their individual capacities, it is barred by the statutory immunity provided by C.G.S. Section 4-165.
Defendants further argue that the action against all defendants is barred by the doctrine of sovereign immunity.
On August 16, 2004, the plaintiff filed a Notice of Claim with the Claims Commissioner concerning the allegations of negligence which are the subject of this lawsuit. On May 26, 2006, the plaintiff filed a Certificate of Good Faith pursuant to C.G.S. Section 4-160(b) stating that she had grounds for a good faith belief that there had been negligence in her care and treatment. On June 29, 2006, the Claims Commissioner granted the plaintiff permission to sue "the state" limited to her allegations of malpractice against state medical practitioners.
Plaintiff has previously claimed that the Claims Commissioner authorized her to bring suit against the individual defendants in their official capacities as agents of the state. However, "because the state can only act through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). Suits for money damages against state employees in their official capacity have routinely been treated as suits against the state and, therefore, barred by sovereign immunity. Prigge v. Ragaglia, 265 Conn. 338, 828 A.2d 542 (2003). Also, the doctrine of sovereign immunity applies to suits against state agencies and institutional entities such as the York Correctional Institution as such suits are considered to be suits against the State. "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 Connecticut General Statutes, Sections 4-141 through 4-165. Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity." Id. at 349. It is clear that C.G.S. Sections 4-141 through 4-165 allow the Claims Commissioner to authorize suits only against the State. The letter of the Claims Commissioner in the present case only granted the plaintiff "permission to sue the state."
The "permission to sue the state" letter signed by the Claims Commissioner is dated June 29, 2006. The original Complaint in this case is dated November 9, 2007. It was served at the York Correctional Institution on November 16, 2007, and on the Connecticut Attorney General's Office on November 19, 2007.
C.G.S. Section 4-160(d) provides, in relevant part, that when the Claims Commissioner has authorized a suit against the State, "no such action shall be brought but within one year from the date such authorization to sue is granted." In the present case, the plaintiff did not bring her action for money damages against the State until more than sixteen months following the Claims Commissioner's authorization to sue. "The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law. It has deep roots in this state and our legal system in general, finding its origin in ancient common law." C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007). "Because the state has permitted itself to be sued in certain circumstances, this Court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity . . ." Martinez v. Dept. Of Public Safety, 263 Conn. 74, 82, 818 A.2d 758 (2003). Obviously, C.G.S. Section 4-160 which authorizes the Claims Commissioner to grant permission to sue the State is a statute in derogation of sovereign immunity and must be strictly construed.
In Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987), the Court discussed the distinction between time limitations that are procedural and those that are substantive and jurisdictional. In its discussion of this distinction, the Court stated:
Where, however, a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter. In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone. The courts of Connecticut have repeatedly held that, under such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised at any time, even by the court sua sponte, and may not be waived.
The doctrine of sovereign immunity had its origins in ancient common law. Through its enactment of C.G.S. Sections 4-141 though 4-165b, the legislature has created the Office of the Claims Commissioner who may hear and determine claims for money damages against the State and authorize suit against the State in those cases where the Claims Commissioner has jurisdiction to do so. The requirement, under C.G.S. Section 4-160(d), that any suits against the State authorized by the Claims Commissioner be brought within one year from the date of the authorization is a jurisdictional prerequisite to the filing of a suit for money damages against the State and it is a requirement that cannot be waived. The permission to sue the State granted by the Claims Commissioner is valid for a period of one year. If suit is not brought within the one year period, the waiver of sovereign immunity expires. In the present case, the waiver of sovereign immunity had expired by the time the plaintiff brought this action. Therefore, this suit for money damages against the State is barred by the doctrine of sovereign immunity. The case of Bloom v. Dept. of Labor, 93 Conn.App. 37, 888 A.2d 115 (2006), discusses an analogous situation. In the Bloom case, the plaintiff had filed an appeal of the denial of his unemployment benefits with the Superior Court. The appeal was dismissed. Under the statutory scheme available to the plaintiff in that case, he could have taken a timely appeal to the Appellate Court from the decision of the Superior Court. He failed to do so. Instead, the plaintiff commenced an action in Superior Court seeking an order for injunctive relief to hold a new hearing on his unemployment compensation claim. The Appellate Court noted that the legislature had waived the State's sovereign immunity from suit for the purpose of allowing judicial review relative to the denial of unemployment compensation claims pursuant to C.G.S. Sections 31-241 through 31-249. The Appellate Court held "that waiver of sovereign immunity expired when the plaintiff failed to pursue an appeal to this court from the November 23, 2001 decision." Id. at 41. Because the plaintiff's claim in Bloom was ultimately an action for money damages, the doctrine of sovereign immunity prevents his action.
The plaintiff in the present case is attempting to sue the State, and all other defendants, for money damages under an authorization and waiver of sovereign immunity that has long since expired. Therefore, the plaintiff's suit for money damages against the State is barred by the doctrine of sovereign immunity.
Plaintiff argues that, even if the Court grants the defendants' Motion to Dismiss, she will be able to reinstate the case pursuant to the Accidental Failure Statute, C.G.S. 52-592. Whatever may be the possible merits of that claim, the issue of any potential future action by the plaintiff is not before the court. The court must rule on the issue of jurisdiction which has been raised by the defendants.
IV. CONCLUSION
For the foregoing reasons, the defendants' Motion to Dismiss is granted.