Opinion
No. AANCV106003207S
June 3, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#109)
The plaintiff, Michael DeLauro, commenced this action by service of a summons and complaint on the defendant, Kim Soto, on May 5, 2010. The plaintiff alleges the following facts in his seven-count amended complaint, dated October 6, 2010. On March 11, 2010, the plaintiff was employed by the state judicial branch as a court services officer in the Bridgeport Juvenile Court. The defendant is an employee of the Connecticut Department of Children and Families (DCF). On March 11, 2010, the defendant brought a juvenile, committed to the custody of DCF, to the Bridgeport Juvenile Court for a court-ordered psychiatric evaluation and left the child at the courthouse prior to the evaluation.
Although both parties' briefs address all seven counts of the plaintiff's amended complaint, the parties agreed at oral argument that the defendant's motion to dismiss would be limited to counts six and seven. Accordingly, this memorandum addresses only counts six and seven, which state causes of action for common-law vexatious litigation and statutory vexatious litigation pursuant to General Statutes § 52-586.
At 1:07 p.m., the psychiatrist informed the plaintiff that the evaluation was complete and that the defendant had left the juvenile with the psychiatrist. After several unsuccessful attempts to contact the defendant or her supervisor by phone, the plaintiff brought the juvenile into the clerk's office while continuing to attempt to contact the defendant. At 1:40 p.m., the defendant arrived at the court to pick up the child. The plaintiff informed the defendant that she could not leave a committed child for any reason, that he is a mandated reporter and that he may have to make a hotline referral.
In count six, for vexatious litigation, the plaintiff alleges that on March 15, 2010, the defendant requested the initiation of an investigation into an alleged incident of workplace violence committed by the plaintiff on the defendant. The plaintiff alleges that this complaint was commenced as retaliation against him for confronting the defendant about her unprofessional conduct and that there was no probable cause to initiate the investigation. After the defendant's complaint was reviewed, it was terminated in the plaintiff's favor and was deemed unsubstantiated. In count seven, for statutory vexatious litigation, the plaintiff alleges that the defendant filed the false complaint with malicious intent to vex and trouble the plaintiff.
The defendant filed the present motion to dismiss on November 16, 2010, and a memorandum of law in support thereof on December 2, 2010. The plaintiff filed a memorandum in opposition to the motion to dismiss on December 17, 2010. On January 14, 2011, the defendant filed a reply memorandum. The court heard oral argument on this matter at short calendar on May 16, 2011.
"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.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, `it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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 most favorable to the pleader.'" Conboy v. State, supra, 292 Conn. 651.
A
The defendant moves to dismiss counts six and seven of the plaintiff's amended complaint on the ground that those claims are barred by statutory immunity pursuant to General Statutes § 4-165. Specifically, the defendant argues that the plaintiff has failed to plead sufficient facts to establish that the defendant acted outside the scope of her employment or that her conduct was wanton, reckless or malicious.
The defendant argues that her conduct was within the scope of her employment as it was in furtherance of a legitimate state purpose: the reporting of workplace violence in compliance with relevant state and DCF policies. In her memorandum in support of the motion to dismiss, the defendant quotes several excerpts from the governor's order on workplace violence and the DCF policy on workplace violence, emphasizing that state employees are obligated to report such incidents. The plaintiff responds by arguing that General Statutes § 4-165 does not bar any of the plaintiff's claims against the defendant in her individual capacity.
General Statutes § 4-165 provides state officers with qualified immunity in certain circumstances. Section 4-165(a) provides in relevant part: "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 her duties or within the scope of his or her employment." "This type of qualified statutory immunity `involves immunity from suit and is intended to permit courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits.' . . . When, as here, the motion to dismiss raises the issue of statutory immunity under § 4-165, the court must `examine the pleadings to decide if the plaintiff has alleged sufficient facts . . . with respect to personal immunity under § 4-165, to support a conclusion that the defendant[s] [were] acting outside the scope of [their] employment or wilfully or maliciously.'" Kelly v. Albertsen, supra, 114 Conn.App. 606.
The Supreme Court considered the meaning of "wanton, reckless or malicious" in Shay v. Rossi, 253 Conn. 134, 749 A.2d 1147 (2000), overruled on other grounds, Miller v. Egan, 265 Conn. 301, 327, 828 A.2d 549 (2003). There, the plaintiffs sued police officers and DCF employees for, inter alia, intentional infliction of emotional distress stemming from the defendants' alleged conduct in pursuing an unwarranted investigation of potential child neglect and abuse. With regard to that cause of action, the plaintiffs asserted that "the neglect and abuse petitions were filed without probable cause and in the face of overwhelming evidence of the absence of abuse and neglect . . . the defendants' conclusion that neglect and abuse of the Shay children had been confirmed was without foundation, unreasonable, arbitrary, wilful, wanton, reckless and malicious, and ` designed to vindicate and legiti[mize] their handling of the Shay case which was, from the outset, unlawful, uncaring, and unnecessary.'" (Emphasis in original) Id., 173.
The Shay court stated: "`In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n 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 . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Id., 181.
In affirming the trial court's denial of the defendants' motion to dismiss, the court found that "the allegations and supporting facts adduced in the trial court were sufficient to establish that the defendants had acted with improper and self-serving motives in filing the neglect and abuse petitions . . . The motives that could be proven under the allegations . . . were that by the time the petitions were filed and by the time that the in-home supervision was ordered to continue, the defendants knew that these actions were legally and factually unjustified; that the defendants filed the petitions knowing that they were unwarranted; and that they nonetheless pursued the petitions and the in-home supervision of the family, not for the statutory purpose of protecting any of the Shay children, but in order to justify those prior unjustified actions." Id., 182.
In the present case, the plaintiff alleges that after his discussion with the defendant at the courthouse, she requested an investigation, claiming that it constituted workplace violence. The plaintiff further alleges that the defendant's claim was based on false allegations, lacked probable cause, and that it was made "as retaliation against him for confronting the defendant about her unprofessional conduct" and "with malicious intent to vex and trouble the plaintiff." The plaintiff also alleges that "[t]he complaint was reviewed, investigated and witnesses were interviewed"; that "[a] video of the interaction between the defendant and plaintiff was reviewed"; and, that "[t]he investigation of the defendant's complaint was concluded, and was terminated in the plaintiff's favor, being unsubstantiated."
These allegations, construed in favor of the plaintiff, are sufficient to plead that the defendant's conduct was wilful, reckless and malicious, because they imply that the defendant knew that her statements were untrue but that she requested a workplace violence investigation regardless. Similar to the complaint in Shay, the amended complaint in the present case contains allegations that the defendant had improper and self-serving motives in requesting the investigation, since she allegedly fabricated her allegations of workplace violence and lacked probable cause to file such a complaint.
The defendant argues in her reply brief, citing to Roman v. Dept. of Correction, Superior Court, judicial district of New Britain, Docket No. CV 05 5000278 (August 11, 2006, Shaban, J.), that the plaintiff "goes beyond the allegations of the amended complaint" in his memorandum in opposition to the motion to dismiss in order to make improper assertions about the defendant's motivations and intentions behind her conduct. It is not necessary to address this argument, however, as the complaint by itself sufficiently alleges that the defendant's actions were outside the scope of her employment and constituted wanton, reckless and malicious conduct.
The allegations in the plaintiff's amended complaint also indicate that the defendant's conduct falls outside the scope of her employment. The defendant's request for an investigation of the alleged incident, allegedly based on false allegations and with malicious intent, cannot be seen as carried out in order to fulfill the duties of her employment or to advance her employer's interests. Rather, it appears that her conduct was carried out for her own personal purposes. General Statutes § 4-165 does not bar negligence claims against state officials when an official's actions are "motivated by purely personal considerations entirely extraneous to his employer's interest." Martin v. Brady, 261 Conn. 372, 378, 802 A.2d 814 (2002); see Miller v. Egan, 265 Conn. 301, 322, 828 A.2d 549 (2003) (holding that if a state official "acts solely to further his or her own illegal scheme and not to carry out government policy, there is no reason to provide immunity from suit.").
The defendant's argument that her request for an investigation was in furtherance of a legitimate state purpose because it was in compliance with relevant state and DCF policies pertaining to workplace violence fails to acknowledge that the amended complaint alleges that the defendant's request was based on false statements. Such conduct cannot reasonably be viewed as furthering a legitimate state purpose.
The plaintiff has alleged that the defendant's actions fell outside the scope of her employment and constituted wilful, reckless and malicious conduct. Accordingly, the defendant is not entitled to statutory immunity pursuant to § 4-165.
B
The defendant also bases her motion to dismiss on the ground of absolute immunity. The defendant asserts that she is protected by absolute immunity by distinguishing the leading case of Rioux v. Barry, 283 Conn. 338, 927 A.2d 304 (2007), in which our Supreme Court held that absolute immunity does not attach to statements made in the context of quasi-judicial proceedings that provide the ground for the tort of vexatious litigation. Id., 343. The plaintiff argues that the defendant's attempt to distinguish Rioux fails, and that the holding of that case should be construed to include the facts alleged in the plaintiff's amended complaint.
"Vexatious litigation requires a plaintiff to establish that: (1) the previous lawsuit or action was initiated or procured by the defendant against the plaintiff, (2) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice; (3) the defendant acted without probable cause; and (4) the proceeding terminated in the plaintiff's favor . . . These stringent requirements provide adequate room for both appropriate incentives to report wrongdoing and protection of the injured party's interest in being free from unwarranted litigation." (Citations omitted.) Id., 347. Accordingly, although one may be entitled to absolute immunity where his or her claims were brought in good faith, one may be held liable for vexatious litigation where the "falsity of the information provided to a public official diminishes the private person's immunity." (Internal quotation marks omitted.) Id., 346.
In Rioux, a state police officer sued other members of the state police for, inter alia, vexatious litigation. The plaintiff's claims stemmed from several statements made by the defendants to the internal affairs division of the department, falsely accusing the plaintiff of sexual harassment. In determining that the defendants were not entitled to absolute immunity, the Supreme Court emphasized that the tort of vexatious litigation "balances the need to encourage complaints [against public officials] against the need to protect the injured party's interests . . ." Id., 347.
The defendant asserts that Rioux is distinct from the present case in that it involved a claim of sexual harassment whereas the present case involves a claim of workplace violence. According to the defendant, this distinction is significant because the DCF policy provides that state employees have a "duty" to report incidents of workplace violence, whereas the DCF policy merely "encourages" employees to report incidents of sexual harassment. The defendant also advances the public policy argument that barring absolute immunity for vexatious litigation claims stemming from reports of workplace violence would effectively "discourage state employees from reporting colleagues who may present a risk of violence in the workplace."
The defendant sets forth a lengthy discussion of the distinction between DCF policies regarding sexual harassment and workplace violence in her memorandum of law, but she does not provide any authority for the proposition that Rioux does not apply to the facts as alleged in the present case. Further, the DCF policy cannot be construed as imposing a "duty" on employees to report workplace violence incidents based on false allegations. Moreover, the defendant's public policy argument is unavailing because it does not refute the conclusion of the court in Rioux; that the elements of a cause of action for vexatious litigation, if properly pleaded, sufficiently balance the interest of ensuring legitimate workplace violence complaints against the competing interests of state officials who fear of retaliatory litigation.
Accordingly, since absolute immunity does not attach to statements made in the course of a quasi-judicial proceeding that provide the ground for the tort of vexatious litigation, the defendant is not entitled to absolute immunity.
In counts six and seven of his complaint, the plaintiff alleges that subsequent to their colloquy, the defendant sent a letter to numerous people stating that the plaintiff confronted her at the courthouse, acted in a threatening manner and placed himself within a foot of her. Although the defendant submitted this letter to the plaintiff's immediate supervisor, she also distributed it to members of the juvenile court judiciary, members of the attorney general's office who handle juvenile matters, the DCF administration and the judicial branch. The defendant argues that she is entitled to absolute immunity with regard to these letters because all of the recipients were "interested parties" and distributing this letter related to a legitimate state interest, namely, the prevention of workplace violence in accordance with state and DCF policy. This argument fails, however, as the relevant policies provide that the defendant should have reported the incident only to her immediate supervisor. Although statements made by the defendant (DCF) in the furtherance of the investigation may be privileged, absolute immunity does not attach to those statements made to officials not charged with the responsibility for investigating workplace violence claims. See Hopkins v. O'Connor, 282 Conn. 821, 849, 925 A.2d 1030 (2007) ("The decision to inform others unconnected with the process of the plaintiff's commitment even if properly motivated out of concern for their safety was in no way directed toward the achievement of the object of litigation or any other proceedings. Because that communication was not made pursuant to or in furtherance of a commitment proceeding the trial court properly concluded that the defendant was not entitled to immunity on that basis.").
For the foregoing reasons, the court denies the defendant's motion to dismiss counts six and seven of the plaintiff's amended complaint.