Opinion
KNLCV176032487S
09-10-2018
Michael DEVINE, Administrator of the Estate of Timothy Devine v. Louis FUSARO, Jr. et al.
UNPUBLISHED OPINION
OPINION
Knox, J.
The defendants move to dismiss this action entirely on the grounds that the court lacks subject matter jurisdiction. Practice Book § 10-30. The defendants present two arguments: 1) sovereign immunity bars the action and deprives the court of jurisdiction; or 2) statutory immunity under General Statutes § 4-165 bars the action and deprives the court of jurisdiction.
FACTS
This action arises from the death of plaintiff’s decedent Timothy Devine, who used a gun in his possession and shot himself on July 24, 2012 after a confrontation and standoff with law enforcement. The plaintiff, Michal Devine as administrator of Timothy Devine’s estate, filed a one-count complaint, dated November 21, 2017. In the plaintiff’s complaint, the plaintiff alleges that, at the relevant time, the four individual defendants: Louis Fusaro, Steven Rief, Kevin Cook, and Michael Avery were employed as law enforcement officers for the state police tactical unit. The plaintiff alleges wrongful death due to the recklessness or gross negligence of the defendants. The defendants filed their motion to dismiss on February 13, 2018. The plaintiff filed a proposed amended complaint, dated March 15, 2018. (# 107.00).
The plaintiff filed an amendment as of right on January 12, 2018 (# 101.00).
See footnote 3 of this memorandum.
DISCUSSION
A motion to dismiss may be used to challenge the court’s subject matter jurisdiction. Practice Book § 10-30(a)(1). "[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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "[A]s soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made." Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991). "Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court’s subject matter jurisdiction"; (internal quotation marks omitted) Lawrence v. Weiner, 154 Conn.App. 592, 597, 106 A.3d 963, cert. denied, 315 Conn. 925, 109 A.3d 921 (2015); and constitute a proper basis for granting a motion to dismiss. Martin v. Brady, 261 Conn. 372, 377, 802 A.2d 841 (2002). "[S]overeign immunity issues are resolved prior to trial." Edgerton v. Clinton, 311 Conn. 217, 227 n.9, 86 A.3d 437 (2014).
"The burden rests with the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that the court has subject matter jurisdiction to determine the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). In analyzing this case, as any case with a jurisdictional based motion to dismiss, the court "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." (Internal quotation marks omitted.) Cuozzo v. Orange, 315 Conn. 606, 615, 109 A.3d 903 (2015).
Common-Law Doctrine of Sovereign Immunity
Sovereign immunity entitles the state to immunity not just from liability, but also from suit. "The doctrine of sovereign immunity ‘protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable.’ " Tuchman v. State, 89 Conn.App. 745, 751, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005); see also Hicks v. State, 297 Conn. 798, 801, 1 A.3d 39 (2010) (sovereign immunity "operates as a strong presumption in favor of the state’s immunity from liability or suit" [internal quotation marks omitted] ).
The plaintiff argues that sovereign immunity is inapplicable because the claims are against individuals, not the state. The defendants posit that "[t]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent." (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 308, 828 A.2d 549 (2003). Rather, "[t]he vital test is to be found in the essential nature and effect of the proceeding." (Internal quotation marks omitted.) Id.
The parties each argue their respective positions as to whether the lawsuit is an action seeking damages against the defendants in their individual or official capacities under the test set forth in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975). In Spring, the Supreme Court established the following four criteria for determining whether a state employee has been sued in his official capacity: "(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." Id., 568. The plaintiff concedes the first criterion in that the defendants were state officials at the time of the incident.
The second criterion- that the suit concerns some matter in which that official represents the state- is met. First, the plaintiff alleges the following in his amended complaint: "At all times relevant hereto, Defendant Louis Fusaro, Jr. (hereinafter ‘Fusaro’) is a citizen of Connecticut, whose address is in care of the Connecticut State Police, 1111 Country Club Road, Middletown, Connecticut, 06457, and who was employed as a law enforcement officer by the State of Connecticut and acting under color of law." The plaintiff repeats this allegation, substituting the name of each defendant in paragraphs 5, 6, and 7, respectively. Thus, these allegations sufficiently show that the individual defendants represent the state. Although this is sufficient to satisfy the second criterion, there is a separate base to do so.
After the defendants filed the motion to dismiss, the plaintiff filed a request to amend the amended complaint by withdrawing portions of paragraphs 4-7, including the allegation that each officer "was employed as a law enforcement officer by the State of Connecticut and acting under color of law." However, the defendants had already filed their motion to dismiss. The plaintiff’s attempt to withdraw those allegations, which was a belated attempt to circumvent one of the arguments in the defendants’ motion to dismiss, is improper because "as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made." Gurliacci v. Mayer, supra, 218 Conn. 545. Accordingly, the court must rule on the defendants’ motion with the amended complaint (# 102), including all of the allegations in paragraphs 4-7, being the operative complaint.
The additional factual allegations all concern the defendant’s acting in their official police functions. The plaintiff alleges that the City of Groton Police Captain Thomas Davoren requested the presence of the State Police Tactical Unit and the four defendants responded to the scene as members of and a part of the State Police Tactical Unit . Thus, the second criterion is further met.
Nevertheless, the plaintiff relies on the following allegation to contest that those individuals were not officials representing the state: "The Defendants are sued in their individual capacities." However, this is a conclusory statement of law, which is inconsistent and unsupported by the remaining allegations of the complaint. The interpretation of pleadings is a question of law for the court. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). The court interprets the pleadings, based on its factual allegations, to allege a cause of action against the defendants based on their conduct as law enforcement officers, not as private individuals. If the court were to allow the suit to proceed on the basis of the plaintiff’s assertion, which is inconsistent with the factual allegations of the complaint, there would be no need for a Spring analysis. Thus, for the above-stated reasons, the second criterion is met. This action concerns some manner in which the defendants were acting in their capacity as members of the State Police Tactical Unit, and, therefore, represented the state.
The third criterion requires that the State of Connecticut be the real party against whom relief is sought. This criterion is met here. The plaintiff’s claims arise from the injuries allegedly caused by the defendants’ conduct that occurred during and as part of their official duties as state employees. The respective defendants either gave or followed commands as part of that State Police Tactical Unit to use less-than-lethal force on Thomas Devine. Thus, they acted in their official capacities, implicating the state.
Nevertheless, the plaintiff argues that it is entirely irrelevant that the individuals were either giving or obeying commands at the scene of the incident, but the plaintiff has put those facts before the court in its pleading. See Boone v. William W. Backus Hospital, supra, 272 Conn. 559. Similarly, the plaintiff argues that the "existence of a hierarchy or command system within the Defendants (sic) does not require that this Court find the acts commanded were official acts of the state." However, to do so, this court would need to ignore the allegations that the defendants were acting as responding officers of the State Police Tactical Unit.
The plaintiff alleges that after being fired upon with less-than-lethal force, Thomas Devine, who was in possession of a handgun, used the gun on himself, causing his death. In using the less-than-lethal force, the officers were acting in their official capacity as members of the State Police Tactical Unit. See Doe v. East Hartford Board of Education, Superior Court, judicial district of Hartford, Docket No. CV-16-5041837-S (January 2, 2018, Peck, J.T.R.) (third criterion met because complaint alleged reckless disregard by DCF worker in official capacity). Thus, the third criterion is met.
On the fourth criterion, the court must examine the complaint with regard to whether the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability. The court notes that this criterion applies where a judgment is "nominally against the official." Spring v. Constantino, supra, 168 Conn. 568. Although this action may be nominally against the four officers in name, it is based on the allegations of the complaint not nominally against these officers in any other capacity other than as members of State Police Tactical Unit. For this reason, it would necessarily impact how Connecticut police respond to similar situations, including where an armed individual is occupying public property, which, in this case, was a state university. Thus, a judgment adverse to the defendants would control the activities of its law enforcement officers. The fourth criterion is met. Therefore, with all four criteria satisfied, the plaintiff has sued the defendants in their official capacities. They are subject to sovereign immunity.
Nevertheless, the court must examine whether any of the exceptions to sovereign immunity applies. See Hicks v. State, supra, 297 Conn. 801. "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 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 ... 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." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009). "In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Internal quotation marks omitted.) Id., 350.
As to the first exception, there is no legislative waiver of sovereign immunity here. There is no allegation that alleges a waiver of the state’s immunity by the state or the legislature. Absent an allegation of waiver, the first exception does not apply.
The plaintiff filed a claim with the Claims Commissioner to waive Connecticut’s sovereign immunity, but subsequently withdrew the claim without receiving permission to sue the state. See Order, Office of the Claims Commissioner, "Estate of Timothy Patrick Devine v. State ," Docket No. 23367 (December 2, 2010). The plaintiff did not contest this at oral argument.
The second and third exceptions similarly do not apply here. The plaintiff’s amended complaint seeks monetary damages, which do not encompass either exception. Moreover, for a claim under the second and third exception to succeed, the plaintiff must allege an incursion upon constitutionally protected interests or facts to show the defendants acted in excess of their statutory authority. Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 350. The plaintiff has not made such allegations in its amended complaint. Thus, the second and third exceptions do not apply.
Thus, no exception to sovereign immunity applies and the defendants are protected by sovereign immunity. Because the court lacks subject matter jurisdiction due to sovereign immunity, the court does not reach the claim that the action is barred by statutory immunity.
CONCLUSION
Therefore, the motion to dismiss is granted on the ground that the court lacks subject matter jurisdiction because the plaintiff’s action is barred by sovereign immunity.