Opinion
No. CV-03-101968
May 10, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiff, Martin Dickinson, is a patient at the Whiting Forensic Division of Connecticut Valley Hospital (Whiting), a maximum security facility operated by the State of Connecticut Department of Mental Health and Addiction Services (Mental Health Department). He has brought this action, in which he seeks money damages, injunctive relief and declaratory relief against the defendants, Marc Cotterell, M.D., Hilliard Foster, Ph.D, James Cassidy, Ph.D, and Garrell Mullaney, all Mental Health Department employees working at Whiting during the time of the events alleged in the complaint. He alleges that on January 28, 2003, the defendants filed a report with the Connecticut Psychiatric Security Review Board (PSRB) falsely characterizing the plaintiff as "mentally ill and in need of treatment under the most restrictive setting under the conditions of maximum-security." As a result of this report, the plaintiff contends that he was subjected to a level of restrictive confinement in violation of his civil rights under federal and state law. He seeks relief under Title II of the Americans with Disabilities Act of 1990 (ADA), 28 C.F.R., Part 35, under the Civil Rights Act, 42 U.S.C. § 1983, and under the due process clause of the Fourteenth Amendment to the United States Constitution.
The complaint alleges that Cotterell is the attending psychiatrist on the plaintiff's unit, that Foster is the director of that unit, that Cassidy is the Division Director of Whiting, and that Mullaney is the Chief Executive Officer of Connecticut Valley Hospital.
The defendants have now moved to dismiss the plaintiff's complaint on the grounds of mootness, sovereign immunity and statutory immunity. "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.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
The undersigned is inclined toward the view that the gravamen of the complaint is in fact medical malpractice, as the essence of the allegations is to the effect that the defendants mis-diagnosed his condition and that he suffered harm as a result. No certificate of good faith is on file. Nevertheless, the parties have chosen to ignore this issue, and in light of the resolution of the other bases for the motion to dismiss, this court has relegated to this footnote its perception that the complaint actually alleges medical malpractice without the required good faith certificate.
The defendants first argue that the claim for injunctive relief is moot because the plaintiff is no longer confined within the maximum security conditions alleged in the complaint and that he has been transferred to a less restrictive setting as a result of a February 9, 2004 decision on his improved medical diagnosis. The plaintiff counters, however, that his claim can overcome the threshold question of mootness because it is one that is "capable of repetition, yet evading review." Citing the Supreme Court holding of St. Pierre v. Solnit, 233 Conn. 398, 401-02, 658 A.2d 977 (1995), the plaintiff alleges that the defendants' improper recommendation of maximum security confinement was of such limited duration that the question of its validity inevitably would evade review; there was a reasonable likelihood that the question presented here would recur in the future and would affect either the plaintiff once again or a reasonably identifiable group for whom he could be considered a proper surrogate; and the issue presented was of public importance.
"A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief." (Internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 88 Conn.App. 523, 529 (2005). "[C]ourts do not decide moot questions disconnected from the granting of actual relief or from the determination of which no practical relief can follow." Id. "One oft-cited case put it this way in finding mootness: So, as no practical benefit could follow from the determination of the questions . . . it is not incumbent upon us to decide them." (Internal quotation marks omitted.) Id.; see State v. Klinger, 50 Conn.App. 216, 222, 718 A.2d 446 (1998).
"[A]n otherwise moot question may qualify for review under the capable of repetition, yet evading review exception [to the mootness doctrine]. To do so, however, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance." (Internal quotation marks omitted.) Sweeney v. Sweeney, 271 Conn. 193, 201-02, 856 A.2d 997 (2004).
This case is distinguishable from In re Darien S., 82 Conn.App. 169, 842 A.2d 1177, cert. denied, 269 Conn. 904, 852 A.2d 733 (2004), where the appellate court found that a juvenile's challenge to the validity of the commissioner's permanency plan for his commitment was "capable of repetition, yet evading review" despite the expiration of the juvenile's commitment. The appellate court there determined that, although a judgment could no longer impact the rights of the aggrieved juvenile, the court could still consider the merits of the plaintiff's claim. Id., 173-74; see also In re Steven M., 264 Conn. 747, 826 A.2d 156 (2003) (finding that exception applied in case of juvenile challenging the validity of his transfer to the commissioner of correction at a time when the juvenile was no longer in custody). In both Darien S. and Steven M., mootness arose out of the expiration of juvenile commitments, likely to occur with some regularity in cases challenging conditions of the custody of juveniles because of the age limitations placed on the court's jurisdiction. There are no such limitations in Psychiatric Security Review Board cases.
The defendants' diagnosis and placement of the plaintiff are not "by [their] very nature" of limited duration. That it may have been so in this case, thanks to the plaintiff's improved condition, does not suggest that, within the context of a hospital housing patients acquitted of criminal charges by reason of insanity, a placement of a patient in a more secure setting will inevitably be of limited duration. As to the second requirement, the court agrees that it can not rule out the possibility that this plaintiff or others similarly situated will seek to contest diagnoses that result in placement under more secure conditions, but there is no particular indication in the plaintiff's pleadings that the alleged improper conduct of these defendants is likely to be repeated, as it arose out of a particular constellation of events that led to the conclusion that the plaintiff's medical condition warranted placement in a more restrictive setting. The events that led to that decision are so patient-specific that it cannot be said with the degree of certainty needed to overcome the mootness doctrine that they are at all likely to be repeated or that, if repeated, they would not result in action of sufficient duration to permit their review by the courts. Finally, the allegations raised by the plaintiff do not appear to have any greater degree of public importance than any other claim of improper medical diagnosis.
"Unless all three requirements are met, the appeal must be dismissed as moot." (Internal quotation marks omitted.) Sweeney v. Sweeney, supra, 271 Conn. 202. The plaintiff has failed to establish "the strong likelihood that the substantial majority of cases challenging the action in question will become moot before they can be reviewed." Loisel v. Rowe, 233 Conn. 370, 383, 660 A.2d 323 (1995). Moreover, it is likely that some patients at Whiting confined in a maximum security setting will be able to contest their conditions before the end of their commitment to the custody of the Commissioner of Mental Health. Accordingly, the change in circumstances following commencement of this litigation renders moot the plaintiff's claim for injunctive relief.
Next, the defendants correctly argue that the claims for monetary damages against them in their official capacities are barred by the doctrine of sovereign immunity. "[A] suit against a state officer concerning his official acts is, in effect, against the state, and . . . sovereign immunity acts as a bar in such a suit to the same extent that it would if the state itself were also the defendant." O'Marra v. State, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 04 4001277 (February 17, 2005, Silbert, J.) ( 38 Conn. L. Rptr. 750). "To get around the hurdle of sovereign immunity, the plaintiff needs to have alleged conduct by a state officer that is sufficiently egregious as to constitute conduct in excess of statutory authority." Shay v. Rossi, 253 Conn. 134, 180, 749 A.2d 1147 (2000). Here, the plaintiff has failed to provide sufficient allegations of conduct so egregious as to overcome the bar of sovereign immunity. The allegations are based on what is essentially a claim of an improper medical diagnosis, leading to a determination that a higher degree of security was appropriate. The plaintiff has not alleged conduct that would turn a claim of improper diagnosis into claim of such egregious conduct that it would overcome the sovereign immunity bar.
Similarly, the defendants claim statutory immunity, pursuant to General Statutes § 4-165, as a bar to the claims against the defendants in their individual capacities. The defendants allege that their conduct is protected by governmental immunity inasmuch as they acted within the scope of their employment and were not wanton, reckless or malicious.
Section 4-165 of the General Statutes provides in part that "[n]o state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state . . ." "In the absence of specific allegations that set out the conduct that is claimed to be reckless, malicious or wanton, a claim based on such conduct cannot survive. Brock v. Waldron, 127 Conn. 79, 81, 14 A.2d 713 (1940)." O'Marra v. State, supra, Superior Court, Docket No. CV 04 4001277. The complaint does not allege that the defendants' actions rose to the level of "reckless, malicious or wanton" conduct, and, thus, the defendants are entitled to statutory protection against claims for damages.
For all of the foregoing reasons, the defendants' motion to dismiss is granted in its entirety.
Jonathan E. Silbert, Judge