Opinion
No. CV 054002769
June 9, 2006
Factual Background
On March 24, 2005, the plaintiff, Christine Duquette, commenced the present action by service of the summons and a four-count complaint on the defendants, Connecticut state police troopers Robert Corradi, William Davis and David Lavoie, pursuant to General Statutes § 52-592. In the complaint, the plaintiff alleges that, on September 24, 2000, the defendants exerted "excessive and unreasonable force" upon her while they were arresting her for burglary, criminal mischief and interfering with police. More specifically, the plaintiff alleges, inter alia, the following: one of the defendants hit the plaintiff with a mag light; once the plaintiff was placed on the floor and tightly handcuffed, the defendants commanded their dog to attack her and the dog bit the plaintiff's arms; they kicked the plaintiff and did not cease even when she screamed for them to stop; one of the defendants stomped on the plaintiff's chest with his thick-soled boots; one of the defendants pulled the plaintiff's shirt up and responded to the plaintiff's request to put her shirt back down with profane language. The plaintiff further alleges that the defendants' conduct was motivated either by malice or by a reckless disregard of her rights. In counts one through four, respectively, the plaintiff asserts claims against all the defendants for violations of 42 U.S.C. § 1983, assault and battery, intentional infliction of emotional distress and violations of General Statutes § 22-357. The plaintiff seeks compensatory damages in counts two, three and four.
On September 24, 2003, the plaintiff commenced a prior action against the defendants in which she also alleged that the defendants engaged in wrongful conduct while they were arresting her. See Duquette v. Corral, Superior Court, judicial district of New London, Docket No. CV 03 0567309. The defendants subsequently filed a motion to dismiss, arguing that they had not been properly served with process and that they were entitled to sovereign and statutory immunity for the plaintiff's state law claims. On March 29, 2004, the court (Hurley J.) granted the motion for insufficient service of process. Thereafter, on May 28, 2004, the plaintiff refiled her action, but she unilaterally withdrew it on January 10, 2005.
General Statutes § 52-592, Accidental Failure of Suit; Allowance of New Action, provides, in pertinent part:
(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . .
General Statutes § 22-357, Damage to Person or Property, provides, in pertinent part:
If any dog does any damage to either the body or property of any person, the owner or keeper . . . shall be liable for such damage . . .
The defendants filed a motion to dismiss counts two, three and four and a memorandum in support on December 19, 2005. According to the defendants, the common-law doctrine of sovereign immunity and the statutory provision for personal immunity, under General Statutes § 4-165, apply to these claims, and the court, therefore, lacks subject matter jurisdiction. On February 14, 2006, the plaintiff filed a memorandum in opposition, in which she contends that sovereign immunity and statutory immunity do not apply to her claims.
General Statutes § 4-165, Immunity of State Officers and Employees from Personal Liability, provides, in pertinent 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 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 under the provisions of this chapter.
Standard for deciding Motion to Dismiss
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11 (2006). "[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.) Id., 211. The same is true for the doctrine of statutory immunity. Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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." (Internal quotation marks omitted.) Cox v. Aiken, supra, 211.
The defendants' first argument is that they are entitled to common-law sovereign immunity because, in counts two through four, the plaintiff has brought claims for monetary damages against them in their official capacities. The plaintiff counters that sovereign immunity does not apply to her claims because she brings them against the defendants in their individual capacities.
The Supreme Court has held that "a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Internal quotation marks omitted.) CT Page 10824 Cox v. Aiken, supra, 278 Conn. 212. In Miller v. Egan, 265 Conn. 301, 318, 828 A.2d 549 (2003), our Supreme Court held that, pursuant to the doctrine of sovereign immunity, and in the absence of a statute that expressly or impliedly waives the sovereign immunity of the state, a plaintiff who is bringing a claim for monetary damages against state officers acting in their official capacities "must seek a waiver from the claims commissioner before bringing an action against the state in the Superior Court." See General Statutes §§ 4-141 through 4-165. On the other hand, the Court explained, "[i]f the plaintiff's complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims." Miller v. Egan, supra, 307.
Here, the plaintiff does not contend that she is relying on a statute waiving sovereign immunity, and she is only seeking monetary damages. She also has not alleged that she has received permission from the claims commissioner to bring this action, as required by General Statutes § 4-160. Thus, as in Miller, the dispositive issue is whether she is suing the defendants in their official or individual capacities.
The plaintiff has not contested the defendants' argument that § 22-357 does not constitute a waiver of sovereign immunity. Thus, the court may assume the non-existence of an applicable statute waiving the state's sovereign immunity.
General Statutes § 4-160, Authorization of Actions Against the State, provides, in relevant part:
(a) When the Claims Commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.
In Miller, the Court stated that "[t]he determination of whether the plaintiff's complaint alleged claims against the defendants in their individual capacities is governed by the test set forth in Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975). In Spring, the plaintiff brought an action against the individual defendant, a public defender, in his individual capacity. The attorney general appeared on behalf of the defendant and asserted that sovereign immunity barred the action. The court agreed with the attorney general 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 . . . The vital test is to be found in the essential nature and effect of the proceeding.' (Internal quotation marks omitted.) Id. The court then set forth four criteria to determine whether an action is `in effect, one against the state and cannot be maintained without its consent: (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.' (Internal quotation marks omitted.) Id." Miller v. Egan, supra, 265 Conn. 308.
The plaintiff's action meets the first two criteria because the defendants were state police troopers at all relevant times, and because the suit concerns the defendants' conduct during their arrest of the plaintiff, a matter in which the defendants, as state police troopers, represented the state. Nonetheless, the action does not meet the third and fourth criteria.
As to the third criterion, in the summons, the plaintiff listed each of the defendants by name and provided their home addresses. Unlike the plaintiff in Miller, the plaintiff in this case does not repeatedly allege in the complaint that she is "bringing suit against the defendants in their official capacities" or that "the defendants acted in their official [capacities]." Miller v. Egan, supra, 265 Conn. 307, 309. Nor does she allege that the defendants were acting as agents of the state when they subjected her to excessive and unreasonable force. Furthermore, each defendant was served at his home, not at the attorney general's office in Hartford. Therefore, the state is not the real party against whom the plaintiff is seeking relief.
In her memorandum in opposition to the motion to dismiss, the plaintiff asserts that the defendants "went beyond the scope of their employment" and did not act "in their official capacity" when they began assaulting her. According to the plaintiff, the defendants "ceased to be state officials and to represent the state" when they used unreasonable force to arrest her.
In Miller, the Supreme Court also noted that "[t]he plaintiff could have responded, in his objection to the motion to dismiss, that his complaint had brought claims against the individual defendants, not only in their official capacities, but also in their individual capacities, and could have argued that sovereign immunity was inapplicable to any individual capacity claims, but he did not do so. Instead, the plaintiff argued that the legislature had waived sovereign immunity . . ." Miller v. Egan, supra, 265 Conn. 309. Therefore, the Court declined to permit the plaintiff to make the argument on appeal that he also sought relief against the defendants in their individual capacities. Miller v. Egan, supra, 310. In contrast, the plaintiff in the present case specifically argues that she has brought her claims against the defendants in their individual capacities.
Regarding the fourth criterion, the defendants assert that under General Statutes §§ 5-141d and 29-8a the state will be required to indemnify them if a judgment for monetary damages is entered against them. Pursuant to the express language used in both of these statutes, the state is only required to "save harmless" and indemnify a state officer if, inter alia, the officer's conduct was not "wanton, reckless or malicious." See Kemper Auto Home Ins. Co. v. State, Superior Court, judicial district of New London, Docket No. CV 04 0569339 (January 24, 2005, Hurley, J.T.R.) (If a "claim is grounded in recklessness, the state indemnification statute [codified in § 5-141d(a)] is inapplicable"). The plaintiff explicitly alleges that the defendants acted with "either malice or a reckless disregard of the plaintiff's rights" and her factual allegations support her characterization of their conduct. Thus, the state would not be liable to indemnify the defendants even if a judgment enters against them on counts two, three and four. Accordingly, the fourth criterion is also not satisfied because a judgment in favor of the plaintiff will not "operate to control the activities of the state or subject it to liability." See Johnson v. Connecticut Juvenile Training School, Superior Court, judicial district of Middlesex, Docket No. CV 05 4003278 (October 20, 2005, McWeeny, J.).
General Statutes § 5-141d, Indemnification of State Officers and Employees, provides, in relevant part:
(a) The state shall save harmless and indemnify any state officer or employee . . . from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person's civil rights or other act or omission resulting in damage or injury, if the officer, employee . . . is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious. (Emphasis added.)
General Statutes § 29-8a, Indemnification of State Police, State Capitol Police and Certain Special Police in Civil Rights Actions, provides, in relevant part:
(a) The state shall protect and save harmless any state policeman from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of the alleged deprivation by such state policeman of any person's civil rights, which deprivation was not wanton, reckless or malicious, provided such state policeman, at the time of the acts resulting in such alleged deprivation, was acting in the discharge of his duties or within the scope of his employment or under the direction of a superior officer. (Emphasis added.)
For the foregoing reasons, counts two, three and four of "the plaintiff's complaint reasonably may be construed" as bringing claims against the defendants in their individual capacities. Miller v. Egan, supra, 265 Conn. 307. Accordingly, these claims are not barred by the common-law doctrine of sovereign immunity. Id.
According to the defendants' second argument, the plaintiff's claims are also barred pursuant to the statutory immunity provision of § 4-165 because the plaintiff has not alleged that they engaged in conduct that was either outside the scope of their official duties or sufficiently egregious to constitute wanton, reckless or malicious conduct. The plaintiff counters that she has alleged conduct by the defendants that was wanton, reckless and malicious and outside the scope of their employment as state police officers.
"[T]he statutory immunity provided by § 4-165 applies where sovereign immunity does not apply." Shay v. Rossi, 253 Conn. 134, 164, 749 A.2d 1147 (2000), overruled in part on other grounds, Miller v. Egan, supra, 265 Conn. 325. "State employees do not, however, have statutory immunity for wanton, reckless or malicious actions, or for actions not performed within the scope of their employment. For those actions, they may be held personally liable, and a plaintiff who has been injured by such actions is free to bring an action against the individual employee." Miller v. Egan, supra, 265 Conn. 319.
"[W]e have never definitively determined the meaning of wanton, reckless or malicious as used in § 4-165. In the common-law context, however, we have 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 . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Martin v. Brady, supra, 261 Conn. 379.
Construed in a manner most favorable to the plaintiff, the plaintiff's allegations that the defendants, after handcuffing the plaintiff, shouted obscenities at her, kicked and stomped on her chest and commanded a dog to attack her, could rise to the level of conduct that indicates the defendants' reckless disregard for the plaintiff's rights or safety or for the consequences of their actions. It certainly indicates conduct that goes beyond the scope of their official duties. Hence, the complaint sufficiently pleads the claims alleged for the court to infer wanton, reckless or malicious conduct by the defendants, bringing the challenged counts within the exception to § 4-165. As such, § 4-165 does not bar counts two, three and four.
Conclusion
For the foregoing reasons, the Motion to Dismiss should be and hereby is denied.