Opinion
CV155031195S
03-30-2017
Tyriece Fuller v. State of Connecticut, Public Services et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS NOS. 103 & 106
Barbara N. Bellis, J.
The plaintiff, Tyriece Fuller, commenced this action against the defendants, Miles Gerety, the plaintiff's former attorney, and the State of Connecticut Division of Public Defender Services (the state) on November 5 and 6, 2016, respectively. The plaintiff filed a two-page complaint with the court on November 10, 2015.
The first page of the plaintiff's complaint contains allegations that pertain to Gerety, and the second page contains allegations that concern the state. Thus, although the plaintiff's complaint is not expressly divided into two separate counts, the court will construe and refer to the first page as count one and the second page as count two.
The first count of the plaintiff's complaint is directed at Gerety and alleges the following facts. On July 18, 2014, Gerety assaulted and threatened the plaintiff at 1061 Main Street in Bridgeport. That day, Gerety met with the plaintiff at 1061 Main Street in a private conference room on the fifth floor where they discussed the plaintiff's criminal case. At that time, Gerety pushed the plaintiff against the wall and struck the plaintiff with a right punch on the left side of his face on his chin. After striking him, Gerety told the plaintiff to keep his mouth shut about the evidence tampering in his criminal case. The plaintiff additionally alleges that he is seeking relief for pain and suffering and for psychological and emotional damages in the amount of one million dollars.
The second count of the plaintiff's complaint is directed at the state and alleges the following facts. On July 18, 2015, the state's employee, Gerety, pushed the plaintiff against a wall and then punched the plaintiff in the face. After assaulting the plaintiff, Gerety threatened the plaintiff to keep his mouth shut about perjury and evidence tampering in the plaintiff's criminal case. Because Gerety was employed by the state, the state is liable for Gerety's actions. The plaintiff further alleges that he seeks relief for pain and suffering and for emotional and psychological damages. The plaintiff also seeks punitive damages from the defendants and relief in the amount of five million dollars.
On December 4, 2015, the state filed a motion to dismiss the plaintiff's claim against it on the ground that the state is entitled to sovereign immunity, thereby depriving the court of subject matter jurisdiction over that claim. The state filed a memorandum of law in support of its motion to dismiss. On December 24, 2015, Gerety filed a motion to dismiss the plaintiff's claims against him on the ground that this court lacks subject matter jurisdiction over those claims because Gerety is entitled to statutory immunity. Gerety submitted a memorandum of law in support of his motion to dismiss. The plaintiff filed an objection addressing only the state's motion. On January 15, 2016, the plaintiff filed an amended objection.
On January 13, 2016, the plaintiff filed a motion to amend his complaint, attaching the amended complaint to his motion. On January 25, 2016, the defendants filed a memorandum in opposition to the plaintiff's motion to amend his complaint. The court will not consider the plaintiff's motion to amend his complaint and the attached amended complaint because " [i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court." Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991); see also Kelly v. Albertsen, 114 Conn.App. 600, 607, 970 A.2d 787 (2009) (" [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" [internal quotation marks omitted]).
DISCUSSION
" A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30(a). " 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). Accordingly, " a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).
" Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to [Practice Book § 10-30](a)(1) may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.
" 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." (Citation omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).
The state argues that the court lacks subject matter jurisdiction because the state is entitled to sovereign immunity. Gerety argues that the court lacks subject matter jurisdiction because he is entitled to statutory immunity pursuant to General Statutes § 4-165. In opposition, the plaintiff argues that the state allows plaintiffs to sue the state for injuries resulting from wanton, wilful, and malicious conduct.
General Statutes § 4-165 provides in relevant part that
To address properly the defendants' sovereign immunity and statutory immunity claims, the court must first determine whether the plaintiff's action is exclusively against the state or is also against Gerety in his individual capacity. " The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty . . . Our Supreme Court has recognized that because the state can act only 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." (Citation omitted; internal quotation marks omitted.) Kenney v. Weaving, 123 Conn.App. 211, 215, 1 A.3d 1083 (2010). Nevertheless, if the plaintiff's complaint " reasonably may be construed" to bring claims against a defendant in his individual capacity, rather than in his official capacity, then sovereign immunity would not bar those claims. Miller v. Egan, 265 Conn. 301, 307, 828 A.2d 549 (2003).
" [I]f sovereign immunity does not apply to the claim against [a state official] in [his] official capacity . . . statutory immunity may then apply to the claim against [him] in [his] individual capacity. Thus, before determining whether and to what extent the defendants are shielded by the statutory immunity provided by § 4-165, it is appropriate to determine whether the claims against them are barred by the common-law doctrine of sovereign immunity." (Internal quotation marks omitted.) Cimmino v. Marcoccia, 149 Conn.App. 350, 352 n.2, 89 A.3d 384 (2014).
Accordingly, " [t]o determine whether an action is against the state or against a defendant in his individual capacity, we look to the four criteria established by our Supreme Court in [ Somers v. Hill, 143 Conn. 476, 123 A.2d 468 (1956)] and as explained further in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975). If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred . . . The criteria are: (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." (Citation omitted; internal quotation marks omitted.) Kenney v. Weaving, supra, 123 Conn.App. 216.
In the present case, the first and second criteria are satisfied. Considering the plaintiff's complaint as a whole, the first criterion is satisfied because the plaintiff alleges in count two that Gerety is " an employee of the defendant State of Connecticut Division of Public Defenders . . ." See, e.g., Cimmino v. Marcoccia, supra, 149 Conn.App. 358 (noting plaintiff conceded defendants were state officials and complaint alleged defendants had been attorney and agents for state entities). The second criterion is satisfied because the suit concerns some matter in which Gerety represents the state. In both counts, the plaintiff alleges that, while discussing his criminal case, Gerety became physical with the plaintiff and told the plaintiff to " keep his mouth shut" with regard to perjury and evidence tampering. This alleged altercation is related to Gerety's legal representation of the plaintiff. See, e.g., Kenney v. Weaving, supra, 123 Conn.App. 216 (concluding second criterion met because defendants' allegedly reckless actions were related to his duties as Commissioner of Motor Vehicles).
The third criterion, that the state is the real party from whom the plaintiff seeks relief, is not satisfied with respect to count one. First, the language of the plaintiff's complaint evidences the plaintiff's desire to sue both the state and Gerety. Count one is directed against Gerety as " the defendant Miles Gerety, " whereas count two is directed against the state, referencing Gerety only as " an employee of the defendant State of Connecticut Division of Public Defenders of the name of Miles Gerety." Furthermore, count one does not contain allegations that Gerety is being sued " in his official capacity" or that Gerety " acted in his official capacity." See Miller v. Egan, supra, 265 Conn. 309 (concluding third criterion met because plaintiff's complaint repeatedly alleged defendants acted in their official capacity and failed to assert otherwise in opposition papers). In fact, count one does not reference the state at all, nor does it mention Gerety's position as an attorney, public defender, state employee, or agent of the state. Additionally, in both counts, the plaintiff seeks damages for injuries allegedly caused by acts that do not fall within Gerety's official duties as the plaintiff's attorney, namely, physical assault and threats. See Kenney v. Weaving, supra, 123 Conn.App. 216-17 (concluding third criterion met because plaintiff sought damages for injuries allegedly caused by defendant for performing or not performing acts that were a part of his official duties). Finally, the record reveals that, at the direction of the plaintiff, service of process was mailed to the Office of the Attorney General and hand-delivered to Gerety. See Duquette v. Corradi, Superior Court, judicial district of New London, Docket No. CV-05-4002769-S, (June 9, 2006, Jones, J.) (concluding third criterion not met because, among other reasons, defendants were served at home and not at attorney general's office). Taken together, the plaintiff's allegations and the method of service of process establish that the plaintiff means to sue Gerety individually in addition to suing the state.
In his objection, the plaintiff does not claim that he is suing Gerety in his individual capacity. Nevertheless, in light of the particular allegations in the plaintiff's complaint and his status as a self-represented party, the court concludes that the third criterion is not satisfied. See Multilingual Consultant Associates, LLC v. Ngoh, 163 Conn.App. 725, 734, 137 A.3d 97 (2016) (stating established policy of Connecticut courts is to be solicitous of self-represented litigants and to construe rules of practice liberally in favor of self-represented party when it does not interfere with rights of other parties).
The fourth criterion is not satisfied with respect to count one because a finding of liability against Gerety in his individual capacity will not operate to control the state's activities or subject it to liability. Miller v. Egan, supra, 265 Conn. 311 (concluding fourth criterion met because judgment against state would subject it to liability). Although the plaintiff seeks to hold the state liable for Gerety's actions in count two, he seeks to hold Gerety alone liable in count one.
Accordingly, the plaintiff's complaint can be reasonably construed as bringing claims against Gerety in his official and individual capacities or, in essence, against the state as Gerety's employer and Gerety as an individual. Thus, the claims asserted against the state and Gerety implicate sovereign immunity and statutory immunity, respectively. The court will now address the defendants' motions to dismiss.
A. Sovereign Immunity
The state moves to dismiss the plaintiff's claim against it on the ground that the state is entitled to sovereign immunity. " [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.) Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 387, 978 A.2d 49 (2009). " 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 . . . Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only 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 . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence." (Citations omitted; internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007).
" [T]o circumvent the doctrine of sovereign immunity, [a plaintiff] must show that . . . the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." (Citation omitted; internal quotation marks omitted.) Perrone v. State, 122 Conn.App. 391, 395, 998 A.2d 256 (2010). " When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim . . . [General Statutes § § 4-141 through 4-165b] expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the [claims] commissioner or other statutory provisions." (Internal quotation marks omitted.) Id., 395.
A second exception to the sovereign immunity doctrine exits; however, it applies only to actions seeking declaratory or injunctive relief, not monetary damages, and, thus, is inapplicable to the present case. See Miller v. Egan, supra, 265 Conn. 314 (stating plaintiff seeking to overcome sovereign immunity must show that legislature statutorily waived state's sovereign immunity or, in action for declaratory or injunctive relief, that state officer acted in excess of statutory authority or pursuant to unconstitutional statute).
The state notes that the plaintiff seeks five million dollars in damages from the state, and argues that sovereign immunity deprives the court of subject matter jurisdiction over the plaintiff's claims. As evidenced by the allegations in the plaintiff's complaint, the plaintiff is seeking monetary damages from the state. The plaintiff does not allege that the legislature statutorily waived the state's sovereign immunity as it applies to the present case, and the plaintiff does not point to any such statute in his opposition memorandum. Accordingly, the state is entitled to sovereign immunity from the plaintiff's suit because the plaintiff has failed to so much as identify a statutory waiver of the state's sovereign immunity; see Cimmino v. Marcoccia, supra, 149 Conn.App. 361; and has not alleged that the claims commissioner authorized his action against the state for monetary damages. See General Statutes § 4-160. The state's motion to dismiss on the basis of sovereign immunity, therefore, is granted.
General Statutes § 4-160 provides in relevant part:
B. Statutory Immunity
Gerety moves to dismiss the plaintiff's claims against him on the ground that he is entitled to statutory immunity pursuant to § 4-165. " The statutory immunity provided by § 4-165 is distinct from common-law sovereign immunity." Kenney v. Weaving, supra, 123 Conn.App. 218. " Section 4-165 immunity applies to lawsuits against state employees in their individual capacities." Cumberland Farms, Inc. v. Dubois, 154 Conn.App. 448, 459 n.12, 107 A.3d 995 (2014).
Section 4-165 provides in relevant part that " (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 her 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." " In other words, state employees may not be held personally liable for their negligent actions performed within the scope of their employment. This provision of statutory immunity to state employees has a twofold purpose. First, the legislature sought to avoid placing a burden upon state employment. Second, § 4-165 makes clear that the remedy available to plaintiffs who have suffered harm from the negligent actions of a state employee who acted in the scope of his or her employment must bring a claim against the state 'under the provisions of this chapter, ' namely, chapter 53 of the General Statutes, which governs the office of the claims commissioner.
" 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." (Footnote omitted.) Miller v. Egan, supra, 265 Conn. 319. Therefore, the issue of whether § 4-165 operates to bar the plaintiff's suit against Gerety in his individual capacity presents two sub-issues, namely, whether Gerety's alleged conduct was (a) caused in the discharge of his duties or within the scope of his employment or (b) wanton, reckless, or malicious.
Gerety contends that, in the present case, the plaintiff alleges that he pushed and struck the plaintiff. According to Gerety, the Supreme Court in Martin v. Brady, 261 Conn. 372, 802 A.2d 814 (2002), held that statutory immunity applied to the defendants who were accused of striking and pushing the plaintiff to the floor, smashing windows, and breaking down doors. Gerety argues that, much like the defendants in Martin, he is statutorily immune from suit because the plaintiff's allegations are insufficient to allege wantonness, recklessness, or malice.
The Supreme Court has " never definitively determined the meaning of wanton, reckless or malicious as used in § 4-165. In the common-law context, however, [the Supreme Court] has 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 . . . Indeed, in some instances, the mere fact that an official has acted in excess of his or her authority may suffice to prove that the conduct was wanton, reckless or malicious." (Citation omitted; internal quotation marks omitted.) Martin v. Brady, supra, 261 Conn. 379.
In Martin, the plaintiff's complaint alleged that one or more of the defendants, three Connecticut state troopers and one detective, " (1) forcibly entered the plaintiff's home without a search warrant, striking and pushing him to the floor after he submitted to arrest; (2) searched his home pursuant to a search warrant obtained pursuant to a false affidavit; and (3) during that search, smashed windows and broke down doors." Id., 377. With respect to the issue of whether the plaintiff sufficiently alleged that the defendants' conduct was wanton, reckless, or malicious, the Supreme Court concluded that the plaintiff had failed to allege facts to demonstrate that the defendants acted in a wanton, reckless, or malicious manner. Id., 380. The Supreme Court reasoned: " There is no allegation in the complaint from which we can infer that the defendants' conduct was indicative of such a state of mind or that the conduct rose to the level of egregiousness necessary to be considered wanton, reckless or malicious. To the contrary, the facts, as alleged, present a search and arrest conditioned upon an extradition warrant issued by the state of Florida, the validity of which is unchallenged by the plaintiff, and a search conducted pursuant to an allegedly false affidavit. The facts concerning the initial search and arrest are not inconsistent with the statutory authority provided to the state police pursuant to General Statutes § 53a-22(b)." (Footnote omitted.) Id.
Martin is distinguishable from the present case in key respects. Unlike the alleged circumstances in Martin, the plaintiff's complaint does not allege that Gerety's conduct occurred in a situation where " a high degree of danger" was present due to the plaintiff's own actions. Additionally, the plaintiff does not allege that Gerety is a state trooper, a detective, or any like state employee who would have the statutory authority to use physical force upon another in carrying out his or her official duties. Rather, the plaintiff's complaint alleges conduct on the part of Gerety that is highly unreasonable given the alleged circumstances and indicates a reckless disregard of the plaintiff's rights and his safety. See also David v. Bureau, Superior Court, judicial district of Windham, Docket No. CV-07-5001460-S, (August 25, 2008, Calmar, J.) (concluding plaintiffs alleged sufficient facts to survive motion to dismiss on statutory immunity ground where student alleged her teacher committed assault and battery, among other claims, when he inappropriately touched her at school); Duquette v. Corradi, supra, Superior Court, Docket No. CV-05-4002769-S, (concluding state police troopers' alleged conduct could indicate reckless disregard for plaintiff's rights or safety or for consequences of their actions where they handcuffed plaintiff, shouted obscenities at her, kicked and stomped on her chest, and commanded a dog to attack her).
Furthermore, in contrast to the conduct alleged in the present case, Connecticut courts have found statutory immunity to apply to public defenders alleged to have committed negligent acts. See, e.g., Lemoine v. McCann, 40 Conn.App. 460, 464-65, 673 A.2d 115, cert. denied, 237 Conn. 904, 674 A.2d 1330 (1996) (upholding trial court's determination that § 4-165 immunity applies because plaintiff specifically represented in complaint he was bringing legal malpractice action and complaint constituted allegations of negligence, not of wanton, reckless, or malicious conduct); Holliday v. Collins, judicial district of Hartford, Docket No. CV-15-5039370-S (September 22, 2015, Elgo, J.) (61 Conn.L.Rptr. 1, ) (concluding § 4-165 immunity applies because plaintiff's complaint sounds in negligence and is insufficient to support claim of wanton, reckless, or malicious conduct where plaintiff alleged claims arising from public defender's representation rather than from any violent physical acts).
Accordingly, the plaintiff has sufficiently alleged facts that demonstrate that Gerety acted in a wanton, reckless, or malicious manner. Gerety's motion to dismiss on the basis of statutory immunity, therefore, is denied.
CONCLUSION
In light of the foregoing, the state's motion to dismiss is granted, and Gerety's motion to dismiss is denied.
(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 her 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. (b) For the purposes of this section, (1) 'scope of employment' includes but is not limited to, (A) representation by an attorney appointed by the Public Defender Services Commission as a public defender, assistant public defender or deputy assistant public defender or an attorney appointment by the court as a Division of Public Defender Services assigned counsel of an indigent accused or of a child on a petition of delinquency . . .
(a) When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable . . . (c) In each action authorized by the Claims Commissioner pursuant to subsection (a) or (b) or this section or by the General Assembly pursuant to section 4-159 or 4-159a, the claimant shall allege such authorization and the date on which it was granted . . ."