Opinion
No. CV 03-0523031
March 28, 2005
MEMORANDUM OF DECISION MOTION TO DISMISS #110
FACTS
The pro se plaintiff Eugene P. Mercer, filed an amended complaint on December 15, 2003, against the defendants, David Strange, Dan Bannish, Shiela Hughes, Patricia Wollenhaupt, John Gitzus, Michelle Cabana, Richard Stratton, Dennis Morgan, and Clyde McDonald. All of the defendants are employed by the Department of Corrections. In the complaint, the plaintiff alleges that his right to a reasonable accommodation pursuant to the Americans with Disabilities Act (ADA) was violated and that the defendants breached their duty to protect his right to be free from unlawful discrimination. The plaintiff further asserts therein that the defendants acted under the color of state law, that they intentionally inflicted emotional and physical distress and willfully violated his rights under Title II of the ADA, 42 U.S.C. § 12101 et seq., § 504 of the Rehabilitation Act of 1973 (rehabilitation act), the equal protection clause of the Connecticut constitution and the fourteenth amendment of the United States constitution. All of the defendants have been sued in their official capacity.
On July 23, 2004, the defendants filed a motion to dismiss the amended complaint on the ground of lack of subject matter jurisdiction. Specifically, they argue that under Title II of the ADA, the rehabilitation act, and the United States and Connecticut constitution, the suit is barred by sovereign and statutory immunity. As required by Practice Book § 10-31, the defendants have filed a memorandum of law in support of their motion and the plaintiff has timely filed a memorandum in opposition.
Discussion CT Page 5627
"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 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 notion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotations marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 744, 826 A.2d 138 (2003). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter . . ." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Walker v. Commissioner of Correction, 223 Conn. 411, 417, 611 A.2d 413 (1992).
The defendants argue in their motion to dismiss that "because actions against state employees in their official capacities are tantamount to claims against the state, the plaintiff's complaint is barred by the Eleventh Amendment, the common law doctrine of sovereign immunity and statutory immunity conferred upon state employees by Connecticut General Statutes § 4-165."
Sovereign Immunity
The Connecticut Supreme Court has "long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . [The court has] 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 . . . While the principle of sovereign immunity is deeply rooted in our common law, it has, nevertheless, been modified and adapted to the American concept of constitutional government . . ." (Citations omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). The Connecticut 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." (Citation omitted.) Id., 314. "The United States Supreme Court has held that `the Eleventh Amendment, and the principle of state sovereignty which it embodies,' will not bar a suit against the state where Congress has, by statute, expressly abrogated immunity pursuant to its authority under § 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 446, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)." Davis v. Mark, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 329180 (March 7, 1997, Thim, J.).
The plaintiff argues in his memorandum in opposition to the motion that Congress abrogated the state's eleventh amendment sovereign immunity through the passage of the ADA and the RA. The United States Supreme Court has laid out a two-prong test in determining whether Congress may abrogate a state's sovereign immunity: (1) Congress must have unequivocally expressed its intent to abrogate the immunity and (2) Congress must have acted pursuant to a valid exercise of power. Tennessee v. Lane, 541 U.S. 509, 124 S.Ct., 158 L.Ed.2d 820 (2004); Seminole Tribe v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In Hicks v. Armstrong, 116 F.Sup.2d 287 (D.Conn. 1999), the district court used this test in determining whether a paraplegic pretrial detainee's complaint, alleging that the defendants violated Title II of the ADA and the rehabilitation act, was barred by sovereign immunity. The Hicks court held that "[a]s to part one of that test, it is undisputed that Congress unequivocally expressed its intent to abrogate the states' sovereign immunity under both the ADA and the Rehabilitation Act. See 42 U.S.C. § 12202 (1999) (noting that `[a] State shall not be immune under the eleventh amendment . . . from an action in Federal or State court of competent jurisdiction for a violation of the requirements of this chapter'); 42 U.S.C. § 2000d-7(a)(1) (1999) ('A State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of Section 504 of the [rehabilitation act] . . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.')" (Citation omitted.) Hicks v. Armstrong, supra, 290-91. This court has no reason to disagree with the district court and holds that the first prong of the test is satisfied.
Prong two of the test requires the court to trace the history of decisions regarding Title II of the ADA and the rehabilitation act. A Connecticut district court has held that Title II of the ADA and the rehabilitation act are both valid under the enforcement clause and neither of these acts violate the tenth amendment. Hicks v. Armstrong, supra, 116 F.Sup.2d 291. Furthermore, the United States Supreme Court has "held that the ADA applies to state prisons." Id., citing Pennsylvania Department of Corrections v. Yeskey, 521 U.S. 206, 118 S.Ct. 1952, 1954, 141 L.Ed.2d 215 (1998). The Hicks court considered the split in authority with regards to whether the enactment of the ADA was within Congress' power. The court recognized that "[t]he second and fourth circuits have held that the enactment of the ADA was within Congress's Section 5 power. See Muller v. Costello, 187 F.3d 298, 308-09 (2d Cir. 1999); Amos v. Maryland Department of Public Safety Correctional Services, 178 F.3d 212, 222-23 (4th Cir. 1999)." Hicks v. Armstrong, supra, 116 F.Sup.2d 291. It also noted that "[t]he eighth circuit held that the extension of Title II of the ADA to the states exceeds Congress's authority under Section 5 of the Fourteenth Amendment. See Alsbrook v. Maumelle, 184 F.3d 999, 1007-08 (8th Cit. 1999) (en banc)." Id.
The Hicks court also recognized that the Second Circuit Court's ruling in Muller v. Costello, supra, 187 F.3d 298, was binding. "In Muller, the court noted the following: Section 5 of the Fourteenth Amendment empowers Congress to enact `appropriate legislation' to `enforce' its substantive provisions, including the Equal Protection Clause. A statute is `appropriate legislation' to enforce the Equal Protection Clause if `it is plainly adapted to that end and [if] it is not prohibited by but is consistent with the letter and spirit of the [C]onstitution.'" Hicks v. Armstrong, supra, 116 F.Sup.2d 292. The Hicks court then took into consideration the holding of the United States Supreme Court in Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). In that case, "the court explained that the authority to enforce the Fourteenth Amendment is a broad power to remedy discrimination and prevent future discrimination . . . and that Congress can prohibit activities that are not themselves unconstitutional in furtherance of its remedial scheme . . . Congress's power under § 5 must be linked to constitutional injuries and there must be a congruence and proportionality between the harms to be prevented and the statutory remedy." (Citation omitted.) Id.
Relying on Muller, the Hicks court held that "Congress acted within its power under Section 5 when it passed Title II of the ADA." Hicks v. Armstrong, supra, 261 Conn. 292. In regard to the rehabilitation act, the Hicks court stated that "Congress intended the substantive standards for the Rehabilitation Act to be substantially similar to those for the ADA. Thus, for all the reasons discussed with respect for the ADA, the Rehabilitation Act is also a valid exercise of Congress's authority under Section 5 of the Fourteenth Amendment." Hicks v. Armstrong, supra, 116 F.Sup.2d 292.
The final ruling of Hicks is that "the ADA and the Rehabilitation Act pass both prongs of the Seminole Tribe test . . ." because (1) Congress unequivocally expressed its intent to abrogate immunity under both the ADA and the Rehabilitation Act and (2) Congress acted pursuant to a valid exercise of power. Hicks v. Armstrong, supra, 116 F.Sup.2d 294.
This court holds that the defendants are not entitled to sovereign immunity because that immunity was abrogated by Congress. Therefore, the motion to dismiss must be denied on the ground of sovereign immunity.
Statutory Immunity
However, the defendants farther assert in their motion to dismiss that even if the state law claims are not barred by the doctrine of sovereign immunity, they are barred by statutory immunity under General Statutes § 4-165. Specifically, the defendants claim that the "plaintiff alleges, through a recitation of legal conclusions, that he should not be allowed to reside in a particular area of a particular correctional facility. All of his alleged `rights' derive from the false premise that he is entitled to a particular placement in the correctional system. The claims the plaintiff makes are simply insufficient to defeat statutory immunity pursuant to § 4-165." The plaintiff does not present any arguments in his opposition to the motion concerning statutory immunity.
General Statutes § 4-165 provides in relevant part: "Immunity of state officers and employees from personal liability. 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 . . ."
The Connecticut Supreme Court has held that "state employees may not be held personally liable for their negligent actions performed within the scope of their employment. This provision [§ 4-165] 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 acts in the scope of his or her employment must bring a claim against the state . . . 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." Miller v. Egan, supra, 265 Conn. 319.
The Connecticut Supreme Court addressed the issue of when statutory immunity applies in Martin v. Brady, 261 Conn. 372, 802 A.2d 814 (2002). It stated that "[t]he doctrine of [statutory] immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . When a [trial] 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 . . . [W]e 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. The question before us, therefore, is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive a motion to dismiss on the ground of statutory immunity." (Citation omitted; internal quotation marks omitted.) Id., 376.
The Martin court held that "to determine if a state actor's conduct is caused in the discharge of his or her duties or within the granted statutory authority, it is necessary to examine the nature of the alleged conduct and its relationship to the duties incidental to the employment." Martin v. Brady, supra, 261 Conn. 377. The Martin court looked at Shay v. Rossi, 253 Conn. 131, 749 A.2d 1147 (2000) for guidance and noted that the Shay court "determined that the defendants, individuals employed by the state department of children and families, had acted beyond the scope of their employment when acting `solely . . . to justify their own prior unjustified conduct, and not to carry out the government policy with which they are entrusted . . .'" Martin v. Brady, supra, 261 Conn. 378. The Shay court "concluded that the defendants' `improper and self-serving motives' were provable under these allegations and that such conduct was beyond the ambit of the employment context . . ." Id.
In the present case, all of the plaintiff's allegations are based on not being assigned to a single cell and that all of the defendants have violated his rights under the ADA and the rehabilitation act because of their refusal to relocate him. The plaintiff has been placed in a cell where, according to the defendants, all of his needs are being met because he is in the J1 housing unit which accommodates inmates with medical conditions and disabilities. Furthermore, the defendants argue that a special shower is available to the plaintiff where he resides to accommodate his needs. The plaintiff does not claim that any of the defendants have acted beyond the scope of their employment and the complaint is devoid of any allegations that could be provable to establish that the defendants acted outside their scope of employment. Therefore, the defendants are held to have not acted beyond their scope of employment.
The court must next consider "whether the plaintiff has sufficiently alleged that the defendants' conduct was `wanton, reckless or malicious.'" Martin v. Brady, supra, 261 Conn. 379. The Connecticut 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 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.' . . . [T]he 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." (Citations omitted; internal quotation marks omitted.) Id.
This court agrees with the Martin court holding that "[t]here 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." Martin v. Brady, supra, 261 Conn. 380.
In the present case, the defendants were performing their duties within the scope of their employment and there are no allegations or evidence of wanton, reckless or malicious behavior; therefore, statutory immunity applies and the motion to dismiss is granted on that ground.
BURKE, J.