Opinion
MMXCV125008157S.
12-21-2012
Ricky MORNEAU v. STATE of Connecticut.
UNPUBLISHED OPINION
DOMNARSKI, J.
The defendants have moved to dismiss the plaintiff's six-count complaint on the grounds that 1) the court lacks subject matter jurisdiction over the action pursuant to the doctrines of sovereign immunity and absolute immunity and 2) the plaintiff lacks standing. For the reasons stated herein, the motion is granted in its entirety.
FACTS
This action arises out of the plaintiff's allegation that two state marshals overbilled him for serving process on the parties that the plaintiff named in a foreclosure action and a lawsuit that he filed in federal court. On July 10, 2012, the plaintiff filed a six-count amended complaint against the following fourteen defendants: State of Connecticut; attorney general George Jepsen; assistant attorney general Philip Miller; James Neil, who is former director of the state marshal commission (the marshal commission); Dennis F. Kerrigan, Marie Knudsen, William Cote, William Cremins, Joseph Ubaldi, who are the former members of the marshal commission; the chief state attorney Kevin Kane; the assistant state attorney Scott Murphy; and state marshals Timothy Bennett and Albenle Gagnon. The operative complaint alleges the following relevant facts. On November 21, 2006 and August 24, 2007, Bennet charged the plaintiff twice for serving a notice of lis pendens and writ of foreclosure by charging double fees. Between August 24, 2007 and September 14, 2007, Gagnon received illegal fees through installment payments for serving process on the parties that the plaintiff names as defendants in a federal lawsuit. Gagnon falsified page counts, endorsements and mileage. The attorney general failed to perform his legal duties by refusing to institute civil proceedings against Bennet and Gagnon. The assistant attorney general violated 18 U.S.C. § 1509 by improperly filing a motion to dismiss in a previous action that the plaintiff filed in the Superior Court. The chief state's attorney improperly refused to prosecute Bennet and Gagnon for larceny and false statement. The marshal commission violated the plaintiff's rights by dismissing his complaint against Bennet and Gagnon with malice. The commission improperly denied the plaintiff's request for public documents on May 30, 2008. In the amended complaint, the plaintiff alleges the following causes of action: In count one, that all of the defendants, acting in their official capacities, violated the plaintiffs state and federal constitutional rights to due process and equal protection, the latter of which constitutes a violation of 42 U.S.C. § 1983; in count two, that the conduct of the offices of attorney general, the offices of the state's attorney, the marshal commission, Gagnon and Bennett constitute negligent infliction of emotional distress; in count three, that the conduct of Gagnon and Bennett violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and the state Corrupt Organizations and Racketeering Activity Act (CORA), General Statutes § 53-395; in count four, that the conduct of Gagnon and Bennett violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.; and in count five, that the conduct of the office of attorney general, the state's attorney and the marshal commission constituted vexatious litigation in violation of General Statutes § 52-568. The plaintiff seek various forms of monetary damages as to these counts. In count six, the plaintiff seeks injunctive relief in the form of orders instituting changes to correct the numerous problems he has identified in the manner in which the state marshals conduct their operations.
Although Jepsen is listed as a defendant in heading of the complaint and mentioned therein, and is listed as a defendant in the defendants' motion, he is not listed as a defendant in the summons, or in the court's electronic record of the case.
The procedural history of the case is as follows. The plaintiff had filed a lawsuit in federal court on May 23, 2007. The defendants moved to dismiss the action. The federal court granted the defendants' motion to dismiss the plaintiff's federal claims on July 7, 2008 and declined to exercise its supplemental jurisdiction over his state law claims.
The complaint was premised on the plaintiff's allegations that in 2004, two other state marshals, Louis Aresco and Louis Corneroli, refused to serve process for the plaintiff; the plaintiff filed a complaint with the attorney general, which that office then forwarded to the marshal commission; the marshal commission ultimately dismissed the complaint; and for constitutional violations against the marshals, attorney general, and the state of Connecticut, specifically for " failure to provide equal protection under the law" and " conspiracy to deny due process and equal protection."
See Morneau v. Connecticut, United States District Court, Docket No. 307CV819 (D.Conn. July 7, 2008). Following dismissal, the plaintiff moved for reconsideration. The court denied the motion on March 30, 2009.
On August 24, 2009, the plaintiff commenced an action by service of a three-count complaint and summons in the Superior Court for the district of New Britain against the state, the marshal commission and Gagnon. That complaint is premised on Gagnon's alleged overbilling of services for the plaintiff and making false statements, the marshal commission's denial of the plaintiff's freedom of information (FOI) request, and the state's violation of an order regarding motion deadlines. The plaintiff subsequently amended the complaint to add Bennett as a defendant and add additional counts. The state moved to dismiss the claims against it and the marshal commission on the grounds that the claims against them were barred by sovereign immunity, because the plaintiff had not received permission to sue the state from the office of the claims commissioner (claims commissioner). On November 23, 2011, Pittman, J., the court granted the state's motion to dismiss. The suit as to both marshals remains pending.
See Morneau v. State, Superior Court, judicial district of New Britain, Docket No. CV 09 5013995.
On September 8, 2009, the plaintiff filed a claim with the claims commissioner seeking permission to sue the state. The claim alleged that Gagnon and Bennett overbilled the plaintiff, they committed mail fraud and violated RICO, and the state violated the plaintiff's rights under the due process and equal protection clauses when: 1) the marshal commission dismissed the plaintiff's complaints against Aresco and Corneroli; 2) the marshal commission failed to provide the plaintiff with certain documents pursuant to a FOI request; 3) various state's attorneys refused the plaintiff's demand that they prosecute the marshals for billing theft; and 4) the state continued to use Gagnon's services. The state moved to dismiss the claims pursuant to General Statutes § 4-148(a), on the ground that they were untimely because they were filed more than one year after the claims accrued. The plaintiff objected and filed a " chronology of events, " in which he sets forth the following as to the dates of accrual: 1) On October 5, 2006, the marshal commission dismissed his complaints against Aresco and Corneroli; 2) on August 23, 2007, Gagnon charged the plaintiff excess fees; 3) in May 2008, the plaintiff read the state ethics commission statement of income for marshals that stated " state marshals had massive incomes, and that some had generated [additional] income by illegal overbilling, or by claiming they performed the service which would have been impossible considering the size of income claimed"; 4) in May of 2008, the plaintiff found that Gagnon " never claimed the $1, 329.20 in fees he billed ... on his 2007 statement of income"; and 5) on June 4, 2008, the plaintiff filed a FOI complaint against the state marshals commission for its refusal to release certain documents. The claims commission concluded that the plaintiff's claims were untimely because the marshals committed their alleged improprieties outside of the one-year limitations period set forth in § 4-148, and dismissed the claim.
The plaintiff subsequently filed a request for review by the General Assembly pursuant to General Statutes §§ 4-148(b) and 4-159. The General Assembly vacated the decision of the claims commissioner and authorized the plaintiff to bring suit against the state. The plaintiff's present suit followed. The defendants now move to dismiss the complaint in its entirety based on the grounds that the court lacks subject matter jurisdiction pursuant to the doctrines of sovereign immunity and absolute quasi-judicial immunity, and the plaintiff's lack of standing. The defendants submitted numerous documents in support of their motion. In response, the plaintiff filed an objection, a memorandum of law and submitted numerous documents on September 4, 2012. The defendant filed a reply on September 24, 2012, and then the plaintiff filed a surreply on September 25, 2012.
The defendants submitted the following documents: a memorandum of law; the amended complaint that the plaintiff filed in the New Britain action on September 25, 2009; the plaintiff's federal complaint, filed on May 23, 2007; the plaintiff's initial notice of claim to the claims commissioner, which he filed on September 8, 2009; the plaintiff's objection to the defendant's motion to dismiss the notice of claim; the memorandum of decision of the claims commissioner; the resolution of the General Assembly; and a final decision issued by the freedom of information commission on November 12, 2008 pertaining to the state marshal commission's failure to comply with the plaintiff's request for documents.
The plaintiff entitled his objection as a " Motion to Strike Defendant's Motion to Dismiss."
The following are among the documents that the plaintiff submitted: 1) a formal opinion by the attorney general regarding state marshal services; 2) return of service for Bennett and Gagnon; 3) the written testimony that the plaintiff submitted to the General Assembly; 4) an auditor's report for the state marshal commission; 5) a notice of stipulation and consent order issued by the office of state ethics; 6) the federal court's order of pretrial deadlines; 7) the plaintiff's request for a prehearing conference for disqualification; 8) a notice of stipulation and consent order issued by the office of state ethics; 9) a compilation of state marshal's income from 2006-2010; 10) Gagnon's invoice and return of service of plaintiff's federal action; 11) Bennett's return of service of the lis pendens; 12) his own in which he attests that certain transcripts are not reflective of testimony concerning state marshals; 13) the state of Connecticut's transcripts deleting the plaintiff's testimony; 14) the state of Connecticut's transcripts deleting testimony of another citizen; 15) a competence to stand trial evaluation report of the plaintiff conducted by the office of forensic evaluations and the plaintiff's motion to dismiss a previous criminal charge for breach of peace; 16) the plaintiff's objection to defendant's motion to dismiss in the New Britain action dated November 18, 2009.
DISCUSSION
" 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.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). " The grounds which may be asserted in [a motion to dismiss] include ... 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 § 143, which is now § 10-31. " Pursuant to Practice Book § 10-31(a), a motion to dismiss ... ‘ shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.’ " Conboy v. State, 292 Conn. 642, 647 n. 7, 974 A.2d 669 (2010).
" Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ..." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). " If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits ... or other evidence, the trial court may dismiss the action without further proceedings." Id., at 652.
" [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.) Housatonic Railroad Co. v. Commissioner of Revenue Services, supra, 301 Conn. at 274. In addition to sovereign immunity, the " issue of standing [also] implicates subject matter jurisdiction [and] may be a proper basis for granting a motion to dismiss ... [S]ee Practice Book § 10-31(a)(1)." (Citation omitted.) Electrical Contractors, Inc. v.. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012).
I
Sovereign Immunity
A
The defendants argue that the plaintiff's claims set forth in counts two, four and five, as well as certain allegations in count one, are barred by sovereign immunity because the plaintiff did not raise these claims in his initial notice of claim that he filed with the claims commissioner. The defendant argues that because the resolution that the plaintiff from the General Assembly permitting him to file a civil action only allows the plaintiff to bring suit against the state as to the specific claims he set forth in his notice of claim that he filed with the claims commissioner, sovereign immunity has not been waived for these other claims and this court therefore lacks subject matter jurisdiction over them. The plaintiff counters that the specific claims that he did not raise in his initial notice of claim to the claims commissioner were nonetheless adequately pleaded because he asserted a general cause of action in that proceeding for denial of his right to due process and equal protection. The plaintiff thus argues that the defendants were given fair notice of the suit's " general legal theories, which can and might change, during the legal discovery process as facts develop."
" [T]he sovereign immunity enjoyed by the state is not absolute. 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 constitutions 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; emphasis added.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009). In regard to these common-law exceptions, " [i]n 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.) Markley v. Dept. of Public Utility Control, 301 Conn. 56, 66, 23 A.3d 668 (2011).
" When the legislature intends to waive immunity from suit or liability, it expresses that intent by using explicit statutory language ... Exceptions to [the] doctrine [of sovereign immunity] are few and narrowly construed under our jurisprudence ... 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." (Citations omitted; internal quotation marks omitted.) Di Pietro v. Dept. of Public Safety, 126 Conn.App. 414, 418, 11 A.3d 1149, cert. granted on other grounds, 300 Conn. 932, 17 A.3d 69 (2011), appeal withdrawn, June 26, 2012. Moreover, it has long been emphasized that such statutes pertaining to sovereign immunity should be " strictly construed" in a manner that preserves the doctrine of sovereign immunity. See Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. at 349-50.
In General Statutes §§ 4-141 et seq., the legislature enacted statutes that establish an avenue for plaintiffs to present monetary claims against the state to the claims commissioner and for obtaining a waiver of sovereign immunity. See Reilly v. Smith, 84 Conn.App. 849, 855, 855 A.2d 1000, cert. denied, 271 Conn. 938, 861 A.2d 513 (2004). In accordance with these statutes, it is the claims commissioner who " determines what claims should be paid, what claims should be referred to the legislature for payment, or which claimants should be authorized to institute an action against the state. " (Emphasis added; internal quotation marks omitted.) Id.
Section 4-148 states in relevant part: " (a) Except as provided in subsection (b) of this section, no claim shall be presented under this chapter but within one year after it accrues. Claims for injury to person ... shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of. (b) The General Assembly may, by special act, authorize a person to present a claim to the Claims Commissioner after the time limitations set forth in subsection (a) of this section have expired if it deems such authorization to be just and equitable and makes an express finding that such authorization by compelling equitable circumstances and would serve a public purpose." (Emphasis added.)
In the present case, the specific claims that the plaintiff listed in his initial notice of claim to the claims commissioner were of overbilling in violation of General Statutes § 50-70 by the state marshals, mail and wire fraud in violation of 18 U.S.C. § 1341, the marshals' collection of unlawful debt in violation of 18 U .S.C. § 1962 (RICO), and violation of the fourteenth amendment. After the claims commissioner dismissed the plaintiff's claim as untimely, the plaintiff sought relief from the General Assembly. The General Assembly then issued a resolution in which it authorized the plaintiff to " institute and prosecute to final judgment an action against the state ... as set forth in said claim. " Because the resolution is essentially waiving sovereign immunity, its terms must be " narrowly construed." A narrow interpretation would be that the plaintiff is only permitted to bring an action for the claims that he sets forth in the initial notice, and may proceed only as to those claims. In the initial claim, he not does not mention negligent infliction of emotional distress, violation of the unfair trade practices or vexatious litigation, which are the claims he raises in counts two, four and five. Despite the plaintiff's argument that he set forth the " general legal theories" in his initial claim, these theories do not give rise to the distinct legal elements for the claims contained in counts two, four and five.
Moreover, the legislature has not waived sovereign immunity for these claims, so as to allow the plaintiff to bring suit directly in the Superior Court. Accordingly, the plaintiff cannot bring these claims against the state without first seeking permission to sue the state from the claims commissioner. He would have to bring a notice of claim for each of the claims to the claims commissioner and request permission to sue. Because the plaintiff has not sought such waiver, and the General Assembly did not expressly extend authorization to these claims in its resolution, this court lacks subject matter jurisdiction over them. Accordingly, the court grants the defendant's motion to dismiss as to counts two, four and five on this ground.
This also applies to certain allegations set forth in count one against the attorney general and assistant attorney general for their alleged failure to bring a civil action against the marshals, as well as the allegation that the state marshal commission refused to comply with a formal written opinion from the office of the attorney general. These allegations were not mentioned in the initial notice of claim and are therefore dismissed.
B
Next, the defendants argue that the General Assembly's resolution is unconstitutional as a public emolument and therefore does not properly waive that immunity. Specifically, the defendants argue that the resolution does not expressly state a public purpose, and that the resolution only " bestows on the plaintiff a benefit that others with untimely claims dismissed by the Claims Commissioner do not receive." The plaintiff counters that the resolution is not unconstitutional because it serves a public purpose in that the plaintiff was " mislead by the defendant's authority for fees, the right to public record, and the right to pre-trial conference authorized by federal orders." Furthermore, the plaintiff contends that it is in the public interest " to promote confidence in the judiciary, to enforce laws equally on behalf of the plaintiff or public." As to the untimeliness of his claims, the plaintiff argues that the statute of limitations did not expire for any of his claims, and that, in the alternative, the statutes of limitations were tolled under the doctrine of continuous course of conduct.
Generally, § 4-148 provides that findings by the General Assembly " ° 'shall not be subject to review by the Superior Court' ..." Lagassey v. State, 268 Conn. 723, 733, 846 A.2d 831 (2004). The findings are, however, " subject to review ... under the public emoluments clause contained it article first, § 1, of the state constitution." Id. The Supreme Court in Lagassey v. State, emphasized that when " the principal issue presented ... is whether the special act on which the plaintiff relies should be declared invalid as an exclusive emolument or privilege ... we must explore whether there is any conceivable justification for this challenged legislation from a public viewpoint." (Internal quotation marks omitted.) id., at 735. When the underlying issue concerns the timeliness of the plaintiff's claims, the court must first determine whether the plaintiff's claim was untimely as a matter of law and, if the claim was indeed untimely, to then discern any public purpose behind the resolution. See Id., at 735-36. Accordingly, the court succinctly stated, " in order for the plaintiff to prevail, it is sufficient to show that her claim was not untimely as a matter of law; in order for the defendant to prevail, we must determine that [the special act] furthers no public purpose, which ... necessarily is predicated upon a determination that the plaintiff's claim was untimely as a matter of law." Id., at 736.
Article first, section 1, of the state constitution states: " All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." Conn. Const., art I, Section 1.
In regard to the issue of when a cause of action accrues under § 4-148(a), the court in Lagassey determined that the standards that apply to the accrual of actions for personal injury, which are governed by the limitation provision of § 52-584, should also apply to § 4-148(a). The court stated: " A plain reading of §§ 4-148(a) and 52-584 reveals that the statutes are alike in most material respects. Both statutes provide that the limitation period begins to run when a plaintiff either sustains or discovers the injury, or in the exercise of reasonable care, should have discovered the injury, and both statutes contain a three year period of repose." (Emphasis added.) Lagassey v. State, supra, 268 Conn. at 738. " In this context, we have repeatedly stated that an injury occurs when a party suffers some form of actionable harm." (Internal quotations marks omitted.) Id., at 739. Specifically, " ‘ [a]ctionable harm’ occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action ... Furthermore, ‘ actionable harm’ may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another." (Citations omitted; internal quotation marks omitted.) Id., at 748-49. " The inquiry is not when the injury could have been discovered; rather it is when the injury should have been discovered." (Emphasis in original .) Id., at 750-51.
General Statutes § 52-548 provides in relevant part: " No action to recover damages for injury to the person ... caused by negligence ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ..."
In the present case, the General Assembly's resolution only extends to the claims set forth in the initial claim that the plaintiff submitted to the claims commissioner. As stated above, these claims consists of overbilling in violation of General Statutes § 50-70, mail and wire fraud in violation of 18 U.S.C. § 1341, the collection of unlawful debt in violation of 18 U.S.C. § 1962, and violation of the plaintiff's due process and equal protections rights under the fourteenth amendment. As to the defendants' violations under the fourteenth amendment, the plaintiff refers to his allegation that Gagnon and Bennett committed mail and wire fraud, the commission dismissed the plaintiff's complaints against Aresco and Corneroli, the commission failed to provide the plaintiff with certain documents pursuant to the plaintiff's FOI request, the state's attorneys refused to prosecute the marshals for billing theft, and the state's continued to use Gagnon's services.
First, according to the plaintiff's complaint, Gagnon received fees between August 24, 2007 and September 14, 2007. It is arguable that these dates may constitute the dates on which the plaintiff " sustained" an injury because the alleged overbilling occurred on these particular dates. In addition, the plaintiff's subsequent investigation into the billing practices of state marshals during 2008, which the plaintiff sets forth in detail in his " chronology of events, " may be indicative of the plaintiff's " knowledge" of a potential injury. Nevertheless, drawing all reasonable inferences in favor of the plaintiff and assuming the plaintiff's position that the dates of the alleged overbilling do not constitute the dates of accrual, the plaintiff nonetheless states in his " chronology of events" that in May of 2008, he found that Gagnon " never claimed the $1, 329.20 in fees he billed ... on his 2007 statement of income." At this point, the plaintiff had discovered the injury, and suffered " actionable harm" because he had knowledge of specific facts that put him on notice of the nature and extent of an injury. Moreover, by May of 2008, the plaintiff states that he was made aware, through the state ethics commission statement of income for marshals, that " state marshals had massive incomes, and that some had generated [additional] income by illegal overbilling, or by claiming they performed the service which would have been impossible considering the size of income claimed." Thus, the plaintiff, as a result of this statement, also had knowledge of additional facts that would put a reasonable person on notice of an injury. Accordingly, the date of accrual for allegations against Gagnon is, at the latest, sometime in May of 2008. The plaintiff here did not file his initial claim with the claims commissioner until September 8, 2009. Because more than one year had lapsed and all claims under § 4-148 have a statute of limitations period of one year regardless of the type of claim, the plaintiff's claims relating to and arising from the alleged overbilling by Gagnon under § 50-70, mail and wire fraud under 18 U.S.C. § 1341, the collection of unlawful debt under 18 U.S.C. § 1962, and any other constitutional claims, were correctly decided as untimely.
The same analysis may also be applied in determining the date of accrual for the allegations against Bennet. Although the plaintiff does not mention the relevant facts regarding the conduct of Bennet in his " chronology of events, " the plaintiff does mention in the operative complaint that Bennet " increased his fees" for the same service of process from November 21, 2006 to August 24, 2007, and collected illegal fees from the plaintiff between these dates. Similar to the allegations against Gagnon, these may be the relevant dates of accrual because the plaintiff " sustained" the alleged overbilling on these dates. In his supporting memorandum, the plaintiff contends, however, that he did not discover Bennet's overbilling until August 9, 2009 and therefore, August 9 is the date of accrual. Assuming that the plaintiff's position that he actually discovered the alleged overbilling on August 2009 is true, the inquiry, nonetheless, is not necessarily when he actually discovered the injury. Rather, it may be when the plaintiff, with the exercise of reasonable care, should have discovered the alleged overbilling. The plaintiff merely asserts, without any evidentiary or factual support, that he discovered the injury in August of 2009. Therefore, without the factual circumstances surrounding this alleged date, it cannot be discerned whether August 9, 2009 is the applicable date of accrual. Instead, the record shows, as seen in the context of Gagnon, that the plaintiff was aware in May of 2008, through the state ethics commission statement of income for marshals, that " state marshals had massive incomes, and that some had generated [additional] income by illegal overbilling, or by claiming they performed the service which would have been impossible considering the size of income claimed." This, coupled with the fact that the plaintiff was aware on August 24, 2007 of a fee increase, demonstrates that the plaintiff at this time had knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury. The plaintiff here did not file his initial claim with the claims commissioner until September 8, 2009. Because more than one year had lapsed and all claims under § 4-148 have a statute of limitations period of one year regardless of the type of claim, the plaintiff's claims relating to and arising from overbilling by Bennet under § 50-70, mail and wire fraud under 18 U.S.C § 1341, the collection of unlawful debt under 18 U.S.C. § 1962, and any constitutional claims were also correctly decided as untimely.
Second, the plaintiff also claims that the marshal commission violated his constitutional rights when it dismissed his complaints against Aresco and Corneroli. The procedural history of the plaintiff's action shows that the plaintiff brought these claims in his federal lawsuit, which he filed on May 23, 2007. This establishes that the plaintiff had knowledge of the " actionable harm" that Aresco and Corneroli allegedly caused him " injury" before that date. Additionally, the " chronology of events" that the plaintiff submitted with his objection to the state's motion to dismiss the plaintiff's claim at the office of claims commissioner shows that the marshals commission dismissed the plaintiff's claims on October 5, 2006. Because the plaintiff did not file his initial claim with the claims commissioner until September 8, 2009, his complaint regarding the way in which the marshals commission handled these claims was also properly dismissed as untimely.
Third, in regard to the plaintiff's claim regarding the marshal commission's denial of his FOI, the request occurred on May 30, 2008. The defendants argue that this date is the proper accrual date for this claim, and, as a result, the plaintiff's claim is untimely because it accrued more than one year before the plaintiff filed his initial claim. The plaintiff relies on the date that the freedom of information commission issued its ruling, which occurred on November 12, 2008. The plaintiff's chronology of events, however, demonstrates that on June 4, 2008, the plaintiff filed a complaint against the state marshal's commission for its refusal to comply with his FOI request. This underscores the plaintiff's existing " knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another." Because the initial claim to the claims commissioner was filed on September 8, 2009, which was more than one year after both May 30, 2008 and June 4, 2008, the plaintiff's claim was untimely, and the claims relating to the marshal's commission were also properly decided as untimely.
The plaintiff argues that the continuous course of conduct doctrine applies for his allegations pertaining to Bennett and Gagnon, as well as the marshal's commission. The Supreme Court has noted that in certain situations, the related statute of limitations in § 52-584 may be tolled. In Martinelli v. Fusi, 290 Conn. 347, 355-56, 963 A.2d 640 (2009), the court explained: " [T]he statute of limitations ... may be tolled, in the proper circumstances, under either the continuous course of conduct doctrine or the continuing treatment doctrine ... The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied." (Citations omitted; internal quotation marks omitted .) Id. Additionally, " in order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong ... Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." (Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 584, 22 A.3d 1214 (2011).
Apart from merely contending that Bennet, Gagnon and the marshal commissioner continued to breach their duty, the plaintiff does not provide any authority that shows that there was an on going duty between the plaintiff and the defendants or a special relationship between the parties that would give rise to such a duty. Thus, the plaintiff has not established that the continuing course of conduct doctrine applies here to toll the applicable statute of limitations. Accordingly, the claims commissioner was not mistaken in deciding that the above claims were untimely under § 4-148(a).
The plaintiff also asserts the doctrine in relation to his claim against the chief state's attorney and the attorney general. The claim regarding the chief state attorney is not untimely and therefore does not necessitate a tolling analysis; as explained herein, the claim may be dismissed on the ground of absolute immunity. Furthermore, the claim regarding the attorney general remains barred by sovereign immunity because the plaintiff did not raise such allegations in his initial claim to the claims commissioner.
Having determined that the plaintiff's action was untimely, the court must then determine whether the findings of the General Assembly serve a " public purpose." See Lagassey v. State, supra, 268 Conn. at 736. In determining " public purpose, " our Supreme Court has explained: " The scope of our review as to whether an enactment serves a public purpose is limited. [W]hat constitutes a public purpose is primarily a question for the legislature, and its determination should not be reversed by the court unless it is manifestly and palpably incorrect ... In determining whether a special act serves a public purpose, a court must uphold it unless there is no reasonable ground upon which it can be sustained ... Thus, if there be the least possibility that [the special act] will be promotive in any degree of the public welfare ... we are bound to uphold it against a constitutional challenge predicated on article first, § 1 [of the state constitution] ..." (Internal quotations marked omitted.) Kelly v. University of Connecticut Health Center, 290 Conn. 245, 258, 963 A.2d 1 (2009). " In this regard, although a special act passed under § 4-148(b) will undoubtedly confer a direct benefit upon a particular claimant, we have found a public purpose if it remedies an injustice done to that individual for which the state itself bears responsibility ... In such circumstances, the benefit conferred upon a private party by the legislature may be viewed as incidental to the overarching public interest that is served in remedying an injustice caused by the state ..." (Emphasis in original; internal quotation marks omitted.) Id. A " record that indicates that the [state] committed [a] procedural mistake that contributed to the plaintiff's failure to file his claim with the claims commissioner within the one year limitations period" would suffice as a " public purpose" for which the state itself bears responsibility. Id., at 260. Conversely, courts have " consistently held that legislation seeking to remedy a procedural default for which the state is not responsible does not serve a public purpose and, accordingly, runs afoul of article first, section 1, of the state constitution." (Emphasis added; internal quotation marks omitted.) Id., at 258.
Here, in regard to the public purpose of the General Assembly's resolution, the defendants argue that the plaintiff will be given a personal benefit. This alone, however, is not dispositive of whether the resolution is a public emolument. The benefit may be deemed " incidental" if the resolution remedies an injustice done to [an] individual for which the state itself bears responsibility." (Internal quotation marks omitted.) Id., at 260. The plaintiff has not, however, provided any evidence or set forth any allegations in his complaint that demonstrate that the state was responsible for the untimeliness of his claim. Although the plaintiff stated in his memorandum of law that " he was mislead by the defendant's authority for fees, the right to public records, and the right to pre-trial conference authorized by the federal courts, " these assertions do not demonstrate that the state actively interfered with the plaintiff's ability to comply with the statute of limitations and is thus responsible for the untimeliness of the plaintiff's claims. Because the plaintiff's complaint does not indicate that the state committed any procedural mistake that contributed to the plaintiff's failure to file his claim with the claims commissioner within the one-year limitations period, the General Assembly's resolution does not serve a " public purpose" for which the state itself bears responsibility. Moreover, the plaintiff's contention that the public interest is " to promote confidence in the judiciary, to enforce laws equally on behalf of the plaintiff or public" is inadequate. Because such a purpose would essentially exist in any cause of action, it would render the public purpose requirement meaningless. See Kelly v. State, Superior Court, judicial district of Middlesex, Docket No. CV 05 4003595 (August 30, 2006, Dubay, J.), aff'd 290 Conn. 245, 963 A.2d 1 (2009). See also Maysonet v. Hartford Housing Authority, Superior Court, judicial district of Hartford, Docket No. CV 95 0545863S (December 4, 1996, Lavine.J.) (18 Conn. L. Rptr. 346, 348) (stating that plaintiff's argument that public purpose to see that " justice is done" is inadequate because it would exist in every case and render requirement meaningless). The resolution is thus unconstitutional under the public emoluments clause of the state constitution.
Accordingly, because the plaintiff's initial claim was untimely under § 4-148(a), and the subsequent resolution from the General Assembly does not serve a public purpose, the defendant's motion to dismiss as to count one and three is granted on this ground.
In regard to the remaining claims set forth in count one, the defendants maintain that the General Assembly's resolution itself is substantively noncompliant with the requirements of § 4-148(b) because it is 1) a " resolution" rather than a " special act"; 2) it allows the plaintiff to commence suit directly in Superior Court rather than resubmitting his notice of claim to the claims commissioner, and 3) the resolution does not " expressly" state a public purpose. The plaintiff counterargues that the resolution effectually waived sovereign immunity and that such findings are not subject to review by the Superior Court. In regard to the defendants' first two arguments, case law is demonstrably unclear as to whether the General Assembly must state its finding specifically in a " special act" and whether the General Assembly has authority to allow claims to be submitted directly to Superior Court. See e.g ., Kinney v. State, 285 Conn. 700, 941 A.2d 907 (2008); Kelly v. University of Connecticut Health Center, supra, 290 Conn. at 245 (same); Brouillard v. State, Superior Court, judicial district of Middletown, Docket No. CV 11 6004226 (June 4, 2012, Holzberg, J.); Philbrick v. State, Superior Court, judicial district of Hartford, Docket No. CV 03 0829941 (January 18, 2005, Shapiro, J.); Estate of Albair v. University of Connecticut Health Center, Superior Court, judicial district of Hartford, Docket No. CV 96 0565152 (February 25, 1997, Hennessey, J.) [ 19 Conn. L. Rptr. 202]. Because statutes pertaining to waiver of sovereign immunity must be " strictly construed, " it is arguable that parties must strictly comply with the procedural requirements of § 4-148. Accordingly, pursuant to § 4-148(b), a claim that is brought to the General Assembly under this provision is for the main purpose of seeking authorization to resubmit a notice of claim to the claims commissioner that is otherwise barred by the one-year statute of limitations set forth in § 4-148(a). This strict compliance may also applies to the defendants' third argument in that the General Assembly would have to make, pursuant to § 4-148(b), an " express finding that such authorization by compelling equitable circumstances and would serve a public purpose." In any event, the constitutionality of the resolution itself remains subject to review under the public emolument clause, and the court may address count one under this analysis. See Lagassey v. State, supra, 268 Conn. at 723.
C
Next, the defendants argue that the claims brought under 42 U.S.C. § 1983 in count one are nonetheless barred by sovereign immunity because such claims may only be " maintained against a state official only when he is sued in his individual capacity." The plaintiff does not address this specific argument by asserting that he is suing the defendants in their " individual" capacity. Instead, the plaintiff maintains his position that sovereign immunity has been waived by the state through the resolution of the General Assembly.
Title 42 of the United States Code, § 1983 provides in relevant part: " Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ..." (Emphasis added.) " [S]tate officials sued for money damages in their official capacities are not ‘ persons' within the meaning of § 1983 because the action against them is one against the office and, thus, no different from an action against the state itself." (Emphasis added.) Sullins v. Rodriguez, 281 Conn. 128, 141, 913 A.2d 415 (2007). " State officials are, however, ‘ persons' within the meaning of § 1983 and may be held personally liable when sued as individuals for actions taken in their official capacities and, thus, under color of law." (Emphasis added.) Id. In other words, the " [distinction] between official and individual capacity suits ... hinges upon from whom the plaintiff seeks a remedy. Official capacity suits seek, in all aspects other than the party named as defendant, to impose liability on the government. Personal capacity suits, in contrast, aim to impose liability directly on officials for actions taken under color of state law." (Emphasis added.) Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 87 (2nd Cir.1991). Courts may " look to the totality of the complaint as well as the course of proceedings to determine whether the defendants were provided with sufficient notice of potential exposure to personal liability." Id., at 89.
In this case, in the heading of the plaintiff's amended complaint, the plaintiff indicates that he brings his claims for money damages against the defendants in their official capacities. The plaintiff also makes similar references that he is suing the defendants in their official capacities throughout his amended complaint. Furthermore, the plaintiff does not refute the defendant's argument that he has brought this action against the defendants in their official capacities, nor is there a mixture of allegations in the complaint that would suggest that the defendants were being sued in both their individual and official capacities. As a result, the totality of the complaint and proceedings does not suggest that the defendants are facing potential personal liability. Because the action is deemed to be against the defendants in their official capacities, which ultimately imposes liability on the state, the defendants are not " persons" within the meaning of § 1983, and the claims under count one are barred by sovereign immunity. Accordingly, the court lacks subject matter jurisdiction over count one.
II
Standing
The defendants also argue the court lacks subject matter jurisdiction over count five in which the plaintiff seeks a permanent injunction to eliminate the current marshal system. The defendants specifically argue that the plaintiff lacks standing to bring a claim for this relief because he has not demonstrated that he would suffer irreparable harm if the relief is not granted. The plaintiff counters that " [t]he well-established principle that when constitutional questions are in issue, the availability of judicial review is presumed and we will not read a statutory scheme to take the ‘ extraordinary’ step of foreclosing jurisdiction."
Firstly, sovereign immunity is not absolute in that exceptions exist. One such exception is for " an action [that] 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 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; emphasis added; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. at 349. Thus, " [i]n 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.) Markley v. Dept. of Public Utility Control, supra, 301 Conn. at 66.
Secondly, in addition to alleging proper factual bases for injunctive relief, " [a] party seeking [such] relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." (Internal quotation marks omitted.) Brennan v. Brennan Associates, 293 Conn. 60, 86, 977 A.2d 107 (2009). " A plaintiff lacks standing to seek an injunction if it does not allege and demonstrate that it would suffer irreparable injury." Fairchild Heights Residents Ass'n, Inc., v. Fairchild Heights, Inc., 131 Conn.App. 567, 582, 27 A.3d 467 (2011), cert. granted on other grounds, 303 Conn. 928, 36 A.3d 242 (2012). " If ... the plaintiff's standing does not adequately appear from all the materials of record, the complaint must be dismissed." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., supra, 300 Conn. at 550.
Assuming, without deciding, that the plaintiff's allegations would support the application of one of these exceptions to sovereign immunity, the plaintiff has not met the requirement for standing. The plaintiff does not allege that he will suffer irreparable harm in the complaint nor does he demonstrate that he will suffer such harm. Thus, the plaintiff lacks standing to bring a claim for injunctive relief. Accordingly, the court lacks subject matter jurisdiction over count six, and the court grants defendant's motion to dismiss count six.
III
Absolute Quasi-Judicial Immunity
The defendants next argue that in the event that the General Assembly's resolution was constitutional and adequate to waive sovereign immunity, such waiver applies only to the plaintiff's timely claim in count one that the state attorney's and the chief state attorney's refusal to prosecute several state marshals violated the plaintiff's due process and equal protection rights. The defendants then argue that this sole timely claim is nonetheless barred by the doctrine of absolute quasi-judicial immunity. The plaintiff does not counter this argument.
Judicial immunity " is a long-standing doctrine that a judge may not be civilly sued for judicial acts he has undertaken in his capacity as judge." Lombard v. Peters, 252 Conn. 623, 630, 749 A.2d 630 (2000). " The officers to whom [such] absolute protection of judicial immunity extends is limited ... The protection extends only to those who are intimately involved in the judicial process including judges, prosecutors and judges' law clerks." Id., at 631. Furthermore, " [i]t is ... well established that officials acting in a judicial capacity are entitled to absolute immunity from § 1983 actions, and this immunity acts as a complete shield to claims for money damages." Smith v. Dunbar, Superior Court, judicial district of New Haven, Docket No. CV 08 4031442 (November 26, 2008, Keegan, J.).
Prosecutorial immunity, in particular, stems from judicial immunity. See Gross v. Rell, 304 Conn. 234, 246-47, 40 A.3d 240 (2012). In Gross v. Rell, the Supreme Court explained that " because prosecutors are such an integral part of the judicial system ... this court has repeatedly recognized that they are entitled to absolute immunity for their conduct as participants in the judicial proceeding." (Internal quotation marks omitted.) Id., at 247. Accordingly, " [a] prosecutor's decision not to initiate a criminal prosecution [is] as protected by absolute immunity as [is] his decision to prosecute." (Internal quotation marks omitted.) Damato v. Thomas, Superior Court, judicial district of Hartford, Docket No. CV 09 5030385 (June 2, 2010, Peck, J.) (50 Conn. L. Rptr. 112, 116). Thus, state's attorneys are immune from tort liability for acts committed in the performance of their duties as state's attorneys ..." Barese v. Clark, 62 Conn.App. 58, 59, 773 A.2d 946 (2001).
In the present case, in count one, the plaintiff asserts claims against a chief state's attorney for " the willful, wanton and reckless refusal ... to prosecute" the state marshal for larceny and false statement. The plaintiff claims that such refusal was in violation of the plaintiff's rights under the equal protection clause, and brings this claim under 42 U.S.C. § 1983. Because a state attorney's decision not to initiate prosecution is a function protected by absolute immunity and this immunity acts as a complete shield to monetary claims brought against him pursuant to § 1983, the plaintiff's claim is barred under absolute immunity. Accordingly, the court grants the defendant's motion to dismiss this claim in count one.
The defendants also raise the issue of the plaintiff's standing to bring this claim. " [A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another" and " lacks standing to compel a prosecution." (Internal quotation marks omitted.) Kelly v. Dearington, 23 Conn.App. 657, 661-62, 583 A.2d 937 (1990). Thus, the court may also dismiss the claim on this ground. The defendants also state that the claim is subject to dismissal because it is against the state attorneys in their official capacities. In accordance with the reasoning set forth in the preceding section, the court may also dismiss the claim on this ground.
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to dismiss.