Opinion
CV166067116S
12-19-2016
Joel Shaw et al. v. Joette Katz et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
A. Susan Peck, Judge
On March 30, 2016, the plaintiffs, Joel Shaw and Michelle Shaw, filed a twenty-one-count complaint sounding in failure to train pursuant to 42 U.S.C. § 1983, federal procedural due process violations, breach of contract, negligence, gross negligence, recklessness, intentional infliction of emotional distress, negligent infliction of emotional distress, defamation and state constitutional due process violations against seventeen defendants. The defendants are: Joette Katz, the Commissioner of the Department of Children and Families (DCF); Velvette Royal, DCF social worker; Patricia Zuccarelli, DCF regional administrator; Maritza Acosta, DCF program manager; Kasia Sikora-Kowolik, DCF social work supervisor; Mark Williams, DCF social worker; Scott Johnson, DCF social worker; Pamela Kelley, DCF program manager Lucia Roman-Vallario, DCF social work supervisor; the Waterford Country School, Inc. (WCS); William Martin, WCS Executive Director; Chris Lacey, WCS program manager; Dawn Caruso, WCS foster support worker; Sandra Couillard, WCS program director; David Pfeidder, WCS social worker; Rachel Newer, WCS family trainer and support worker; and Lisa Duzy, WCS foster care supervisor.
The present matter involves a motion to dismiss filed by the defendants Joette Katz, Velvette Royal, Patricia Zuccarelli, Maritza Acosta, Kasia Sikora-Kowolik, Mark Williams, Scott Johnson, Pamela Kelley, and Lucia Roman-Vallario, who are collectively referred to herein as " the defendants, " and, as necessary, by their individual names.
The plaintiffs' complaint alleges the following facts. On July 22, 2013, the plaintiffs were licensed as foster parents through WCS. The plaintiffs were officially licensed as regular--not therapeutic--foster parents, with the specific intent to adopt. On November 27, 2013, two boys, O.C., age four, and N.C., age five, were placed with the plaintiffs by Waterbury DCF. At the time of this placement, both O.C. and N.C. required a therapeutic foster home given their difficult history and aggressive behavior, but DCF did not make the plaintiffs aware of this, nor were the plaintiffs licensed to provide therapeutic care. Additionally, DCF had not entered into a contract with a private agency, such as WCS, to provide the necessary therapeutic services to O.C. and N.C.
The complaint further alleges that on December 3, 2013, the plaintiffs informed the defendant Williams that things were not going well with O.C. and N.C., and notified the defendant Williams of O.C. and N.C. 's behaviors, which included sexual touching, as well as physical aggression toward one another. On that same day, DCF signed a contract with WCS to provide services to the plaintiffs and O.C. and N.C., which included, among other things, clinical support to the plaintiffs and O.C. and NC., parenting education and support to the plaintiffs, and helping the plaintiffs identify local support and services for O.C. and N.C. Additionally, on January 13, 2014, WCS signed two " therapeutic foster care agreements" with the plaintiffs, one for each boy. The purpose of the agreement was to define the roles and responsibilities of both the plaintiffs and WCS, where WCS agreed to act as a liaison between the plaintiffs and DCF, and also agreed to continue to provide ongoing services and training to the plaintiffs. The plaintiffs allege, however, that despite these agreements, neither the plaintiffs nor O.C. and N.C. received the support they required. For example, while it was identified that O.C. and N.C. required a behaviorist, one was never sent to the plaintiffs' home, and between DCF and WCS, neither could identify which agency was responsible for what.
On December 5, 2013, the defendant Williams informed the plaintiffs that he was researching whether he could change their regular foster parent license into a therapeutic one in order to better suit O.C. and N.C. 's needs. It is unclear whether this " therapeutic foster care agreement" entered into between WCS and the plaintiffs converted the plaintiffs' regular foster care license into a therapeutic license.
Additionally, the plaintiffs allege that on July 16, 2014, the plaintiff Joel made a remark that he had to apply pressure to N.C. 's palm in order to get his attention and control his aggressive, antisocial behavior. As a result of this remark, DCF began an investigation of the plaintiff Joel, and the defendant Royal was assigned as the DCF investigator. As a result of the investigation, the defendant Royal substantiated claims of emotional abuse and neglect; O.C. and N.C. were removed from the plaintiffs' home; and the plaintiffs' foster care license was revoked by WCS on September 23, 2014. The plaintiff Joel appealed the substantiations made by the defendant Royal, and on July 21, 2015, a hearing officer reversed and dismissed all substantiations against the plaintiff Joel. In doing so, the hearing officer stated that the placement should have been preserved, and that the actions of DCF were not in the best interests of N.C. and O.C. Additionally, the hearing officer stated that the plaintiffs were not provided with the appropriate training once O.C. and N.C. were determined to be at the therapeutic level, and were therefore not properly equipped to handle O.C and N.C. 's needs. Upon receiving notice of the hearing officer's decision, the plaintiffs began the process of becoming re-licensed as foster parents through DCF. On November 25, 2015, however, DCF denied the plaintiffs' reapplication, but did not specify the reasons for doing so. As a result of these circumstances, the plaintiffs filed the present twenty-one-count complaint against the defendants, seeking redress in the form of monetary damages and injunctive relief for the alleged psychological, emotional, and financial harm that they have suffered.
The complaint alleges that Katz was " served as Commissioner of the Department of Children and Families (DCF)" and " is sued individually and as Commissioner." Complaint, ¶ 3. As to the remaining individual DCF defendants, the complaint specifically alleges that each is sued only in his or her individual capacity. See Complaint, ¶ ¶ 4-11.
On June 2, 2016, the defendants filed the instant motion to dismiss counts one, three, five, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, and twenty-one of the plaintiffs' complaint, along with a supporting memorandum of law. The defendants move to dismiss counts one and three, the federal law claims, on the ground that the court lacks subject matter jurisdiction because the defendants are being sued in their official and individual capacities for monetary damages and therefore, the action is barred by federal sovereign immunity. The defendants move to dismiss counts five, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, and twenty-one, the state law claims, on the ground that the court lacks subject matter jurisdiction because the defendants are being sued in their official state capacities and therefore, the action is barred by sovereign immunity. In the alternative, if the court were to conclude that the defendants are being sued in their individual capacities, the defendants move to dismiss the state law claims on the ground that the defendants are immune from suit pursuant to statutory immunity.
The plaintiffs filed a memorandum in opposition to the motion to dismiss on June 30, 2016. The matter was heard at the short calendar on July 18, 2016. During oral argument, the plaintiffs' counsel withdrew counts two and twenty-one, as well as the prayer for injunctive relief, from the plaintiffs' complaint. Subsequently, at a status conference held by the court on August 3, 2016, the plaintiffs' counsel indicated that she wished to retract the withdrawal made in open court, which request was conditionally granted by the court. On August 4, 2016, the plaintiffs filed a supplemental memorandum in opposition to the defendants' motion to dismiss stating that the withdrawal at oral argument was made in error and indicating that the plaintiffs were reinstating counts two and twenty-one, as well as the prayer for injunctive relief. In response, on August 29, 2016, the defendants filed a supplemental memorandum in support of the motion to dismiss that addressed the reinstatement of the prayer for injunctive relief. Thereafter, on August 31, 2016, without referencing any individual counts, the plaintiffs filed a withdrawal (entry #135), of all claims for injunctive relief.
Following the status conference, the court issued an order requiring the plaintiffs' counsel to file a supplemental memorandum on or before August 10, 2016, indicating the plaintiffs' counsel's request, on behalf of the plaintiffs, to reinstate the claims in question. The order also allowed the defendants until August 29, 2016, to file a supplemental memorandum in response to any filing by the plaintiffs. Thereafter, without articulation, the plaintiffs filed the referenced withdrawal of all of the claims for injunctive relief, without specific mention of counts two or twenty-one. Prior to the withdrawal, the prayer for relief had requested injunctive relief seeking issuance of a foster care license by DCF and reinstatement of the plaintiffs' foster care license by WCS. Count two is not subject of the defendants' motion to dismiss. Count twenty-one is a claim for monetary damages only and is subject of the defendants' motion to dismiss. Therefore, count twenty-one is fully addressed herein.
I
MOTION TO DISMISS
SUBJECT MATTER JURISDICTION
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 718, 104 A.3d 671 (2014). " [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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).
" 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 . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). " Federal sovereign immunity jurisprudence applies to claims raised under federal law and state sovereign immunity jurisprudence applies to claims raised under state law." Hanton v. Williams, Superior Court, judicial district of New Haven, Docket No. CV-09-5030962-S, (June 3, 2011, Wilson, J.). " 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). Thus, " 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).
" Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). " [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). Nevertheless, it is well established that, " in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).
A.
FEDERAL SOVEREIGN IMMUNITY-COUNTS ONE AND THREE
1. Count One
In support of their motion to dismiss, the defendants argue that count one, directed against Katz, should be dismissed because federal sovereign immunity bars any claims against Katz, in her official capacity, insofar as the plaintiffs seek money damages. The defendants contend that suits brought pursuant to 42 U.S.C. § 1983 seeking monetary damages may not be brought against state officers sued in their official capacities, and therefore, count one must be dismissed. Additionally, the defendants argue that the plaintiffs' allegations that Katz is vicariously liable as the head of DCF for the failure to train and supervise DCF staff are merely conclusory.
As noted previously, the plaintiffs have withdrawn all claims of injunctive relief per docket entry #135.
In their opposition memorandum, the plaintiffs counter that Katz is the final policymaker at DCF and is therefore responsible for the training of DCF employees. As a result, they argue, count one is properly pled and should not be dismissed.
In count one, the plaintiffs seek monetary relief for an alleged violation of 42 U.S.C. § 1983 specifically on the basis of an alleged " failure to train." " The elements of, and the defenses to, a federal cause of action are defined by federal law." (Internal quotation marks omitted.) Sullins v. Rodriguez, 281 Conn. 128, 134, 913 A.2d 415 (2007). As such, " when sovereign immunity is claimed as a defense to a cause of action pursuant to [42 U.S.C.] § 1983, federal sovereign immunity jurisprudence preempts analysis under state law." Id., 133. " Nevertheless, the Supreme Court has taken the view that Congress did not intend to defeat traditional notions of sovereign immunity in enacting § 1983 . . . Instead, these principles inform the meaning of the term 'person' as used in § 1983." (Citation omitted.) Id., 140.
" [A] state is not a person within the meaning of § 1983 and thus is not subject to suit under § 1983 in either federal court or state court . . . A state official sued in his official capacity for monetary damages is also not subject to suit under § 1983. [A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office . . . As such, it is no different from a suit against the State itself." (Citation omitted; internal quotation marks omitted.) Braham v. Newbould, 160 Conn.App. 294, 308-09, 124 A.3d 977 (2015). " A suit generally may not be maintained directly against the State itself, or against an agency or department of the State, unless the State has waived its sovereign immunity . . . Suits seeking monetary damages may not be brought against the state or its agencies and departments, pursuant to § 1983; rather, only suits for injunctive relief may be maintained against the state . . . State officers acting in their official capacity may, typically, only be sued for injunctive or declaratory relief." (Citations omitted; internal quotation marks omitted.) Richards v. Conn. Dep't of Corr., 349 F.Supp.2d 278, 288 (D.Conn. 2004).
" 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." Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 87 (2d Cir. 1991). " [W]hen the face of a complaint fails to state clearly whether a government official is being sued in his official capacity, or his individual capacity, or both, courts look to [t]he course of proceedings to determine the nature of the liability to be imposed." (Internal quotation marks omitted.) Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993), cert. denied, Relin v. Frank, 510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993). Under federal law, an action may be brought against the defendants in both his or her official capacity and individual capacity. See, e.g., Yorktown Medical Laboratory, Inc. v. Perales, supra, 90. In addition, an unambiguous statement in the complaint regarding the capacity in which the defendants are sued may be determinative. See Sullins v. Rodriguez, supra, 281 Conn. 141 (" In this case, the plaintiff's complaint is unambiguous. It states that the defendant 'is sued in his individual capacity.' Such an articulation of the defendant's capacity is sufficient to commence a § 1983 claim against a state officer in his individual capacity").
In the present case, the complaint explicitly states that Katz is being sued both individually and in her capacity as commissioner of DCF. The plaintiffs assert that the " and" in paragraph 3 of the complaint was intended to clarify that the claims against Katz are in her individual capacity only as the final policymaker. Nevertheless, the court finds that this argument is unpersuasive. In paragraphs 4 through 11 of the complaint, the plaintiffs specifically allege that each of the other DCF defendants (other than Katz), are " sued only in [his or her] individual capacity." (Emphasis added.) Paragraph 3 of the complaint, pertaining to Katz, is the only paragraph in which that exclusivity language is lacking. As such, the court concludes that the plaintiffs' 42 U.S.C. § 1983 " failure to train" claim in count one is brought against Katz both individually and in her official capacity. Because the state has not waived sovereign immunity, Katz, as a state employee, is immune from a claim seeking monetary damages resulting from the performance of her official duty. Here, the plaintiffs are seeking monetary damages, and therefore, the 42 U.S.C. § 1983 " failure to train" claim against Katz in her official capacity as set forth in count one is barred by federal sovereign immunity.
As previously stated, paragraph 3 of the complaint provides in relevant part: " Defendant Joette Katz served as the Commissioner of the Department of Children and Families (" DCF") at all times relevant to this Complaint, and is sued individually and as Commissioner." (Emphasis added.)
Next, because the complaint explicitly states that Katz is also being sued in her individual capacity, the court must also address the issue of whether federal sovereign immunity bars an individual liability suit insofar as the plaintiffs seek any form of relief.
" [S]tate officials, sued in their individual capacities, are 'persons' within the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the 'official' nature of their acts." Hafer v.Melo, 502 U.S. 21, 31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). See also Sullins v. Rodriguez, supra, 281 Conn. 141 (" [w]e therefore conclude that plaintiff's action is against defendant in his individual capacity, and that doctrine of sovereign immunity does not bar plaintiff's claim").
The defendants argue that because federal law does not permit an individual liability suit on the basis of vicarious liability, count one against Katz in her individual capacity must be also dismissed. Nonetheless, a motion to dismiss is not the proper procedural vehicle to challenge the legal sufficiency of the plaintiffs' cause of action against Katz in her individual capacity. See Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014) (" court deciding motion to dismiss must determine not merits of claim or even its legal sufficiency, but rather, whether claim is one that court has jurisdiction to hear and decide" [internal quotation marks omitted]). Instead, a motion to strike is the appropriate method for addressing whether the plaintiffs' claim is legally sufficient. See Caruso v. Bridgeport, 285 Conn. 618, 629-30, 941 A.2d 266 (2008) (" motion to strike . . . rather than motion to dismiss, is proper vehicle to attack legal sufficiency of complaint"). See also Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993) (" proper method to challenge legal sufficiency of complaint is to make motion to strike prior to trial"). Therefore, the 42 U.S.C. § 1983 " failure to train" claim in count one against Katz in her individual capacity is not barred by federal sovereign immunity and is not subject to dismissal for lack of subject matter jurisdiction.
2. Count Three
The defendants also argue that count three, directed against the defendants Royal, Zuccarelli, Acosta, Sikora-Kowolik and Williams, in their individual capacities, should be dismissed because there is no federally recognized liberty interest to support a federal " stigma-plus" claim. In their opposition memorandum, the plaintiffs do not address count three.
As with the individual capacity claim against Katz in count one, " state officials, sued in their individual capacities, are 'persons' within the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the 'official' nature of their acts." Hafer v. Melo, supra, 502 U.S. 31. See also Sullins v. Rodriguez, supra, 281 Conn. 141 (" [w]e therefore conclude that plaintiff's action is against defendant in his individual capacity, and that doctrine of sovereign immunity does not bar plaintiff's claim").
Specifically, the defendants argue that because there is no federally recognized liberty interest that supports a federal " stigma-plus" claim, count three against the named defendants must be dismissed. Nonetheless, a motion to dismiss is not the proper procedural vehicle to challenge the legal sufficiency of the plaintiffs' cause of action against the named defendants in their individual capacities. See Hinde v. Specialized Education of Connecticut, Inc., supra, 147 Conn.App. 740-41 (" court deciding motion to dismiss must determine not merits of claim or even its legal sufficiency, but rather, whether claim is one that court has jurisdiction to hear and decide" [internal quotation marks omitted]). Instead, a motion to strike is the appropriate method for addressing whether the plaintiffs' claim is legally sufficient. See Caruso v. Bridgeport, supra, 285 Conn. 629-30 (" motion to strike . . . rather than motion to dismiss, is proper vehicle to attack legal sufficiency of complaint"). See also Gulack v. Gulack, supra, 30 Conn.App. 309 (" proper method to challenge legal sufficiency of complaint is to make motion to strike prior to trial").
Therefore, the fourteenth amendment due process " stigma-plus" claim in count three against the defendants Royal, Zuccarelli, Acosta, Sikora-Kowolik and Williams, in their individual capacities, is not barred by federal sovereign immunity and is not subject to dismissal for lack of subject matter jurisdiction.
B
STATE SOVEREIGN IMMUNITY
The defendants argue that counts five, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty and twenty-one should be dismissed because the defendants are being sued in their official state capacities and therefore, the claims against them are barred by sovereign immunity. The plaintiffs counter that sovereign immunity is not implicated because each defendant is being sued in his or her individual capacity. Furthermore, the plaintiffs assert that none of the four Spring criteria have been met.
The law pertaining to the doctrine of sovereign immunity is well-settled. " In Connecticut, we have long recognized the validity of the common-law principle that the state cannot be sued without its consent and that since the state can act only through its officers and agents a suit against a state officer is in effect one against the sovereign state." Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). " We have 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.) Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003). " This [exception to sovereign immunity] does not apply, however, to claims against the state for monetary damages." Id., 315. See also Prigge v. Ragaglia, 265 Conn. 338, 349, 828 A.2d 542 (2003) (" exception to doctrine of sovereign immunity for actions by state officers in excess of their statutory authority applies only to actions seeking declaratory or injunctive relief, not to actions for money damages").
" Whether a particular action is one against the state is not determined solely by referring to the parties of record. The fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . . The vital test is to be found in the essential nature and effect of the proceeding." (Citations omitted.) Somers v. Hill, 143 Conn. 476, 479, 123 A.2d 468 (1956). To determine whether an action is against the state or against a defendant in its individual capacity, the court must consider whether: " (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." Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975). " If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred." Kenney v. Weaving, 123 Conn.App. 211, 216, 1 A.3d 1083 (2010).
The court in Spring stated that " [t]he essential characteristics of a 'public office' are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government . . . A key element of this test is that the 'officer' is carrying out a sovereign function." (Citation omitted.) Spring v. Constantino, supra, 168 Conn. 568-69.
As to the first Spring criterion, the plaintiffs' complaint specifically references the job title of each defendant within DCF and, furthermore, each count concerns activities directly affiliated with each defendants' state job titles. Thus, the first criterion concerning whether a state official has been sued is satisfied. Additionally, the second criterion is satisfied as all of the claims contained in the complaint concern matters in which the individual defendants were representing DCF.
As to the third criterion, the conduct alleged in each count stems from the defendants' " job-related duties." In Kenney v. Weaving, supra, 123 Conn.App. 211, the court applied the four Spring criteria to determine whether the commissioner of the department of motor vehicles had been sued in his official or individual capacity. In assessing the third criterion, the court found the state to be the real party in interest, specifically noting that the " [d]amages are sought for injuries allegedly caused by the defendant for performing or not performing acts that are part of his official duties . . . Clearly, the defendant was sued only because he was the commissioner of the department at the time of the accident." (Citation omitted; emphasis added.) Id., 216-17. In the present case, the plaintiffs are seeking damages for injuries allegedly caused by the defendants for actions, or inactions, performed as part of their official duties, including for " failure to provide services, " " woefully inadequate investigation, " and " woefully inadequate handling of the placement." In essence, the defendants are being sued solely because of their positions within DCF and, therefore, the third criterion, with respect to the state being the real party in interest, is satisfied.
In Dobson v. Weller, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-14-6025232-S, (April 9, 2015, Agati, J.), the court noted that " [t]he defendants' relationship to the state and their alleged ministerial duties shape the plaintiffs' allegations of recklessness in each claim, " and that " [a]lthough the plaintiffs do not identify the source of these 'ministerial duties, ' the duties obviously are job-related rather than personal policies, practices, procedures, or customs."
Finally, the fourth criterion is satisfied because holding DCF employees liable for the inadequate handling of O.C. and N.C. 's case would reasonably impact the manner in which DCF conducts future investigatory and placement-related services. See Dobson v. Weller, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-14-6025232-S, (April 9, 2015, Agati, J.) (" [h]olding probation officers liable for inadequately responding to probationers under their supervision would necessarily impact manner in which state conducts its adult probationary activities"). Thus, because all four Spring criteria are satisfied, the plaintiffs' claims are reasonably construed to be against the defendants in their official capacities rather than their individual capacities.
Furthermore, the exception to sovereign immunity is not applicable here. Based on their withdrawal of all claims for injunctive relief, per docket entry #135, the plaintiffs' prayer for relief contains only a request for monetary damages, including compensatory and punitive damages, attorneys fees, costs of suit, and interest. Because the exception only applies to claims for declaratory or injunctive relief, the court need not determine whether the defendants were acting in excess of their authority. Therefore, counts five, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty and twenty-one are barred by state sovereign immunity and must be dismissed for lack of subject matter jurisdiction.
C
STATE STATUTORY IMMUNITY
In the alternative, in the defendants' memorandum of law in support of their motion to dismiss, the defendants argue that if the court determines the defendants are being sued in their individual capacities, counts five, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty and twenty-one should be dismissed because the actions are barred by statutory immunity pursuant to General Statutes § 4-165. The defendants further argue that the plaintiffs have not alleged any facts to support a claim that its actions were " wanton, reckless or malicious, " per the exception to statutory immunity afforded through § 4-165 (a). ln response, the plaintiffs argue that the complaint alleges improper and self-serving motives and wanton, reckless, and malicious conduct sufficient to survive a motion to dismiss on the ground of statutory immunity.
As stated elsewhere in this memorandum in the discussion of sovereign immunity, despite the plaintiffs' statements in the complaint that the DCF defendants are being sued in their individual capacities, the court has determined that they are all sued in their official capacities. The return of service further supports this conclusion. The return indicates that service was made on staff counsel for DCF at the various offices where the defendants were assigned. None of the defendants were served in accordance with General Statutes § 52-57(a). See Edelman v. Page, 123 Conn.App. 233, 243, 1 A.3d 1188 (2010) (stating that service of process on state defendants, sued in their individual capacities, requires service at their usual places of abode). Although the motion to dismiss was timely filed, pursuant to Practice Book § 10-30 within thirty days of the appearance of defendants' counsel, it did not raise the lack of personal jurisdiction or insufficiency of service of process as a ground. Accordingly, those claims are deemed to be waived. " Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Footnote omitted; internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007). See also Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011) (" failure to comply with statutory requirements of service renders complaint subject to motion to dismiss on ground of lack of personal jurisdiction").
General Statutes § 4-165(a) provides in relevant part: " 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." Additionally, General Statutes § 4-141(5)(A) defines state officers and employees as including " every person elected or appointed to or employed in any office, position or post in the state government, whatever such person's title, classification or function and whether such person serves with or without remuneration or compensation . . ." [S]tatutory immunity provided by § 4-165 applies where sovereign immunity does not apply." Shay v. Rossi, 253 Conn. 134, 164, 749 A.2d 1147 (2000), overruled on other grounds by Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003). " By its own terms, § 4-165 applies only to state officers and employees sued in their personal capacities . . ." (Emphasis added.) Hanna v. Capitol Region Mental Health Center, 74 Conn.App. 264, 268, 812 A.2d 95 (2002). In determining whether the defendants are entitled to statutory immunity, the court must " examine the pleadings to decide if the plaintiff has alleged sufficient facts . . . to support a conclusion that the [defendants were] acting outside the scope of [their] employment or wilfully or maliciously." (Internal quotation marks omitted.) Antinerella v. Rioux, 229 Conn. 479, 489, 642 A.2d 699 (1994), overruled on other grounds by Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003).
Although the Supreme Court has not definitively determined the meaning of wanton, reckless, or malicious as used in § 4-165, common law provides that " the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 379, 802 A.2d 814 (2002). " [The Connecticut Supreme Court sees] no reason to give a different meaning to that phrase as used in § 4-165." Shay v. Rossi, supra, 253 Conn. 181-82.
In Shay v. Rossi, supra, 253 Conn. 180, the court addressed whether claims against certain DCF employees in their individual capacities were barred by the statutory immunity provided through § 4-165. In that case, the court noted that prior to the filing of neglect and abuse petitions against the plaintiffs, the defendants had received written statements from four physicians, " a common theme of which was that none of [the plaintiffs' children] was a victim of neglect or abuse, and that they should not be removed from the home." Id., 176. In addition, on the day that the neglect and abuse petitions were filed, one of the defendants admitted to the plaintiffs that " the case was a major screw up . . . and that a big mistake had been made here." (Internal quotation marks omitted.) Id. Furthermore, after the filing of the petitions, the court noted several other factual allegations of improper motives on the part of the defendants, including that despite a report from a family preservation and reunification program therapist stating the children were safe and there was no reason to continue in-home supervision, DCF " decided to keep the neglect and abuse petitions on file, to ask for a continuance on the scheduled court date, and to defer for an additional month thereafter the decision on whether to withdraw the petitions." Id., 178.
The court in Shay found that the defendants could be found to have acted wantonly, recklessly, or maliciously, and that the defendants had " acted with improper and self-serving motives in filing the neglect and abuse petitions, in pursuing the plaintiffs for as long as they were pursued, and in pursuing the in-home supervision of the family for as long as it was pursued." Shay v. Rossi, supra, 253 Conn. 182. Additionally, the court noted that the motives, as supported by the aforementioned factual allegations, " were that by the time the petitions were filed and by the time that the in-home supervision was ordered to continue, the defendants knew that these actions were legally and factually unjustified; that the defendants filed the petitions knowing that they were unwarranted; and that they nonetheless pursued the petitions and the in-home supervision of the family, not for the statutory purpose of protecting any of the Shay children, but in order to justify those prior unjustified actions." Id.
1. Count Five
In the present case, in count five, the plaintiffs allege a cause of action for breach of contract against the defendants Zuccarelli, Acosta, Sikora-Kowolik and Williams on the ground that the named defendants " failed to provide any services" in accordance with an alleged contract between DCF and WCS. The plaintiffs allege that the defendant Williams " told [the plaintiffs] they could only use services provided by WCS, " and that " DCF, per defendant Williams, ordered [the plaintiffs] that they were not allowed to find services on their own." Furthermore, the plaintiffs allege that Williams knew WCS was not providing services. Nonetheless, there are no factual allegations from which the court can infer that the named defendants' conduct, even taken as true, rises to the level of wanton, reckless, or malicious conduct, as required by the exception to statutory immunity provided by § 4-165, and therefore, count five is barred by state statutory immunity and must be dismissed for lack of subject matter jurisdiction.
2. Counts Twelve and Thirteen
In counts twelve and thirteen, the plaintiff Joel alleges causes of action for gross negligence and recklessness, respectively, against the defendant Royal on the grounds that her " wholly inadequate investigation constituted gross breaches of [her duty to act with reasonable care towards plaintiff Joel] and [gross or reckless] deviations from accepted professional standards." The plaintiff Joel further alleges that Royal had an " inexcusable attitude, " as evidenced by a situation where she visited the plaintiffs' home and told the plaintiff Joel to " hurry up and get the damn door open so I can get my ass inside there." Additionally, the plaintiff Joel alleges that Royal did a " sloppy job" on the investigation. Nonetheless, there are no factual allegations in counts twelve and thirteen from which the court can infer that Royal's conduct, even taken as true, rises to the level of wanton, reckless, or malicious conduct, as required by the exception to statutory immunity provided by § 4-165, and therefore, counts twelve and thirteen are barred by state statutory immunity and must be dismissed for lack of subject matter jurisdiction.
3. Counts Fourteen and Fifteen
In counts fourteen and fifteen, the plaintiffs allege causes of action for gross negligence and recklessness, respectively, against the defendants Zuccarelli, Acosta, Sikora-Kowolik and Williams on the grounds that the " woefully inadequate handling of the placement . . . constituted gross breaches of [their duty to act with reasonable care towards the plaintiffs] and [gross or reckless] deviations from accepted professional standards." The plaintiffs allege the named defendants knew that O.C. and N.C. were too young for WCS services, but that they " needed to find a new placement quickly as the boys' time at the second respite home was about up." Additionally, the plaintiffs allege that the named defendants " never identified to [the plaintiffs] at the time of [placement] that the boys needed a therapeutic home, " and that the plaintiffs did not have a therapeutic license at the time of placement. The plaintiffs further allege that the named defendants failed to assign a behaviorist to observe O.C. and NC's behaviors, failed to provide adequate services through WCS, and that DCF " seized upon questionable but non-abusive conduct by [the plaintiff Joel], in an attempt to rid itself of its horrendous misconduct in this matter." Nonetheless, there are no factual allegations in counts fourteen and fifteen from which the court can infer that the named defendants' conduct, even taken as true, rises to the level of wanton, reckless, or malicious conduct, as required by the exception to statutory immunity provided by § 4-165, and therefore, counts fourteen and fifteen are barred by state statutory immunity and must be dismissed for lack of subject matter jurisdiction.
4. Counts Sixteen and Seventeen
In counts sixteen and seventeen, the plaintiffs allege causes of action for gross negligence and recklessness, respectively, against the defendants Johnson, Kelley, and Roman-Vallario on the grounds that the " woefully inadequate handling of [the plaintiff's] foster license application constituted gross breaches of [their duty to act with reasonable care towards the plaintiffs] and [gross or reckless] deviations from accepted professional standards." The plaintiffs allege that it " offered all their evidence but [the named defendants] declined to review, " and that the named defendants later denied the plaintiffs' application for a foster care license, allegedly because of the plaintiffs' tarnished reputation from the substantiation, without providing specific reasons for the denial as required by Regs., Conn. State Agencies § 17a-150-77(d). Nonetheless, there are no factual allegations from which the court can infer that the named defendants' conduct, even taken as true, rises to the level of wanton, reckless, or malicious conduct, as required by the exception to statutory immunity provided by § 4-165, and therefore, counts sixteen and seventeen are barred by state statutory immunity and must be dismissed for lack of subject matter jurisdiction.
Regs., Conn. State Agencies § 17a-150-77(d) provides: " The child placing agency shall notify, by mail, each person applying to become a foster family or prospective adoptive family of the agency's decision. In the case of denial, the agency shall state the specific reasons for the denial citing pertinent regulations and child placing agency policies."
5. Count Eighteen
In count eighteen, the plaintiffs allege a cause of action for intentional infliction of emotional distress against all defendants on the grounds that their actions were " intentional, willful and deliberate and caused the plaintiffs to suffer from severe emotional distress, which the defendants knew or should have known would have resulted from their actions, " and that " [s]aid conduct was extreme and outrageous . . . was the cause of plaintiffs' distress . . . [and] the emotional distress sustained by plaintiffs was severe." As summarized in their memorandum of law in opposition to the motion to dismiss, the plaintiffs assert that " [t]he complaint alleges a grossly inadequately planned and egregiously managed foster care placement. The Waterbury DCF defendants misdiagnosed the children at the outset of the placement; the plaintiffs clearly needed more services from the outset of the placement; the Waterbury DCF defendants grossly mismanaged the services and refused to allow [the plaintiffs] to get services on their own and even pay for those services themselves; an investigation began on flimsy evidence that never should have been substantiated; a hearing officer reversed DCF's substantiation. The Norwich DCF defendants denied the foster care license application submitted by [the plaintiffs] without stating any reasons, as required by statute and regulations. The Norwich DCF defendants were influenced by the stigma from the investigation and substantiation of [the plaintiffs.]" Nonetheless, there are no factual allegations from which the court can infer that the defendants' conduct, even taken as true, rises to the level of wanton, reckless, or malicious conduct, as required by the exception to statutory immunity provided by § 4-165, and therefore, count eighteen is barred by state statutory immunity and must be dismissed for lack of subject matter jurisdiction.
6. Count Nineteen
In count nineteen, the plaintiffs allege a cause of action for negligent infliction of emotional distress against all defendants on the grounds that their conduct " created an unreasonable risk of causing plaintiffs' emotional distress . . . [that the] plaintiffs' distress was foreseeable . . . [that] the emotional distress was severe enough that it might result in illness or bodily harm . . . [and that the] defendants' conduct was the cause of plaintiffs' distress." Nonetheless, there are no factual allegations from which the court can infer that the defendants' conduct, even taken as true, is indicative of a wanton, reckless, or malicious state of mind. Rather, a claim of negligent infliction of emotional distress necessarily implies the defendants acted negligently, and therefore not wantonly, recklessly, or maliciously. Because the alleged conduct does not rise to the level of wanton, reckless, or malicious conduct, as required by the exception to statutory immunity provided by § 4-165, count nineteen is barred by state statutory immunity and must be dismissed for lack of subject matter jurisdiction.
7. Count Twenty
In count twenty, the plaintiff Joel alleges a cause of action for defamation against the defendant Royal on the grounds that she allegedly published " defamatory statements in her investigation . . . [that] the defamatory statements identified plaintiff Joel Shaw to third persons . . . [that] the defamatory statements were published to third persons . . . [and that] plaintiff Joel suffered injury as a result of the defamatory statements." The plaintiff Joel alleges that Royal " testified falsely" at the hearings on the plaintiff Joel's appeal of the substantiation based on the hearing officer's determination that Royal was " unpersuasive in her testimony about her conclusions from her investigation, " and that " [a]lthough she testified that the children, 'cried out in pain, ' which would surely be an important fact to include in her investigation protocol, her protocol contains no such description. While [Royal] testified that [the plaintiff Joel] said he used 'pressure points, ' in the protocol this is also omitted." Nonetheless, the hearing officer's determination that Royal's testimony was " unpersuasive, " and that she testified to points not included in her protocol, do not necessarily imply that she " testified falsely." These factual allegations are not sufficient for the court to infer that Royal's conduct, even taken as true, rises to the level of wanton, reckless, or malicious conduct, as required by the exception to statutory immunity provided by § 4-165, and therefore, count twenty is barred by state statutory immunity and must be dismissed for lack of subject matter jurisdiction.
8. Count Twenty-One
In count twenty-one, the plaintiffs allege a cause of action for violation of their rights to due process under Conn. Const., art. I, § 10 against the defendants Zuccarelli, Acosta, Sikora-Kowolik, Williams and Royal. In the plaintiffs' complaint, however, the only factual allegations that would potentially support a due process violation concern the revocation of the plaintiffs' foster care license by WCS and the denial of the plaintiffs' foster care application by DCF. Nevertheless, a violation of due process claim regarding the denial of the plaintiffs' foster care application would appropriately be against, if anyone, the defendants Johnson, Kelley, and Roman-Vallario, and not the named defendants in count twenty-one. Thus, there are no factual allegations from which the court can infer that the defendants' conduct is indicative of a wanton, reckless, or malicious state of mind. Because there is no conduct alleged in support of this count, count twenty-one is barred by state statutory immunity, pursuant to § 4-165, and therefore, must be dismissed for lack of subject matter jurisdiction.
CONCLUSION
Accordingly, for all the foregoing reasons, the defendants' motion to dismiss count one of the plaintiffs' complaint against Katz in her official capacity is hereby granted. The defendants' motion to dismiss counts five, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, and twenty-one of the plaintiffs' complaint are also hereby granted. Finally, the defendants' motion to dismiss count one, as against Katz in her individual capacity, and count three, as against the remaining defendants in their individual capacities, are hereby denied.
Connecticut courts have routinely found DCF employees to satisfy the " state official" prong of Spring . See Eaddy v. Dept. of Children & Families, Superior Court, judicial district of Hartford, Docket No. CV-10-6013363-S, (December 10, 2012, Wagner, J.T.R.) (finding DCF social worker satisfies state official prong); Smith v. Dunbar, Superior Court, judicial district of New Haven, Docket No. CV-08-4031442-S, (November 26, 2008, Keegan, J.) (same); Sienkiewicz v. Ragaglia, Superior Court, judicial district of Fairfield, Docket No. CV-03-0401770-S, (April 3, 2007, Matasavage, J.) (same).