Opinion
No. CV 03-0401770 S
April 3, 2007
MEMORANDUM OF DECISION
The defendants, Kristine Ragaglia, Robert Murphy, Christine Lupke, Aleta Markham and Ileana Velazquez, have moved to dismiss this action on the ground that the court lacks subject matter jurisdiction. Specifically, the defendants argue that they, as state employees, are immune from suit based on the doctrine of sovereign immunity.
On April 8, 2003, plaintiffs, Michele and Craig Sienkiewicz, individually and on behalf of their minor sons, Kevin and Justin Sienkiewicz, filed a ten-count complaint against the following five defendants, all of whom are employees of the department of children and families (DCF): Kristine Ragaglia, commissioner; Robert W. Murphy III, social worker; Christine Lupke, investigation supervisor; Aleta Markham, social worker; and Ileana Velazquez, program supervisor.
The action arises out of the defendants' participation in events that led to the department's removal of Kevin and Justin from the custody of their parents for more than two months in the year 2000. The plaintiffs allege the following facts in the complaint. On February 21, 2000, Michele Sienkiewicz brought Kevin, who was approximately seven weeks old, to the pediatrician because he was congested. The pediatrician recommended a chest X ray, which revealed numerous rib fractures. The pediatrician reported these results to DCF as suspected abuse. The hospital performed twenty-two additional X rays of Kevin's body, which revealed no further fractures. DCF interviewed both parents that day, and they both denied that they had injured Kevin or had any knowledge of the existence or cause of the fractures. On the same day, DCF instituted a ninety-six hour hold on Kevin who remained at the hospital for further observation, and removed Justin, who was approximately three years and nine months old, to the home of his maternal aunt, twenty-seven miles from his parents' home.
The Newtown police department also interviewed the plaintiffs and closed their investigation without bringing charges against either parent.
On February 22 and 23, 2000, Murphy, the DCF social worker assigned to the case, interviewed Michele Sienkiewicz' sister and mother, both of whom stated that they had never seen the parents abuse either child. On February 25, 2000, the Superior Court for juvenile matters at Danbury issued an ex parte order of temporary custody as to both children. In addition, on that date, DCF filed co-terminous petitions to terminate the parents' parental rights as to both children. On that day, DCF also placed Kevin in foster care, rather than with family members, where he remained until the end of the hearing on the order of temporary custody, on May 3, 2000.
The plaintiffs further allege that Murphy told the parents that it would be at least a year before their children would be returned to them and that Craig Sienkiewicz would never see his children again. In addition, when the parents expressed concern about the radiation levels Kevin was receiving from the numerous X rays, Murphy told them they no longer had rights concerning their children's care.
Beginning on March 29, 2000, the juvenile court held a fourteen-day contested hearing on the order of temporary custody. On May 3, 2000, after hearing testimony from DCF, the parents and medical expert witnesses for both sides, the court held that DCF had not met its burden of proof to sustain a finding of abuse, and dismissed the order of temporary custody. The court determined that the fractures were either a result of Kevin's labor and delivery or were caused by accident. The court further ordered DCF to return both children to their parents' custody immediately following its ruling. On June 16, 2000, the juvenile court dismissed DCF's co-terminous petitions. DCF filed two appeals, but eventually withdrew them in October 2000.
The plaintiffs then initiated the present action. In counts one through six, respectively, both parents allege claims against all five defendants for intentional infliction of emotional distress, common-law vexatious litigation, vexatious litigation pursuant to General Statutes § 52-568, violation of their federal civil rights pursuant to 42 U.S.C. § 1983, violation of their state constitutional rights and privileges, slander and defamation. In counts seven through ten, respectively, both children allege claims against all five defendants for common-law vexatious litigation, vexatious litigation pursuant to § 52-568, violation of their civil rights pursuant to 42 U.S.C. § 1983 and violation of their state constitutional rights and privileges. The plaintiffs seek monetary damages, costs and attorneys fees, and "[a] mandatory injunction ordering the Defendants to expunge all DCF records reflecting or relating to the . . . incidents."
On July 28, 2003, DCF filed a motion to dismiss the complaint on the ground that the court lacks subject matter jurisdiction over the action because the plaintiffs' claims are barred by the doctrine of sovereign immunity. DCF additionally submitted a memorandum of law in support of the motion. On April 1, 2005, the plaintiffs filed a memorandum of law in opposition and on October 3, 2006, DCF filed a motion in further support of their motion. The matter was heard on the short calendar on January 16, 2007.
I.
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
II. A
As a preliminary matter, the court must determine whether the plaintiffs have brought suit against the defendants in their official or individual capacities. The doctrine of sovereign immunity bars state law claims for monetary relief against defendants who are sued in their official capacities, absent authorization from the office of the claims commissioner, but does not bar such claims against the defendants who are sued in their individual capacities. See Miller v. Egan, 265 Conn. 301, 307, 828 A.2d 549 (2003). The defendants argue that sovereign immunity bars the action because the plaintiffs are suing the defendants in their official capacities as officers and employees of the state, rather than in their individual capacities. They note that paragraph twelve of the plaintiffs' complaint states that all of the defendants "were employees of the State of Connecticut and acting under color of state law," and also note that the complaint was served only upon the attorney general, pursuant to General Statutes § 52-64, and not upon the individual defendants at their abodes. They additionally argue that the state need not be named as a defendant to evidence an intent to sue the defendants in their official capacities. In addition, the defendants assert that regardless of the plaintiffs' intentions, the contents of the complaint demonstrate that they are bringing claims against the defendants in their official capacities.
General Statutes § 52-64 provides in relevant part: "Service of process in action against state. Service of civil process in any civil action or proceeding maintainable against . . . the state or against any . . . department or administrative tribunal thereof, or against any officer, servant, agent or employee of the state or of any such . . . department or administrative tribunal, as such, may be made by a proper officer (1) leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General at the Attorney General's office in Hartford, or (2) sending a true and attested copy of the process, including the summons and complaint, by certified mail, return receipt requested, to the Attorney General at the Attorney General's office in Hartford."
The plaintiffs object by arguing that they properly served the defendants pursuant to § 52-64 because they allege claims against the defendants in their official and individual capacities. The plaintiffs also point out that the state is not a party to the action.
The determination of whether the plaintiffs allege claims against the defendants in their individual capacities is governed by the test set forth in Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975), as described more recently in Miller v. Egan, supra, 265 Conn. 308. The court in Spring "set forth four criteria to determine whether an action is in effect, one against the state and cannot be maintained without its consent; (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 308. Additionally, "[t]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . . The vital test is to be found in the essential nature and effect of the proceeding." (Internal quotation marks omitted.) Id.
The Appellate Court recently considered whether the attorney general was sued in his official or individual capacity in Hultman v. Blumenthal, 67 Conn.App. 613, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). In Hultman, the plaintiffs sued the attorney general for defamation on the basis of statements he made about them regarding a state investigation into their business practices. The attorney general made the statements to a newspaper reporter and in a news release that he posted on his official web site. Id., 614. It was unclear from the complaint whether the plaintiffs were suing the attorney general in his official or individual capacity, and the defendant moved to dismiss based on the doctrines of sovereign and statutory immunity, respectively. Id. The court first looked to the summons, which described the defendant as "Attorney General," noting that "the identities of the parties are determined by their description in the summons." Id., 620. It then looked at the four criteria set forth in Spring, and determined that the action was against the attorney general in his official capacity because all four criteria were satisfied. Id., 621. The court specifically noted that any judgment regarding liability would operate to control the attorney general's state activities, especially his capacity to inform the public, and also that the liability for the damages sought was that of the state. Id.
In the present case, the summons names the five defendants separately by name and does not refer to their job titles. It does, however, list each defendant's address as "c/o Office of the Attorney General," which, under Hultman, lends some support to the defendants' argument that the plaintiffs' action is brought against them in their official capacities. In at least one case, a judge of the Suprior Court has determined that service of process on a state official pursuant to § 52-64 "is insufficient to confer jurisdiction over him in his individual or personal capacity." Sala v. Metro-North Commuter Railroad Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 03 0199222 (November 22, 2005, Tobin, J.) ( 40 Conn. L. Rptr. 329, 330).
Two federal cases also support the conclusion that the defendants in the present case were served in their official capacities only. Burgos v. Dept. of Children and Families, 83 F.Sup.2d 313, 316 (D.Conn. 2000); Banerjee v. Roberts, 641 F.Sup. 1093, 1099 (D.Conn. 1986). In both cases, the court determined that service of process on the attorney general pursuant to General Statutes § 52-64 did not confer jurisdiction over the defendants, state officials, in their personal capacities.
Looking beyond the summons to the four Spring criteria leads to the same conclusion. The first two criteria are satisfied, despite the plaintiffs' naming the defendants individually and by job title in the caption of the complaint because each defendant is a state employee and the suit concerns a matter in which they represent the state. The third criterion, that the state is the real party against whom relief is sought, is satisfied because the state will be liable for the plaintiffs' claims for damages. See General Statutes § 5-141d. Finally, the fourth criterion, that the judgment will operate to control the operations of the state, is likewise satisfied. Any finding against the DCF employees undoubtedly will have an effect on the procedures used by the agency in future cases, including its determination of what actions it may take to protect children when their doctors have reported incidents of suspected child abuse and neglect to the agency.
General Statutes § 5-141d(a) provides in relevant part: "The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141 . . . from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person's civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious."
Therefore, an examination of the nature and effect of the present proceedings thus demonstrates that the plaintiffs have brought the present action against the defendants in their official capacities only.
B
Having concluded that the plaintiffs brought the present suit against the defendants in their official capacities, the court next considers whether the doctrine of sovereign immunity shields the defendants from the plaintiffs' claims alleging monetary damages. The defendants assert that the doctrine of sovereign immunity bars the plaintiffs' claims because it applies to them in their official capacities.
"[W]e have long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . We have held that a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that . . . the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . ." (Citations omitted; internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 301, 313-14 (2003). Pursuant to this standard, in order for the plaintiffs' claims for monetary relief against the defendants in their official capacities to withstand the doctrine of sovereign immunity they must demonstrate that the legislature waived the doctrine of sovereign immunity, either by statute or via the office of the claims commissioner. Here, the plaintiffs argue that the doctrine of sovereign immunity does not apply because they have alleged that the defendants exceeded their statutory authority and that the defendants violated the plaintiffs' state and federal constitutional rights.
With respect to the plaintiffs' first argument, the Supreme Court has held that, unlike a claim seeking injunctive and declaratory relief, a claim for monetary damages also implicate the exception for conduct by state officials acting in excess of their statutory authority. Miller v. Egan, supra, 265 Conn. 315. As to the second argument, the Supreme Court has held that state constitutional claims against the state for monetary damages also implicate the common-law doctrine of sovereign immunity. Doe v. Heintz, 204 Conn. 17, 35, 526 A.2d 1318 (1987).
Furthermore, the plaintiffs have not pointed to any statute waiving sovereign immunity for claims for monetary relief such as those they allege in their complaint. Absent such statutory authority, "[w]hen a plaintiff brings an action for money damages against the state, [the plaintiff] must proceed through the office of the claims commissioner pursuant to chapter 53 of the General Statutes, §§ 4-141 through 4-165. Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity." Prigge v. Ragaglia, 265 Conn. 338, 349, 828 A.2d 542 (2003). In the present case, neither party has presented any evidence that the plaintiffs received permission from the office of the claims commissioner to bring their claims for monetary damages against the defendants. Accordingly, the plaintiffs' claims for monetary relief are barred by the doctrine of sovereign immunity.
III.
As to the plaintiffs' claims for injunctive relief, the defendants argue that the doctrine of sovereign immunity likewise serves as a bar. In their complaint, the plaintiffs specifically allege that the defendants violated the administrative mandates governing the investigation of their case, exceeding their statutory authority by: (1) failing to investigate and initiate services for the plaintiffs, failing to investigate the option of placing Kevin with relatives rather than in foster care; (2) determining that the plaintiffs were unable or unwilling to benefit from reunification efforts; and (3) erroneously stating in their grounds for termination that the plaintiffs "have killed through deliberate, non accidental act." The defendants argue that all of the conduct challenged in the case "falls within the very heart of DCF's statutory responsibilities" and that the plaintiffs have not alleged that they acted for any improper or unauthorized purpose or committed conduct that was sufficiently egregious to defeat sovereign immunity.
Our Supreme Court has explained that "[a] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that . . . 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, supra, 265 Conn. 314. Furthermore, "[f]or a claim . . . alleging that an officer acted in excess of statutory authority, the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations . . . In 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." (Citation omitted; internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 754, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
The plaintiffs in the present case allege facts specific only as to one defendant, Robert Murphy. Specifically, they allege that Murphy conducted interviews and that he told the plaintiffs that they would not regain custody of their children for at least one year, that Craig Sienkiewicz would never again see his children, and that the parents had no right to protest the level of radiation Kevin received from the X rays. These facts are insufficient to reasonably support the plaintiffs' allegations that the defendants' actions exceeded their statutory authority. Rather, once Kevin's fractures were reported to DCF, the agency had a statutory duty to conduct an investigation. The subsequent investigation fell squarely within DCF's purview under General Statutes § 17a-101 et seq., and included numerous family interviews and consultations with physicians. In addition, the culmination of the investigation was a fourteen-day contested temporary custody hearing in which both sides presented medical expert testimony supporting their arguments. These facts do not reasonably support the plaintiffs' contentions and do not point to the conclusion that the defendants exceeded their statutory authority. The plaintiffs are thus barred under the doctrine of sovereign immunity from pursuing their claims for injunctive relief because the facts alleged in their complaint do not support their allegations that the defendants exceeded their statutory authority.
IV.
The defendants are not similarly shielded from liability for money damages under the plaintiffs' federal civil rights claims made pursuant to 42 U.S.C. § 1983. In reviewing claims made under federal law, our Supreme Court has determined that "federal law must govern that inquiry," and not state law. Sullins v. Rodriguez, 281 Conn. 128, 136, 913 A.2d 415 (2007). The court explained that "Congress did not intend to defeat traditional notions of sovereign immunity in enacting § 1983." Id., 140. Nevertheless, "§ 1983 does authorize actions against state officers for damages arising from official acts, if they are sued in their individual capacities." (Emphasis in original.) Id. The court then explained "[p]ersonal-capacity suits . . . seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, [o]n the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right . . . In other words, the requirement of action under state law means that a § 1983 defendant's liability is derived from his authority as an official . . . Thus, the phrase `acting in their official capacities' . . . is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury." (Citations omitted; emphasis in original; internal quotation marks omitted). Id., 140. The plaintiff in Sullins specified in his complaint that he was suing the defendant in the defendant's official capacity. Id., 141. That "unambiguous" articulation, the court determined, was "sufficient to commence a § 1983 claim against a state officer in his individual capacity" and sovereign immunity did not bar the plaintiff's federal claim. Id. In contrast, the court explained that, if "a plaintiff seeks relief that only the state can provide, he or she may not overcome sovereign immunity simply by suing an individual actor." (Emphasis in original.) Id., 143.
Section 1983 of title 42 of the United States Code provides in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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, suit in equity, or other proper proceeding for redress."
The court explained that "although the test set forth in Spring and Miller is an appropriate mechanism for our state courts to determine the capacity in which the named defendants are sued in actions asserting violations of state law, to employ that test to divest state courts of jurisdiction to hear otherwise cognizable § 1983 claims would be to erect a constitutionally impermissible barrier to the vindication of federal rights." Sullins v. Rodriguez, supra, 281 Conn. 136.
In the present case, as noted above, the plaintiffs do not specifically allege in their complaint whether they were suing the defendants in their individual or official capacities. The plaintiffs do allege that "[a]t all times mentioned herein [the defendants] were employees of the State of Connecticut and acting under color of state law." Complaint ¶ 13. They also list the defendants individually and in their official capacities in the caption of the complaint. Thus, for the purposes of federal law, it is unclear from the complaint whether the plaintiffs are suing the defendants in their official or individual capacities. As a result, the plaintiffs' federal claims for monetary damages withstand the defendants' motion to dismiss, because it is possible to read the complaint as seeking monetary damages against the defendants as individuals.
To the extent that the plaintiffs seek injunctive relief pursuant to § 1983, it is clear that they seek relief that only the state can provide: that DCF expunge its records of the case. The portion of the plaintiffs' claim for injunctive relief under federal law is thus barred.
V.
Based on the foregoing, the court grants the defendants' motion to dismiss as to all of the plaintiffs' claims except for their claims in counts four and nine for monetary damages under 42 U.S.C. § 1983.