Opinion
DBDCV185013061S
11-05-2019
Mark Silver v. Warden Denise Dillworth et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): D’Andrea, Robert A., J.
MEMORANDUM OF DECISION
D’Andrea, Robert A., J.
The defendants, Warden Denise Dillworth ("defendant Dillworth"), and Commissioner, Scott Semple ("defendant Semple"), have filed a motion to dismiss, dated April 23, 2018, based on insufficient service of process. Accordingly, both defendant Dillworth and defendant Semple claim that because the plaintiff, Mark Silver ("plaintiff"), did not serve the two defendants correctly, the court lacks jurisdiction over the persons of the two defendants, and the matter must be dismissed. The matter was heard at the November 4, 2019 short calendar, and the plaintiff was present, and participated in the hearing by video conferencing at the Garner Correctional Institution.
FACTS
The plaintiff is an inmate incarcerated at the Garner Correctional Institution ("GCI") in Newtown, Connecticut. Plaintiff alleges that he cannot safely live with a cell mate. Currently he does not have one. Although in his motion for an injunction/complaint dated November 15, 2017, he claimed that he had not received an official single cell status order, as he claimed that "doesn’t trust his current situation," he did testify, under oath, at the short calendar hearing on November 4, 2019, that he now does have single cell status, and is proceeding with this matter because he wants the court to issue an order that the single cell status become permanent. The plaintiff filed a motion for injunction which was coded as complaint (#100.31). The only relief sought is an injunction granting him permanent single cell status. The defendant Dillworth is the former warden of GCI, but was the warden at the time suit was commenced, and defendant Semple is the Commissioner of the Department of Correction. Plaintiff commenced this action by summons signed by the Deputy Chief Clerk of the court on February 21, 2018 with a return date of April 3, 2018. Process was served on defendant Dillworth at Garner Correctional Facility, 50 Nunnawauk Road, Newtown, Connecticut, but the marshal’s return of service (#101.00), although dated February 22, 2018, does not state the actual date of service on defendant Dillworth. Service of process was made on defendant Semple at 24 Wolcott Hill Road, Wethersfield, on February 26, 2018, as shown on the marshal’s return of service. It is unclear from the motion for injunction if the two defendants are being served in their individual capacity or professional capacity.
LEGAL STANDARD
"The determination of whether the plaintiff’s complaint alleged claims against the defendants in their individual capacities is governed by the test set forth in Spring v. Constantino, 563, 568, 362 A.2d 871 (1975). In Spring, the plaintiff brought an action against the individual defendant, a public defender, in his individual capacity. The attorney general appeared on behalf of the defendant and asserted that sovereign immunity barred the action. The court agreed with the attorney general that [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.’ The court then 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.’ " Miller v. Egan, 265 Conn. 301 at 308, 828 A.2d 549 (2003).
General Statutes § 52-64 states in pertinent part: "(b) In any civil action commenced by a person who is incarcerated against the state or ... commission ... or against any officer ... of any commission ... service of process on all defendants ... who are sued on their official capacity, shall be accomplished by a proper officer (1) leaving one true and attested copy of the process, including the declaration or complaint, with the Attorney General at the office of the Attorney General in Hartford, or (2) sending one true and attested copy of the process, including the summons and complaint, by certified mail, return receipt requested, to the Attorney General at the office of the Attorney General in Hartford."
As to the need for proper service of process in accordance with statutory requirements, "[T]he Superior Court ... may exercise jurisdiction over a person only if that person has been properly served with process ... Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). "[S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court’s exercise of [personal] jurisdiction over that party." (Internal quotation marks omitted.) Bicio v. Brewer, 92 Conn.App. 158, 166-67, 884 A.2d 12 (2005).
DEFENDANTS’ POSITION
The defendants allege that the determination of whether the defendants are sued in their individual or official capacities is governed by the four tests set forth in Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975), as reiterated by Miller v. Egan, 265 Conn. 301 (2003) In Miller, the Court reiterated the test set forth in Spring. According to the defendants, the four Spring factors, when applied to the facts, show, 1) in this action the two defendants are state actors (Warden and Commissioner) and have been sued as such; 2) the suit concerns some matter in which the officials represent the state (corrections institution); 3) that the state is the real party in interest because any judgment or order granting injunctive relief would operate against the state and could only be acted upon by an official within the scope of their official duties; and 4) no other relief is sought. It is, therefore, unquestionable, that the defendants are sued in their official capacities only. Defendant Dillworth was served in hand at GCI, and defendant Semple was served at Department of Corrections Central Office in Wethersfield, Connecticut. Neither service is legally sufficient based on the service of process requirements in General Statutes § 52-64(b). The methods of service of process required in § 52-64(b), are clear and unambiguous, and neither were done in this case.
Finally, as clearly stated in Bicio, "[S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court’s exercise of [personal] jurisdiction over that party." Bicio at 166-67. Since no proper service in accordance with the statutory requirement has been made, this court lacks jurisdiction over the person of the defendants. For all of the foregoing reasons, this action must be dismissed.
PLAINTIFF’S POSITION
At the November 4, 2019 short calendar proceeding, the court asked the plaintiff what his position was on the motion to dismiss. He clearly stated that he felt proper service was made because the suit documents were delivered to the Attorney General’s Office, therefore, there was no issue with service. The plaintiff asked if he could file an objection, which the court indicated it would permit, or, if he preferred, he could rely on his oral position given to the court. The plaintiff indicated that he would rely on his oral position, which the court noted above.
ANALYSIS
General Statutes § 52-64 states in pertinent part: "(b) In any civil action commenced by a person who is incarcerated against the state or ... commission ... or against any officer ... of any commission ... service of process on all defendants ... who are sued on their official capacity, shall be accomplished by a proper officer (1) leaving one true and attested copy of the process, including the declaration or complaint, with the Attorney General at the office of the Attorney General in Hartford, or (2) sending one true and attested copy of the process, including the summons and complaint, by certified mail, return receipt requested, to the Attorney General at the office of the Attorney General in Hartford ." (Emphasis added). Neither was done it this case. Therefore, it is the decision of this court that the plaintiff did not serve the two defendants properly, as required by § 52-64, thus, service of process is fatally defective.
CONCLUSION
Based on the foregoing, the defendants’ motion to dismiss the plaintiff’s motion for injunction/complaint is GRANTED.