Opinion
No. CV-04-4001215 S
June 6, 2005
MEMORANDUM OF DECISION ON MOTIONS TO STRIKE AND TO DISMISS
This case involves Section 1983 claims against state employees.
The amended complaint in the first count indicates that the plaintiff was a former inmate at Northern Correctional Institution. The first count is brought against Neftali Rodriguez "in his individual capacity." At the relevant times to the complaint Rodriguez was a Corrections Officer and Captain at the institution and unit manager of Block Two West. The first count goes on to allege that "on many occasions prior to July 11, 2002 plaintiff informed defendant Rodriguez in writing that inmate William McClease had repeatedly threatened to harm plaintiff." (¶ 9.) Also, Sullins had verbally told Rodriguez of these threats and he also told Rodriguez "to place (himself) and inmate McClease on `separation detail' or for defendant Rodriguez to take some other measure to protect plaintiff from assault." (¶¶ 10, 11.) Rodriguez however "refused to take action to protect plaintiff" and in fact on July 11, 2004 "placed plaintiff (or permitted plaintiff to be placed by subordinates under his supervision) in a small recreational chamber with McClease, and McClease's cousin." (¶¶ 12, 13.) Rodriguez and/or his subordinates locked Sullins in the chamber and then left "leaving the plaintiff and the other inmates without supervision." (¶ 14.) The first count goes on to allege that shortly thereafter McClease violently assaulted the plaintiff causing severe physical injury and mental anguish. The injuries were caused by Rodriguez's "deliberate indifference to plaintiff's health and safety — the defendant knowingly placed or allowed plaintiff to be placed" in a situation where he was subject to attack; failed to take protective measures; failed to investigate to see if such measures were necessary; and failed to instruct his subordinates regarding the danger (¶ 16.) The final paragraph of the first count claims the plaintiff's Eighth and Fourteenth Amendment rights under the federal constitution were violated — the right to be free from cruel and unusual punishment and to be free from conduct that shocks the conscience.
The second count is directed against Larry Myers who at the time of the foregoing events was the warden of the facility in question. He is also said to be sued in his individual capacity. Paragraph 16 of the second count then goes on to say that the plaintiff's injuries "were caused by the grossly negligent conduct and deliberate indifference of Myers because he failed to:
(a) institute adequate policies and procedures to protect inmates threatened by other inmates,
(b) . . . failed to train Northern Correctional corrections officers to protect inmates threatened by other inmates, and
. . . failed to institute adequate policies and procedures to enable inmates to protect themselves from other inmates posing a known risk.
In the final paragraph of the second count the plaintiff has made the same claim of violation of federal constitutional rights against Myers as he did against Rodriguez.
In behalf of Rodriguez and Myers the Assistant Attorney General filed an answer, special defenses, and a set off. A motion to strike has been directed against the first, second, third, fourth, and seventh special defenses and against the set-off claim. The defendants in turn have filed a motion to dismiss claiming a lack of subject matter jurisdiction. These motions are directly related to each other presenting common issues.
The first and second special defenses of Rodriguez and Myers claim the action is barred by the doctrine of sovereign immunity — the facts alleged against both defendants indicate that "the state is the real party in interest" and the suit against each defendant lie against them in their official capacity.
The defendants in the third and fourth special defense cite Martin v. Brady, 261 Conn. 372 (2002) and say the facts alleged against them do not constitute willful, wanton, or reckless misconduct so both claim statutory immunity under § 4-165 of the General Statutes. The seventh special defense argues that the claims made here lie against the defendants in their official capacities so that the plaintiff has failed to exhaust his administrative remedies by not going to the Claims Commissioner.
The set-off is for monies the state spent on or for the plaintiff since the defendants are sued in their official capacities.
The motion to strike the special defenses argues that the complaint makes clear the suit is against the defendants in their individual capacities.
As to the third and fourth special defenses the plaintiff argues these should be stricken because a state statute cannot immunize a state employee from a suit under § 1983 made against them in their individual capacity.
The seventh special defense also should be stricken, the plaintiff argues, because this is an individual capacity § 1983 suit and as such does not require exhaustion of state remedies as a perquisite to its filing.
Quite consistently the plaintiff argues the set-off should be stricken because the state is not a party in this action.
The motion to dismiss filed by the defendants really reiterates the position taken by the defendants in the first and second special defense — this is really a law suit against the state and the state has sovereign immunity.
(1) Motion to Dismiss
The motions to dismiss and strike are directly related to each other. The court will discuss the issues raised by the motion to dismiss first.
The defendants claim that the suits against them must be dismissed because of the defense of sovereign immunity which deprives the court of subject matter jurisdiction. The complaint explicitly lies against the defendants in their individual capacities but the defendants argue that cannot avoid dismissal. "Indeed the sovereign immunity doctrine would be rendered meaningless if (a) plaintiff could avoid its application merely by inserting the legal conclusion that her claims are asserted against defendants in their individual capacities." After all we are a fact pleading state it is argued. Miller v. Egan, 26 S. Conn. 301 (2004) is cited because there our court "reiterated the test for determining whether a state official is sued in his (or her) individual or official capacity and thus whether sovereign immunity applies." At p. 308 Miller relies on Spring v. Constantino, 168 Conn. 563 (1975) and says there the court . . .
[S]et 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 the official represents the state; (3) the state is the real party against whom relief is sought; (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.
The defendants cite two cases which in effect are said to be perfect analogies to the case before the court and dictate why sovereign immunity should apply. Somers v. Hill, 143 Conn. 476 (1956) is cited. In that case injunctive relief was sought seeking to restrain a state official from causing the discharge of surface waters upon the plaintiff's land. Damages were also sought against the highway commissioner "for injuries alleged to have been caused by the commissioner in carrying out specific acts for which the state employs him." Id., p. 480. The Supreme Court concluded that the trial court did not err in granting the demurrer filed by the highway commissioner. In effect the court said it mattered not that the highway commissioner was sued as an individual because:
The state is clearly the real party in interest . . . Damages are sought for injuries alleged to have been caused by the commissioner in carrying out specific acts for which the state employs him, and injunctive relief is requested to restrain him, in his official capacity, from performing duties imposed on him by law. In short, the office of the highway commissioner is an agency of the state created for the purpose of carrying out a state function, and for this reason the commissioner, holding that office, is, so far as the allegations of this complaint are concerned, clothed with immunity from suit against him as the representative of the state. Id., p. 480.
As the court said in a case such as the one before it, any "judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability (therefore) the suit is, in effect, one against the state and cannot be maintained without its consent." Id., Hultman v. Blumenthal, 67 Conn.App. 613 (2002) reiterates the holding in Somers v. Hill. There the court upheld the granting by the trial court of the defendant's motion to dismiss. The attorney general was sued for intentional infliction of emotional distress as a result of statements he made about the plaintiff's concerning an investigation. It was unclear from the complaint's wording whether the plaintiffs intended to sue the defendant in his individual or official capacity. But the court applied the four criteria of Spring v. Constantino and Miller to determine whether the action was really one against the state. The first two criteria were met and the third was met because "the liability for the damages sought is that of the state." As to the fourth criteria, that was met also because "a judgment against the defendant would operate to control the activities of the state, specifically the role of the attorney general's office in informing the public." Id., p. 621. "Having decided it was an official capacity suit the court then went on to determine whether the defendant's actions were protected by sovereign immunity — in other words were the remarks in excess of his authority as attorney general as established by General Statutes § 3-125." Id. The court held that the news release issued by the defendant was made in the course of his duties and concluded that sovereign immunity protects state officials from suits resulting from performance of their duties.
Applying the foregoing reasoning it is argued sovereign immunity requires dismissal. As to Warden Meyers he is being sued "for alleged deficiencies in policies and training. It cannot be contested that the state is responsible for training correctional staff and for the policies which they follow. Thus plaintiff's claims about deficiencies in training and policies clearly is a lawsuit against the state and barred by sovereign immunity." As to the defendant Rodriguez it is argued state prison officials "are required to provide inmates with some opportunity for recreation." Williams v. Greifinger, 97 F.3d 699 (2nd Cir. 1996) is cited. The complaint alleges however, that the plaintiff's concerns over safety were ignored — in effect Rodriguez is being sued for carrying out an obligation of the state albeit poorly thus the suit is against the state. Therefore claims against Rodriguez must also be dismissed under the doctrine of sovereign immunity.
The foregoing argument, however, is not persuasive to the court. It fails to recognize that as concerns the applicability of 42 U.S.C. § 1983 the issue does not turn on the parameters the State of Connecticut chooses to set for the doctrine of sovereign immunity insofar as it governs the viability of common-law actions against state officials. The nature of a claim for relief against state officials under § 1983 arises in the context of the fact that two sovereigns, one federal and one state, exist having laws operating in the same territory. One of these sovereigns has something called the Supremacy Clause operating in its favor. This means that the ambit of § 1983 is properly determined by federal courts, specifically the federal Supreme Court, and any limitations on the operation of that statute pursuant to the Eleventh Amendment of the federal constitution are also to be defined by the federal courts.
The historical context of the Civil Rights Statutes of 1871, which included what is now § 1983, must not be lost sight of by courts seeking to interpret its operation in a federal union. The fear which was soon realized despite the statutes, was that state officials acting under color of state law would deprive newly freed African-Americans of rights gained after a bloody war either by enforcing blatantly racist legislation or facially neutral state laws in a racist way.
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, custom, or usage of any state . . . subjects or causes to be subjected any citizen of the United States . . . 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 property proceeding for redress.
The whole thrust of the statute was to provide a remedy against state officials acting under "color of law" which means "pretense of law." Pitchell v. Callan, 13 F.3d 545, 547 (2nd Cir. 1994). In Monsky v. Moraghan, 127 F.3d 243, 245 (2nd Cir. 1997) the court said: "To act under color of state law or authority for purposes of Section 1983 the defendant `must have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' West v. Atkins, 487 U.S. 42, 49 (1988)." As the court said in Hafer v. Melo, 502 U.S. 21, 28 (1991) . . ." Congress enacted § 1983 to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a state and represent it in some capacity, whether they act in accordance with their authority or abuse it."
The federal accommodation between the sovereign immunity interests of the state as reflected in the Eleventh Amendment on the one hand and the national commitment to civil rights expressed in the Fourteenth Amendment and enforced in § 1983 is set forth in Alden v. Maine, 527 U.S. 706 where the court said: "Some suits against state officers are barred by the rule that sovereign immunity is not limited to suits which name the state as a party if the suits are, in fact against the state." Id., p. 756. The court quoted from Idaho v. Couer d'Alene Tribe of Idaho, 521 U.S. 261, 270 (1997): "The real interests severed by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleading."
But then the court went on to note two limitations to this general pronouncement or rule.
The rule, however, does not bar certain actions against state officers for injunctive or declaratory relief . . . Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally.
Id., p. 757.
In re Ayers, 123 U.S. 443 (1887), decided a mere sixteen years after the passage of the Civil Rights Statutes, made the same observation. Id., pp. 505-06. Also see for example, Hobbs v. Roberts, 999 F.2d 1526, 1530 (11th Cir. 1993); POSR v. Court Officer Shield, 180 F.3d 409, 414 (2nd Cir. 1999); Estes-El v. Town of Indian Lake, 943 F.Sup. 527, 537 (N.D.N.Y., 1997); Perez et al. v. Fajardo et al., 257 F.Sup.2d 467, 471-72 (D.P.R., 2003).
What the federal courts are explicitly saying to the states is that even though there has been conduct violative of a citizen's constitutional rights by one of your agents, in deference to sovereign immunity as understood during the debates leading up to the passage of § 1983, money damages will not be extracted from the state treasury to compensate for this infraction. But we will permit declaratory and injunctive relief against the states prospectively to bar violation of the rights protected under § 1983 and individual capacity suits against your agents, proven to have violated those rights are permitted with monetary relief assessed against them personally. Nowhere do the federal cases suggest that a § 1983 litigant must overcome an added hurdle of showing that any litigation or judgment against the individually sued state agent "will (not) operate to control the activities of the state" a la Spring v. Constantino, supra. The states are fortunate that because of the Eleventh Amendment they do not to have to pay for these infractions out of the state treasury which Congress can in any event override. They cannot take the added step of shielding agents proven to have engaged in § 1983 wrongdoing. Given the supremacy clause what cognizable interest do the states have in immunizing such individual wrongdoing from § 1983 claims? If allowing such individual capacity suits serves directly or indirectly to "control the activities of the state," that would accomplish the very purpose of this statute, since the activity sought to be controlled would, if so proven, be violative of basic constitutional rights of citizens by the state's agents.
Even this Eleventh Amendment sovereign immunity can be waived by the state or overcome by Congress pursuant to Section 5 of § 1983 if it so chooses. Will v. Michigan Dept., of State Police, 491 U.S. 58, 66 (1989).
It is also true that the fact that the defendant Myers was the warden and is being used for failure to implement adequate policies to protect inmates, train guards to achieve that and or have policies allowing inmates to protect themselves does not turn this in to a suit against Myers in his official capacity even though the count against him recites that he is sued in his individual capacity. A prison supervisor can be sued in his individual capacity based on his or her own actions that is "distinct acts or omissions that are a proximate cause of the use of that force." For example by a guard against a prisoner, Blyden v. Mancusi, 186 F.3d 252, 264 (2nd Cir. 1999). Prison officials "may be liable for their deliberate indifference to protecting inmates from violence at the hands of fellow inmates." Id., p. 265, citing Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); also see Williams v. Smith, 781 F.2d 319, 323, 324 (2nd Cir. 1986); Wright v. Smith, 21 F.3d 496, 501 (2nd Cir. 1994).
What this court cannot do is, under the guise of paying deference to some state doctrine of sovereign immunity, bar § 1983 civil rights litigation against state agents sued in their individual capacity and thereby immunize individual actors from suit who in fact act under color of state law.
As the court said in Sheuer v. Rhodes, 416 U.S. 232, 237 (1974):
However, since Ex parte Young, 209 U.S. 123 (1908), it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law. Ex parte Young teaches that when a state officer acts under a state law in a manner violative of the Federal Constitution, he comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States. Id., at 159-60.
Simply put, a state law sovereign immunity defense raised in a § 1983 action brought in state court cannot be resorted to if such a defense would not be available if the action were to have been brought in federal court. Howlett v. Rose, 496 U.S. 356, 361-83 (1989). Abusaud v. Bd. Of City Commissioners, 03-16243 (4th Cir. 2005); Dean v. Byerley, 354 F.3d 540, 555 (6th Cir. 2004).
The court therefore denies the defendants' motion to dismiss.
Fetterman v. University of Connecticut, 192 Conn. 539 (1984) is somewhat puzzling because in part it says even though an individual state agent is sued under § 1983 in his or her individual capacity for damages, it still must be determined if "the state is the real party against whom relief is sought." Id., p. 552; although denominated an individual capacity suit "would (it) operate to control the action of the state or subject it to liability." Id. But then the opinion goes on to except from this state sovereign immunity test applied to § 1983 suits, claims against individual state wrongdoers who "acted pursuant to an unconstitutional enactment or in excess of statutory authority." Id., p. 553. But the latter rationale is the basis for a § 1983 action in the first place. More to the point, as the plaintiffs point out in their brief, Fetterman cites page 624 of Horton v. Meskill, 172 Conn. 615 (1977) which says, "[m]oreover, the government cannot justifiably claim interference with its functions when the acts complained of are unconstitutional or unauthorized by statute." Fetterman itself said when § 1983 was passed "sovereign immunity was well established at common law" and supported by the "strong policy reason" of preventing the "imposition of enormous fiscal burdens on the states." Id., pp. 551, 552. That is the point, the scope of Eleventh Amendment limitation on § 1983 suits is the prohibition of direct recovery for § 1983 violations against the state treasuries. See Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459 (1945). "When the action is in essence one for recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants." Id., p. 464.
Here, there is no action to recover money from the state. Also as will be discussed, the fact that in § 4-165 of our general statutes the state may be responsible for some injuries caused by state employees does not give these individual defendants a right to rely on the state's Eleventh Amendment immunity. As pointed out in Schiff v. Kerrigan, 625 F. Sup. 704, 707 fn. 7 (D. Conn. 1986), § 4-165 goes into effect only if the plaintiff asserts a claim against the state and these defendants cannot assert their employer's immunity to protect them from personal liability.
(2) Motion to Strike (a)
The court's decision on the motion to dismiss necessarily requires that the first and second special defenses be stricken. The claims made against the defendants lie against them in their individual capacity and the court will not accept the invitation to go beyond the limited Eleventh Amendment protection given to the states in § 1983 suits by holding these defendants are only "nominal" defendants because the suit would seek to control the activities of the state.
(b)
The second and third special defenses argue that § 4-165 gives them statutory immunity because their actions do not "rise to the level of willful, wanton, or reckless misconduct." What a particular state decides to do by statute cannot dictate an interpretation regarding the ambit of a federal statute. Also the court has read the footnote of Judge Burns in Schiff v. Kerrigan, supra at 625 F.Sup. P. 705, fn. 7; it certainly does not have the ability to improve on it and agrees with its conclusion about the inapplicability of § 4-165 to an individual capacity claim under § 1983. Judge Burns said:
The defendants have been sued in their official and personal capacities. It is now well established that a suit against a state official in his or her official capacity is, in actuality, a suit against the state. Brandon v. Holt, ( 469 U.S. 464, 472). It is equally clear that the doctrine of sovereign immunity embodied by the Eleventh Amendment precludes a suit for damages against a state brought under section 1983. Edelman v. Jordan, 415 U.S. 651, 677 . . . (1974). Accordingly, the suit against the defendants in their official capacity must be dismissed.
The defendants have put forth the novel argument that they are protected by the Eleventh Amendment in their individual capacity as well. The genesis of this immunity, defendants argue, lies in section 4-165 of the Connecticut General Statutes, which declares state employees immune from personal liability unless their actions are found to be wanton, reckless, or malicious. The statute goes on to provide a mechanism for presenting claims to the state for injury caused by state employees. The defendants argue that section 4-165 imposes liability upon the state for their actions, making the state the real party in interest, and hence, bringing this suit under the umbrella of the Eleventh Amendment.
To the extent that the defendants argue that the statute, by its terms, declares them immune from suit under section 1983, this argument is easily disposed of. Although a state may protect its employees from suit under state law, the supremacy clause prevents the state from shielding its employees when they violate federal law. See Scheuer v. Rhodes, 416 U.S. 232, 237 . . . ("When a state officer acts under a state law in a manner violative of the Federal Constitution . . . `[t]he state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.'") (quoting Ex parte Young, 209 U.S. 123, 160 (1908)).
The defendants' argument that the statute imposes a financial burden on the state, and therefore brings the Eleventh Amendment into play, is also unavailing. First, the statute only imposes a burden upon the state if the plaintiff brings a claim against the state under the provisions of Chapter 52 of the Connecticut General Statutes. In this case, the plaintiff has not asserted such a claim. Furthermore, even if the state has voluntarily agreed to indemnify its employees against damage claims arising under federal law, such voluntary action cannot serve to oust the federal courts from their traditional role of guarding rights protected by the United States Constitution. See Demery v. Kupperman, 735 F.2d 1139, 1147 (9th Cir. 1984); Council of Commuter Organizations v. Metropolitan Transportation Authority, 683 F.2d 663, 672 (2d Cir. 1982). These defendants may not assert the immunity of their state employer to protect them from personal liability for violation of constitutional rights.
Also see Torrence v. Pelkey, 164 F.Sup.2d 164, 272 (D.Conn. 2001); Berman Enterprises Enterprises v. Jordingn, 3 F.3d 602, 606 (2nd Cir. 1993).
(c)
The seventh special defense must also be stricken. It argues that "the plaintiff has failed to exhaust his administrative remedies" — "he should have pursued a claim with the Claims Commissioner." It then says the claim here is against both defendants in their official capacities. But this suit is not brought against the defendants in their official capacity — no claim is made against the state. Chapter 53 sets forth the procedure to be used when claims are to be made against the state — (Sections 4-14 et. seq.). Section 4-141 says "as used in this chapter: `claim' means a petition for the payment or refund of money by the state or for permission to sue the state." Such claims are the only ones the Claims Commissioner is authorized to hear and which must be presented under the statutory scheme. § 4-142, 4-147. Also see Patsy v. Board of Regents, 457 U.S. 520, 516 (1982). "[E]xhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983."
(d) CT Page 9671
The defendants also claim a right to setoff. "Since this matter is against defendants in their official capacities, the state is entitled to recover any monies given to, spent for and/or on behalf of the plaintiff by the State of Connecticut." But this is not an official capacity suit, the fact that the state pursuant to § 4-165 might voluntarily decide to pay any possible damage award does not entitle these defendants to a set off. As the plaintiff notes: "a party may not use a debt owed to a third party as a `set off.'" The state here not being a party that is what these defendants are attempting to do; the fact that the plaintiff may owe money to a third party cannot reduce their individual obligations.
Practice Book § 10-54 provides for a set-off "[i]n any case in which the defendant has either in law or in equity . . . a right of set off against the plaintiff's demand." In other words, "a set off is made where the defendant has a debt against the plaintiff . . . and desires to avail himself (herself) of that debt in the existing suit, either to reduce the plaintiff's recovery, or defeat it altogether." Avery v. Brown, 31 Conn. 398, 401 (1863); Hope's Architectural Products, Inc. v. Fox Steel Co., 44 Conn.App. 759, 762 (1997). Because the court has determined that there is no claim made against the state since the defendants are sued in their individual capacity, they cannot claim the benefit of any monies expended in behalf of the plaintiff by the state.
In any event the motion to dismiss is denied, the first, second, third, fourth, and seventh special defenses are stricken, as is the set off.
Corradino, J.