Opinion
X03HHDCV165042400S
06-06-2017
Sylvester Traylor v. State of Connecticut et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE STATE DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT (#130.00)
Ingrid L. Moll, Judge
Before the court is the motion to dismiss dated June 8, 2016, filed by defendants State of Connecticut, the Connecticut Appellate Court, Connecticut Superior Court Judges Emmet L. Cosgrove, Terence A. Zemetis, Kari A. Dooley, and James W. Abrams, and former Connecticut Superior Court Judge Thomas F. Parker (" Parker"), (collectively, " the State defendants"), directed to the plaintiff's amended complaint dated April 19, 2016, insofar as it is directed to them (" motion") (#130.00). Specifically, the State defendants contend that the plaintiff's claims are barred by: (1) sovereign immunity; (2) absolute judicial immunity; (3) collateral estoppel; (4) statutory immunity; (5) qualified immunity; (6) lack of a private cause of action; and (7) nonjusticiability. The plaintiff, Sylvester Traylor (" the plaintiff' or " Mr. Traylor"), did not file a memorandum of opposition and did not appear at the February 6, 2017 hearing on the motion. For the reasons stated below, the court grants the State defendants' motion.
Mr. Traylor is a self-represented party.
I
BACKGROUND
The instant action is one of more than a dozen lawsuits brought by the plaintiff stemming from the tragic death of his late wife, Roberta, in 2004. The plaintiff alleges, among other things, that Roberta's psychiatrist, defendant Bassam Awwa, M.D. (" Awwa"), and his practice, Connecticut Behavioral Health Associates P.C. (" CBHA") (together, the " Awwa defendants"), acted negligently in their psychiatric treatment of Roberta and spoliated evidence after her death. The plaintiff alleges that defendants Robert Knowles, Neil Knowles, and Advanced Telemessaging (collectively, the " Knowles defendants"), who at the relevant times operated a telephone answering service for Awwa's practice, also spoliated evidence after Roberta's death by destroying records, including information concerning telephone calls placed by the plaintiff to Awwa shortly before her death.
See Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. KNL-CV06-5001159-S; Traylor v. State, Superior Court, judicial district of New London, Docket No. KNL-CV09-4009523-S; Traylor v. Steward, Docket No. 3:10-CV-00639(CFD) (D. Conn.); Traylor v. Awwa, Docket No. 3:11-CV-00132(AWT) (D. Conn.), upon remand, FST-CV11-5015139-S; Traylor v. Gerratana, Superior Court, judicial district of Hartford, Docket No. HHD-CV11-5035895-S; Traylor v. Hammond, Docket No. 3:12-CV-01625(AWT) (D. Conn.); Traylor v. State, Superior Court, judicial district of New London, Docket No. KNL-CV13-5014624-S; Traylor v. Cosgrove, Superior Court, judicial district of New London, Docket No. KNL-CV13-5014602-S (withdrawn); Traylor v. State, Docket No. 3:13-CV-00663(AWT) (D. Conn.); Traylor v. Eric Parker, Superior Court, judicial district of Waterbury, Docket No. UWY-CV13-5017115-S; Traylor v. Eric Parker, Docket No. 3:13-CV-01828(AWT) (D. Conn.); Traylor v. Waterford, Docket No. 3:13-CV-00507(AWT) (D. Conn.); Traylor v. Kopp, Superior Court, judicial district of New London, Docket No. KNL-CV-154012676-S.
For comprehensive detail, the reader is referred to the 106-page complaint.
The plaintiff's claims against the State defendants, set forth in count one and, as to former Superior Court Judge Parker only, in count five, generally challenge various alleged acts and/or omissions by such defendants during certain of his prior lawsuits. Most of his claims challenge judicial decision-making and/or other acts/omissions in: (1) Traylor v. Awwa, Superior court, judicial district of New London, Docket No. KNL-CV06-5001159-S (described below as the " 2006 Action"); (2) Traylor v. State, Superior Court, judicial district of New London, Docket No. KNL-CV09-4009523-S (described below as the " 2009 Action"); (3) Traylor v. Awwa, Docket No. FST-CV11-5015139-S (described below as the " 2011 Action"); and (4) Traylor v. Gerratana, Superior Court, judicial district of Hartford, Docket No. HHD-CV11-5035895-S (" Gerratana Action").
In order to put the instant action in its proper context, the court provides the following procedural background of the 2006, 2009, 2011, and Gerratana Actions.
2006 Action
The plaintiff brought his initial suit in 2006. See Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. CV 06-5001159-S (" 2006 Action"). The court in the 2011 Action, described below, summarized the history of the 2006 Action as follows:
In the 2006 case the plaintiff alleged that Awwa was negligent in several ways including that he prescribed certain medications which were inappropriate for Roberta and that he failed to adequately inform her of the risks associated with the medications he prescribed, and that he failed to supervise, monitor or otherwise follow through with the plaintiff concerning his wife's suicidal behavior. The plaintiff specifically alleged that he called Awwa and CBHA, in the days leading up to Roberta's death, concerning her indications that she was suicidal and a danger to herself but that the plaintiff received no return calls. The plaintiff specifically alleged that Awwa and CBHA were negligent in that they refused to return his phone calls concerning the increased suicidal behavior of Roberta. The plaintiff's complaint was brought both in his individual capacity and his capacity as duly appointed administrator of the estate of his late wife.
On July 12, 2010 the plaintiff filed an Amended Complaint in the 2006 case which sounded in eight counts. The first six counts of that Amended Complaint were based upon various medical malpractice claims against each of the 2006 defendants. The Seventh Count alleged that the 2006 defendants (which did not include the Knowles defendants) had spoliated evidence and the Eighth Count alleged that the 2006 defendants had violated the Connecticut Unfair Trade Practices Act (CUTPA). On July 29, 2010 then Judge Trial Referee, Thomas F. Parker entered an order dismissing Counts One through Six of the July 12, 2010 Amended Complaint. On August 11, 2010 Judge Parker filed a Memorandum of Decision articulating the basis for his order dismissing Counts One through Six. While the court will not recite the details of the Judge Parker's August 11, 2010 Memorandum of Decision it is fair to say that a significant component of the twenty-eight-page decision was the Court's view that the original complaint did not contain a certificate that complied with Conn. Gen. Stat. § 52-190a which required a certificate of good faith with a medical opinion. The Court's decision acknowledged that a medical opinion dated October 18, 2006 was obtained on that date. The Court's decision was based on its determination that the subsequently obtained medical opinion could not rescue the plaintiff's action that was brought approximately four months prior to the time that the plaintiff obtained the medical opinion . It is fair to say that the plaintiff disagrees with the substance of the Court's August 11, 2010 Memorandum of Decision. Subsequently, the 2006 Court granted the defendant's Motion to Strike the seventh and eighth counts of the Amended Complaint. On October 5, 2010 the court (Parker, J.T.R.) denied the defendants' Motions for Non-Suit and on February 15, 2011 the court (Parker, J.T.R.) dismissed counts seven and eight .
The plaintiff filed an appeal to the Appellate Court but that appeal was dismissed by the Appellate Court on December 19, 2011. The plaintiff filed a petition for certification to the Connecticut Supreme Court on December 29, 2011 but that petition was denied by the Connecticut Supreme Court on January 27, 2012; effectively ending the 2006 case.(Emphasis added; footnote omitted.) Traylor v. Awwa, No. FST-CV11-5015359-S, 2016 WL 7165563, at *1-2 (Conn.Super. Oct. 26, 2016) (Genuario, J.).
2009 Action
While the above litigation was pending, the plaintiff filed the 2009 Action by way of a writ of mandamus. The plaintiff sought thereby to undo certain rulings in the 2006 Action, including a court order by Judge Abrams opening a default judgment. Then-Judge Parker dismissed the suit; the Appellate Court affirmed the dismissal; and the Supreme Court denied certification.
2011 Action
Notwithstanding the foregoing, the plaintiff filed the 2011 Action, the procedural background of which has been previously summarized as follows:
In January 2011 . . . the plaintiff brought [the 2011 Action] returnable to the New London Superior Court against multiple defendants. That complaint alleged, in part, that the various state actors and certain private parties had discriminated against the plaintiff in violation of federal law because of his inter-racial marriage to Roberta. (The complaint alleges that the plaintiff is black and Roberta was white.) The case was removed to the United States District Court for the District of Connecticut on January 25, 2011 (See Traylor v. Awwa et al., United States District Court for the District of Connecticut (New Haven) Docket #3:11cv-00132-AWT). After various proceedings in federal court the case was dismissed or judgment entered in favor of ten of the thirteen defendants. The United States District Court then remanded the remaining state court claims against the Knowles defendants [who were not represented by counsel in federal court] for adjudication in state court on March 23, 2015 (federal court docket #431) which order was confirmed after re-argument on June 10, 2015 (federal court docket #442) . . .(Footnote in original; second footnote omitted.) Traylor v. Awwa, No. FST-CV11-5015359-S, 2016 WL 7165563, at *2 (Conn. Super. Oct. 26, 2016).
The defendants included Bassam Awwa, M.D.; Attorney Donald Leone; Richard Blumenthal, Connecticut Attorney General; the City of New London; Joseph D'Alesio of the Connecticut Judicial Branch; the New London Criminal Division for the State of Connecticut Attorney's Office; Dr. Robert Galvin, Commissioner of the Connecticut Department of Public Health and the Knowles defendants.
While the 2011 Action was pending in federal court, the district court granted, among other things, a motion to dismiss filed by the Awwa defendants, which was directed to all counts against them. See Traylor v. Awwa, No. 3:11-cv-00132 (AWT), Ruling on Motion to Dismiss (D.Conn. Sept. 26, 2012) (Thompson, J.). (A copy of the district court's decision was attached as Exhibit C to the Awwa defendants' moving papers. (See #152.00.); The plaintiff took an appeal to the United States Court of Appeals for the Second Circuit, which was eventually dismissed and which prompted the following warning to the plaintiff by that court:
[C]ontinued filing of frivolous appeals or motions may result in the imposition of sanctions, including a leave-to-file sanction. See In re Martin-Trigona, 9 F.3d 226, 229 (2d Cir. 1993). Traylor v. Awwa, No. 15-912, Order (Doc. #68) (2d Cir. Nov. 19, 2015) (a copy of such order is included in this record at #131.00, Ex. 23).
The federal district remanded the case to the Superior Court for proceedings involving the Knowles defendants, and the case was transferred to the judicial district of Waterbury, where Judge Dooley issued various rulings the plaintiff now challenges. Thereafter, the 2011 Action was transferred to the complex litigation docket in the judicial district of Stamford-Norwalk, where the court, Genuario, J., granted the Knowles defendants' motion for summary judgment.
That decision is more fully discussed in this court's memorandum of decision on the Knowles defendants' motion to dismiss based on the prior pending action doctrine, rendered simultaneously herewith.
Gerratana Action
Also in 2011, the plaintiff filed the Gerratana Action, against seventeen state defendants, including former Judge Parker and twelve legislators, as well as a private defendant, seeking to challenge certain orders and judicial proceedings, particularly with regard to the 2006 Action and challenging the constitutionality of General Statutes § 52-190a. The court dismissed the Gerratana Action on the grounds of sovereign immunity, judicial immunity, and legislative immunity; such judgment was affirmed by the Appellate Court; and our state Supreme Court and the United States Supreme Courts denied Mr. Traylor's petitions for certification. Traylor v. Gerratana, No. HHD-CV11-5035895-S, 2012 WL 6634794 (Conn.Super. Nov. 29, 2012), aff'd, 148 Conn.App. 605, 88 A.3d 552, cert. denied, 312 Conn. 901, 902, cert. denied, 135 S.Ct. 444, 190 L.Ed.2d 336 (2014).
Instant Action
The plaintiff commenced the instant action by way of summons and complaint on or about April 6, 2016, made returnable to the judicial district of Stamford-Norwalk. In his 106-page amended complaint dated April 19, 2016 (#112.00) (" amended complaint"), which is the operative complaint, the plaintiff asserts claims against: (1) the State defendants; (2) the Awwa defendants; and (3) the Knowles defendants. Specifically, the plaintiff asserts the following counts: (1) Count One--due process and equal protection violation, as to the State defendants; (2) Count Two--fraudulent concealment, as to the Awwa defendants and the Knowles defendants; (3) Count Three--spoliation, as to the Awwa defendants and the Knowles defendants; (4) Count Four--violation of the Connecticut Unfair Trade Practices Act (" CUTPA"), as to CBHA and Advanced Telemessaging; (5) Count Five--intentional infliction of emotional distress, as to the Awwa defendants, the Knowles defendants, and Parker; and (6) Count Six--loss of consortium, as to the Awwa defendants and the Knowles defendants.
On June 6, 2016, the action was transferred to the judicial district of Danbury. (#103.03.) In response to the plaintiff's amended complaint, all defendants filed either a motion to dismiss or a motion for summary judgment in June 2016. Such motions included the instant motion to dismiss filed by the State defendants on June 8, 2016, along with a supporting memorandum and accompanying exhibits. (##130.00-131.00.) On July 22, 2016, Mr. Traylor moved for a 90-day extension of time to file responses to defendants' motions. (#172.00.) Such motion, had it been granted at the time of its filing, would have required Mr. Traylor to file his responses in October 2016. The undersigned's assignment to the complex litigation (X03) docket commenced in September 2016. Thereafter, the undersigned became aware of Mr. Traylor's pending motion for extension of time and granted it, giving him an additional month on top of the lengthy 90-day extension of time he had requested. (#172.86.) Thus, Mr. Traylor's deadline to respond to the defendants' respective motions to dismiss and/or for summary judgment became November 23, 2016, and a hearing date was set for December 20, 2016. (Id. )
On November 23, 2016, Mr. Traylor did not file the required briefs. Instead, he filed (1) a motion to open and vacate the foregoing court order (#172.86) and (2) a motion entitled " motion for an extension of time to plead." (##183.00 and 184.00.) Because those motions requested that the court vacate its November 2, 2016 order (#172.86), which granted Mr. Traylor essentially a four-month period to prepare opposition briefs, the court denied Mr. Traylor's motions.
On December 5, 2016, Mr. Traylor filed another motion for extension of time, requesting an additional 60-day extension of time to file such responses. (#191.00.) The court granted Mr. Traylor's motion and calculated the 60 additional days from the date on which his responses were then most recently due (i.e., November 23, 2016), making the new deadline January 23, 2017. (#191.86.) That same order set February 6, 2017, as the hearing date on such motions, including the instant motion. (Id.) Mr. Traylor did not file any opposition briefs (or any other motion for extension of time) on or before January 23, 2017.
On February 1, 2017, Mr. Traylor filed a motion for continuance of a " February 23" status conference. There was no status conference, however, scheduled for February 23, 2017. Accordingly, the court presumed that Mr. Traylor was requesting a continuance of the only hearing then-scheduled, that being the February 6, 2017 hearing. The reason provided by Mr. Traylor for the requested continuance was his claim that he had not had enough time to prepare opposition briefs to the defendants' respective motions to dismiss and motion for summary judgment, which were filed in June 2016. (#210.00.) Additionally, in such motion, Mr. Traylor represented that he had " contacted all counsel . . . of record about [his] intention to seek a continuance" and that they had " not responded." At the February 6, 2017 hearing, however, counsel represented that Mr. Traylor had not contacted them. On February 2, 2017, Mr. Traylor filed a request for adjudication regarding his February 1 motion for continuance, specifically representing that " he is having problems with his vision due to medication." (#218.00.)
On February 2, 2017, the court ruled on Mr. Traylor's February 1 motion for continuance as follows:
Plaintiff's motion seeks a continuance of a February 23, 2017 scheduled event. There is no scheduled event, however, for February 23, 2017. The court presumes that the plaintiff instead seeks another continuance of the hearing currently scheduled for February 6, 2017. Based on the lengthy period of time that has passed since the filing of the motions at issue and the lengthy continuances previously granted to the plaintiff, the court denies the request to continue the February 6 hearing. However, the court will give the plaintiff an opportunity to argue at that hearing why he should be afforded additional time to submit briefs in opposition to the defendants' pending motions. The plaintiff must bring documentation for the court's in camera (court-only) review to support his claim that he has been physically unable to comply with the court's deadlines. The court will decide at that time whether a separate hearing should be scheduled.(Emphasis added.) (#210.86.) On February 3, 2017, Mr. Traylor obtained his medical records from a VA office and had them sent from the New London courthouse, by way of an email from a clerk in New London to The undersigned's court officer. Such records were marked at the February 6, 2017 hearing as Court Exhibit 1 and were ordered to remain a court-only exhibit.
As confirmed on the record on February 6, 2017, by the court officer assigned to this docket, during the afternoon on Friday, February 3, 2017, Mr. Traylor called him and said that he had driven to a VA office that day to obtain his medical records and that he had driven to the New London courthouse that day to have those records emailed to the undersigned's chambers. That same afternoon, Mr. Traylor filed a so-called " Notice of Compliance." (#219.00.) Despite the fact that his motion to continue the February 6, 2017 hearing had already been denied, Mr. Traylor informed the court in his notice that he would not be attending the hearing, claiming for the first time that he was unable to drive as a result of prescribed medication. The court found, however, that by driving to a VA office and driving to the New London courthouse on Friday, February 3, 2017, the same day he made such a claim, Mr. Traylor's own conduct belied his claim that he would be unable to attend court the following Monday, February 6, 2017. Moreover, Mr. Traylor's February 1, 2017 request to continue the February 6, 2017 hearing made no claim that he could not drive. That claim was raised for the first time after the court denied his February 1 request.
With regard to the issue of the medical records that Mr. Traylor arranged to have, and did have, emailed to the undersigned's court officer on Friday, February 3, 2017, the court carefully reviewed such medical records for the purpose of considering Mr. Traylor's claim that vision problems prevented him from preparing briefs in opposition to the defendants' dispositive motions. As stated on the record on February 6, 2017, the court found that those records do not reflect any complaints relating to, or any treatment of, a vision problem that would prevent Mr. Traylor from complying with his court-related obligations. Furthermore, in light of his driving a motor vehicle on Friday, February 3, 2017, the court did not credit Mr. Traylor's claim that he was experiencing vision problems so severe that he could not work on briefs in opposition to the defendants' June 2016 motions. The foregoing history led the court to the conclusion that Mr. Traylor was flagrantly disregarding the court's deadlines and the court's February 3, 2017 order denying his request to continue the February 6, 2017 hearing. Accordingly, the court proceeded with the February 6, 2017 hearing, which Mr. Traylor failed to attend.
II
STANDARD OF REVIEW
The State defendants move for dismissal pursuant to Practice Book § § 10-30 and 10-33. In considering a motion to dismiss, the court " take[s] 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 . . . A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts . . . If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken . . ." (Citations omitted; internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 108-09, 967 A.2d 495 (2009).
Section 10-30 provides: "
Section 10-33 provides: " Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action."
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " The 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).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the supplementary undisputed facts . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counter affidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id. at 651-52.
" The doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). " Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 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). Regarding the common-law exceptions to sovereign immunity, the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Internal quotation marks omitted.) Markley v. Dept. of Public Utility Control, 301 Conn. 56, 66, 23 A.3d 668 (2011).
Finally, the doctrine of absolute immunity is properly considered in a motion to dismiss because it shares with sovereign immunity the same purpose of protection from having to litigate at all. Damato v. Thomas, No. HHD-CV09-5030385-S, 2010 WL 2817260, at *1 (Conn.Super. June 2, 2010) (Peck, J.) .
III
DISCUSSION
A. Sovereign Immunity
" The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . It has deep roots in this state and our legal system in general, finding its origin in ancient common law . . . Not only have we recognized the state's immunity as an entity, but 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 . . ." (Citation omitted; internal quotation marks omitted.) Allen v. Commissioner of Revenue Services, 324 Conn. 292, 298-99, 152 A.3d 488 (2016). " The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty. The doctrine protects the state against lawsuits as well as protecting against liability, and in effect, it protects against having to litigate at all." (Internal quotation marks omitted.) Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666 (2002).
1. As To Official Capacity Claims
The State defendants first argue that, to the extent the plaintiff seeks monetary damages against the State defendants in their official capacities, such claims are barred by sovereign immunity. This particular argument requires little discussion because the plaintiff has expressly stated in his amended complaint that he is not seeking monetary damages against the State defendants in their official capacities. See Amended Compl. ¶ 1 (" the Plaintiff is 'NOT' seeking any monetary damages against the State of Connecticut" [emphasis in original omitted]); ¶ 30 (" the Plaintiff is not seeking any monetary damages against the State of Connecticut and/or its officers in their official capacities"; ¶ 179.1 (" The Plaintiff does NOT seek any monetary damages from the State Actors in the [sic] Official capacity."). Accordingly, based on these representations, the court does not construe the amended complaint as seeking monetary damages against the State defendants in their official capacities.
2. As To Individual Capacity Claims
To the extent the plaintiff seeks to assert monetary damages claims against any of the State defendants in their individual capacities, the court applies the test set forth in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975), superseded by statute on other grounds as stated in Gross v. Rell, 304 Conn. 234, 248 n.7, 40 A.3d 240, 251 (2012). In Spring, our Supreme Court set forth " the following criteria for determining whether 'the suit 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." Id. at 568. If the four factors are satisfied, then claims are deemed official capacity claims, notwithstanding allegations to the contrary, and are barred by the doctrine of sovereign immunity. See, e.g., Cimmino v. Marcoccia, 149 Conn.App. 350, 358-60, 89 A.3d 384 (2014); Kenney v. Weaving, 123 Conn.App. 211, 215-16, 1 A.3d 1083 (2010); Macellaio v. Newington Police Dept., 142 Conn.App. 177, 181-82, 64 A.3d 348 (2013); Hultman, 67 Conn.App. at 621.
With regard to the first criterion, it is beyond dispute that state officials have been sued.
With respect to the second criterion, the instant action concerns only matters in which such individuals represented the state at the time of the challenged conduct. That is, the challenged conduct of the individual defendant judges all relates to the manner in which they allegedly acted or failed to act as judges in judicial cases brought by the plaintiff. Accordingly, the second criterion is readily satisfied. See Kenney, 123 Conn.App. at 216.
With regard to the third criterion, " [t]he plaintiff seeks damages allegedly caused by the conduct of the defendants in the discharge of their official duties . . . The damages sought by the plaintiff are premised entirely on injuries alleged to have been caused by the defendants in performing acts that were part of their official duties." Cimmino, 149 Conn.App. at 359-60; see also Kenney, 123 Conn.App. at 216-17 (" Damages are sought for injuries allegedly caused by the defendant for performing or not performing acts that are part of his official duties."). Despite disclaiming any official capacity damages claims, the plaintiff's allegations against the individual current and former judges refer to such individuals in their judicial capacities and challenge the manner in which they exercised their official duties. Indeed, no conduct of a personal nature is alleged. See Kenney, 123 Conn.App. at 217. Clearly, the individual current and former judges have been sued only because they were judges at all relevant times. Id. Accordingly, the state is the real party in interest against whom relief is sought. Cimmino, 149 Conn.App. at 360. The third criterion is therefore satisfied.
Regarding the final criterion, any judgment against the individual judges " will subject the state to liability. See Miller v. Egan, [265 Conn. 301, 311, 828 A.2d 549 (2003)]." Kenney, 123 Conn.App. at 217. See also General Statutes § 5-141d(a); Macellaio, 142 Conn.App. at 181. Thus, the fourth criterion is met.
In sum, because the Spring criteria are satisfied, the court concludes that the plaintiff's damages claims against the defendant current and former judges are, in effect, against the state and are barred by sovereign immunity. Moreover, the plaintiff has not directed the court to any statute indicating that the legislature, either expressly or by force of a necessary implication, has waived sovereign immunity for such damages claims.
B. Sovereign Immunity as to Injunctive and Declaratory Relief
The State defendants also argue that the plaintiff's claims for injunctive and declaratory relief are barred by sovereign immunity. The court agrees.
Our Supreme Court has recognized three exceptions to sovereign immunity:
(1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity; . . . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights; . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority . . .(Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Department of Transp., 293 Conn. 342, 349, 977 A.2d 636 (2009). There is no suggestion, either express or implied, that the first exception applies.
With regard to the second exception, " complaining of unconstitutional acts, [the court] require[s] that the allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests." (Internal quotation marks omitted.) Id. at 350. Here, the plaintiff seeks, by way of declaratory relief, that General Statutes § 52-190a is unconstitutional because it violates certain protections of our state constitution, including access to courts, due process, equal protection, and separation of powers. The court concludes that, under the circumstances, the plaintiff has not pled a " substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights." Mr. Traylor has previously made the same § 52-190a claim in the Gerratana Action, which the Appellate Court rejected. Traylor v. Gerratana, 148 Conn.App. 605, 611, 88 A.3d 552, 557 (2014) (" The plaintiff's amended complaint makes only conclusory allegations that § 52-190a violated his constitutional rights to equal access to court, separation of powers, equal protection, due process, and to trial by jury. None of the claims raised by the plaintiff allege a 'substantial' claim that `clearly demonstrates an incursion upon his constitutionally protected interests."). The Court found the second exception to be inapplicable and dismissed Mr. Traylor's claim on sovereign immunity grounds. Id. The Court reasoned that Mr. Traylor failed to allege facts that made a substantial claim that clearly demonstrated an incursion upon his constitutionally protected interests. Id.; see also Lohnes v. Hospital of St. Raphael, 132 Conn.App. 68, 81, 31 A.3d 810 (2011) (" There is nothing onerous or insurmountable about [the] requirement" in § 52-190a that a plaintiff provide a letter from a similar healthcare provider evidencing support for his claim); id. (" § 52-190a is merely a procedural limitation that neither eliminates nor unreasonably burdens the plaintiff's right to legal recourse"); id. at 80 (holding that § 52-190a does not violate the open courts provision of article first, § 10, of the state constitution). The plaintiff's amended complaint in the instant action suffers from the same deficiencies with regard to § 52-190a. Thus, this claim is barred on the independent grounds of sovereign immunity and collateral estoppel. The court also concludes that the plaintiff lacks standing to challenge the constitutionality of § 52-190a because he, in fact, obtained the opinion letter required by the statute.
With regard to the third exception, " the plaintiff[] must do more than allege that the defendants' conduct was in excess of their statutory authority; [he] 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 . . . is proper." Traylor, 148 Conn.App. at 611. The amended complaint does not provide a factual basis to apply the third exception to the plaintiff's § 52-190a claims.
In sum, because the plaintiff's claims concerning § 52-190a do not satisfy any exception to sovereign immunity, they are barred on sovereign immunity grounds.
C. Absolute Judicial Immunity
The State defendants also argue that the plaintiff's claims against them under state and federal law are barred by absolute judicial immunity. The court agrees.
" It is well established that 'a judge may not be civilly sued for judicial acts he undertakes in his capacity as a judge.' Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 630, 749 A.2d 630 (2000). This role of judicial immunity serves 'to promote principled and fearless decision-making by removing a judge's fear that unsatisfied litigants may hound him with litigation charging malice or corruption . . .' (Internal quotation marks omitted.) Spring v. Constantino, 168 Conn. 563, 565, 362 A.2d 871 (1975)." Carrubba v. Moskowitz, 274 Conn. 533, 540, 877 A.2d 773, 780 (2005).
As held by the Appellate Court in Mr. Traylor's appeal in the Gerratana Action, " [a]bsolute judicial immunity bars the plaintiff's state law claims against the judicial defendants in their official capacities. 'It is a long-standing doctrine that a judge may not be civilly sued for judicial acts he undertakes in his capacity as a judge.' Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 630, 749 A.2d 630 (2000). The improper actions alleged by the plaintiff against Judge Parker of issuing incorrect legal rulings and orders in the plaintiff's malpractice and mandamus actions, applying unconstitutional laws, intimidating the plaintiff during hearings, engaging in ex parte communications, and requiring the plaintiff to obtain legal counsel for the claims of his wife's estate, undeniably were actions taken in Judge Parker's official judicial capacity. Thus, the plaintiff's claims against him are barred by absolute judicial immunity." Traylor v. Gerratana, 148 Conn.App. 605, 613-14, 88 A.3d 552 (2014).
With regard to former Judge Parker, the Appellate Court has already held that the plaintiff's claims against him, as recited by that court and repeated in the instant action, are barred by absolute judicial immunity. That holding not only stands in its own right, but serves to collaterally estop the plaintiff from attempting again to assert such claims. The only additional claim the plaintiff makes in the instant action regarding former Judge Parker relates to his allegation that fowler Judge Parker committed perjury while testifying before the Judiciary Committee during his reappointment hearing on January 16, 2015. Because there is no civil cause of action for perjury, however, the plaintiff's additional claim fails as a matter of law. See Terracino v. Buzzi, 121 Conn.App. 846, 857 n.7, 1 A.3d 115 (2010) (" [T]here is no civil remedy for perjury."); Acker v. King, 46 F.Supp.3d 168, 176 (D.Conn. 2014) (" In Connecticut, there is no civil remedy or cause of action for perjury."). Moreover, as relief, the plaintiff seeks to have former Judge Parker's pension revoked. The court is not aware of any authority to support such requested relief by a private citizen.
With regard to the other judicial defendants, the court reaches the same conclusion reached by the Appellate Court, recited above. The plaintiff's claims against them similarly challenge allegedly incorrect legal rulings and/or other judicial acts and omissions, which undeniably were actions taken in the individual defendant judges' official judicial capacities.
Accordingly, the plaintiffs' claims against the defendant judges are barred by absolute judicial immunity.
The plaintiff's allegations against Appellate Court clerk Alan Gannuscio are similarly barred on the basis of absolute judicial immunity, as previously held by the Appellate Court in the Gerratana Action. See Traylor, 148 Conn. at 614.
D. Statutory Immunity Under General Statutes § 4-165
The State defendants next argue that statutory immunity pursuant to General Statutes § 4-165 further bars all of the plaintiff's damages claims against the judges in their individual capacities. However, " [b]ecause [the court] find[s] that the plaintiff's complaint failed to allege any claims against the defendant [judges] in [their] individual capacity, consideration of the doctrine of statutory immunity is unnecessary." Macellaio, 142 Conn.App. at 182 n.5. " [T]he statutory 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 in part on other grounds by Miller, 265 Conn. at 325.
E. Nonjusticiability
Finally, to the extent the plaintiff asserts claims for declaratory and injunctive relief whereby he seeks to have this court overturn, revoke, ignore, or reverse the actions of another Superior Court in another action, or even an action taken by the Appellate Court, those claims are clearly nonjusticiable. See Valvo v. Freedom of Information Commission, 294 Conn. 534, 543-45, 985 A.2d 1052 (2010) (providing comprehensive analysis regarding this basic proposition); id. at 543-44 (" Our jurisprudence concerning the trial court's authority to overturn or to modify a ruling in a particular case assumes, as a proposition so basic that it requires no citation of authority, that any such action will be taken only by the trial court with continuing jurisdiction over the case, and that the only court with continuing jurisdiction is the court that originally rendered the ruling.").
IV
CONCLUSION
For the foregoing reasons, the State defendants' motion to dismiss (#130.00) is granted.
(a) A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process. (b) Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance. (c) This motion shall always be filed with a supporting memorandum of law and, where appropriate, with supporting affidavits as to facts not apparent on the record.