Opinion
No. CV 05-4011876
March 7, 2006
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS # 102 and #103
In February 2005, the plaintiff, Terrell Watkins, filed a complaint pro se against the following defendants: (1) William Snider (in his individual capacity); (2) the law offices of William Snider ("law office"); (3) Douglas Nash, retired chief of legal services for the public defender services (in his individual capacity); and (4) the State of Connecticut. On July 8, 2005, the attorney general filed a motion to dismiss on behalf of the State and Nash. (Motion #102.) On July 18, 2005, Snider and the law office filed a motion to dismiss. (Motion #103.) These motions will be discussed below.
FACTS
The plaintiff is incarcerated in a Connecticut correctional institute. This dispute arises out events that unfolded during and after the appeal of his criminal conviction. William Snider was appointed special public defender for the plaintiff's case. Throughout the appeal process, the plaintiff was dissatisfied with Snider's lack of communication. The plaintiff filed a grievance complaint with the statewide grievance committee. Watkins v. Snider, grievance complaint No. 01-0885. After the grievance was filed, but before the committee held a hearing, the Appellate court affirmed the plaintiff's conviction. State v. Watkins, 72 Conn.App. 804, 806 A.2d 1072 (2002). During the hearing, the plaintiff asked Snider whether he filed a petition for certification to the Connecticut Supreme Court. Snider replied, under oath, "the petition for cert. was filed . . . I believe that it was filed with permission for it to be filed late." Watkins v. Snider, grievance complaint No. 02-0985. Thereafter, the plaintiff contacted the chief clerk of the Connecticut Supreme Court to verify that Snider, had, in fact, filed the petition for certification. He discovered that no certification was filed on his behalf. The plaintiff then filed a second grievance complaint, No. 02-0985. Snider did not respond to this grievance complaint. Snider was served with a subpoena duces tecum, commanding him to appear before the grievance committee at the second hearing. He failed to show up, and did not produce the requested documents. The committee ordered Snider presented to the Superior Court because of his false statement given under oath at the first hearing, his failure to appear and produce the subpoenaed documents at the second hearing; and other unrelated matters. The Superior Court suspended Snider from the practice of law for nine months, finding that he substantially violated his duties owed to the plaintiff and that the plaintiff was significantly harmed. The court, however, also found that Snider did not knowingly make a false statement. Statewide Grievance Committee v. Snider, Superior Court, judicial district of New Britain, Docket No. CV 040527192 (January 27, 2005, Robinson, J.).
As to the defendant Nash, the plaintiff alleges that he complained about Snider's lack of communication during the appeals process in a written letter. Nash never replied to the letter. The plaintiff then asked the chief clerk of the Supreme Court for help. The clerk purportedly forwarded the plaintiff's letter to both Nash and Snider. The plaintiff did not receive a response from this second letter.
These facts form the basis of the plaintiff's actions against all the defendants. He seeks damages for mental anguish, punitive damages, and any further relief which justice may demand.
THE COMPLAINT
Watkins alleges 42 U.S.C. § 1983 violations, but a reading of the complaint "in a light most favorable to the plaintiff," Brookridge District Ass'n. v. Planning and Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002), shows that he also alleges state common law claims. He alleges that (1) he did not have proper assistance of counsel; (2) Snider misled him; (3) Snider gave him false information under oath and committed perjury against him, and (4) Nash was negligent in his actions because Nash did not help the plaintiff and was responsible for the actions of Snider under respondeat superior. He asks this court to hear this case, invoking § 1983 and Connecticut state law. A reading in a light most favorable to Watkins shows that he alleges the defendants' actions were in violation of Connecticut common law and caused him mental anguish. Therefore, this court will discuss both § 1983 and Connecticut common law.
42 U.S.C. § 1983 provides, in relevant part, that "[e]very 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 . . . 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, suite in equity, or other proper proceeding for redress."
MOTION TO DISMISS #102 STATE OF CONNECTICUT AND DOUGLAS NASH Common Law
In this case, the plaintiff is barred by the doctrine of sovereign immunity from suing the State. It is a long recognized common law principle that the State cannot be sued without its consent. Fetterman v. University of Connecticut, 192 Conn. 539, 550, 473 A.2d 1176 (1984). Since there is no explicit consent by the State to be sued, either statutorily or through the claims commissioner, the plaintiff's common law claims against the State of Connecticut must fail. § 1983.
Sovereign immunity bars § 1983 cases as well. Id., 551-52. In Owen v. Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), the United States Supreme Court stated that "[w]here the immunity claimed by the defendant was well established at common law at the time Section 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act, we have construed the statute to incorporate that immunity." "The doctrine of sovereign immunity was well established at common law at the time § 1983 was enacted." Fetterman v. University of Connecticut, supra, 192 Conn. 551.
Finally, "[a] state, as an entity having immunity under the eleventh amendment to the United States constitution is not a person within the meaning of § 1983 and thus is not subject to suit under § 1983 in either federal court or state court." (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 311, 828 A.2d 549 (2003). Once again, since there is no explicit consent by the State to be sued, the motion to dismiss the § 1983 claims as to the State is granted.
NASH Common Law
The plaintiff's claims against Nash, in his individual capacity, are barred by General Statutes § 4-165. The statute provides, in part, that "no state officer or employee shall be personally liable for damage or injury, not wanton, reckless, or malicious, caused in the discharge of his duties or within the scope of his employment." Looking at the complaint in the light most favorable to the plaintiff, Nash did not reply to a letter sent by the plaintiff complaining about Snider. These facts do not illustrate wanton, reckless, or malicious conduct. In order to demonstrate such conduct, the plaintiff must allege facts that show conduct "involving an extreme departure from ordinary care." Shay v. Rossi, 253 Conn. 134, 181, 749 A.2d 1147 (2000). Nash's failure to respond to the plaintiff's letter is not tantamount to an extreme departure from ordinary care and the plaintiff does not claim such. In Paragraphs 16-18 of this complaint, the plaintiff views and alleges Nash's conduct as negligent. There are no allegations in the Complaint to suggest that Nash acted recklessly, wantonly or maliciously or that his conduct was outside the scope of his employment. Therefore, Nash cannot be personally liable pursuant to § 4-165. The motion to dismiss the common law claims of the complaint against Nash is granted.
§ 1983
"Section 1983 will not support a claim based on a respondeat superior theory of liability." Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). To the extent that Watkin's claims are based on respondeat superior, they must fail.
Second, the court must determine whether there is an allegation that Nash committed a constitutional tort. Id., 326. In Rizzo v. Goode, 423 U.S. 362 (1976), the United States Supreme court found that a general allegation of administrative negligence cannot constitute a cognizable claim under § 1983. Here, Watkins alleges that Nash was negligent in failing to respond to two letters complaining about Snider. As in Rizzo, this is not a constitutional tort and the § 1983 claim must be dismissed.
MOTION TO DISMISS #103 SNIDER AND THE LAW OFFICE
The plaintiff has made identical allegations against Snider and the law office. In turn, both defendants filed a consolidated motion to dismiss. As such, for purposes of this decision, the analysis with regard to Snider applies with equal force to the law office. CT Page 4741
§ 1983
In Polk County v. Dodson, supra, 454 U.S. 325, the United States Supreme Court held that "a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." The Court recognized that although the public defender is paid by the State, his allegiance is to his client and not the State. Id. at 321. When performing his duties, he does not work at the State's direction. He is independent from the State. Id.In addition, the Court found it would be unconstitutional for the State to attempt to control the public defender. Id. "There can be no fair trial unless the accused receives the services of an effective and independent advocate." (Emphasis added.) Id. at 322.
Watkins alleges his civil rights were violated because of Snider's actions as his lawyer. Snider, in his capacity as a special public defender, could not have acted under color of state law. Therefore, all § 1983 claims against him and the law office are dismissed.
Common Law
The defendants argue that the plaintiff's allegations cannot make out a cause of action because Watkins is barred by General Statutes § 4-165. The statutory immunity, however, is granted only to those state officials acting "within the scope of [their] employment." The statute further defines "scope of employment," in part, as "representation by an attorney appointed by the Public Defender Service Commission as a public defender . . . or an attorney appointed by the court as special assistant public defender of an indigent." Some of the plaintiff's injuries may have occurred within the scope of Snider's employment, e.g., his purported failure to file for certification. Other actions, however, were certainly not within the scope of employment, e.g., Snider's alleged false testimony under oath; his refusal to respond to the second grievance complaint; his refusal to appear before the grievance committee to answer the plaintiff's complaint although subpoenaed; and his refusal to produce the requested documents of the subpoena duces tecum.
In addition, the facts alleged by the plaintiff, viewed in a light most favorable to Watkins, can show that Snider may have acted in a "wanton, reckless or malicious" manner. As such, Snider and the law office have no protection under General Statutes § 4-165.
Snider next argues, by way of incorporating the attorney general's motion, (1) the plaintiff failed to exhaust administrative remedies; (2) the plaintiff failed to state a claim upon which relief can be granted; (3) the plaintiff has not, and cannot, allege that his conviction has been overturned; and, (4) Snider is protected by qualified immunity.
§ 4-165
Watkins does not need to exhaust any administrative remedies, despite Snider's contention, because, as explained above, Snider is not immune under § 4-165.
Failure to state a claim
The attorney general's argument that Watkins has not stated a claim upon which relief can be granted was only in reference to § 1983. The common law claims have not been addressed. Watkins claims that Snider's actions in regards to the grievance hearings caused him mental anguish. These facts are enough to state a claim for relief.
Conviction has not been overturned
Whether or not the conviction has been overturned is irrelevant to the plaintiff's common law claims. While it is true the United States Supreme Court has developed law that prohibits claims for damages as a result of criminal proceedings without a reversal in the conviction, Watkins' claims against Snider are not limited to actions arising from his criminal proceedings. The plaintiff's alleged mental anguish stems, in part, from Snider's actions with regard to the grievance hearings.
Qualified immunity
This court notes at the outset that the attorney general's memorandum of law argues nothing about Snider's qualified immunity. Presumably, Snider argues that his qualified immunity arises from his status as a public official who must be allowed to do his job in good faith without fear of being liable for damages each time he makes a decision on behalf of the State. CT Page 4743 Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In any event, Snider was not acting as a public official making a decision on behalf of the State in regards to the grievance hearings.
CONCLUSION
The motion to dismiss the complaint against defendants Nash and the State of Connecticut is hereby granted. The motion to dismiss the Section 1983 claims against defendants Snider and the law office are also granted. The common law claims against Snider and the law office, however, survive the motion to dismiss and the motion to dismiss as to those claims is denied.