Zigmund v. Young

Full title: VICTOR L. ZIGMUND, JR. V. JOHN YOUNG, ET AL

Court: Connecticut Superior Court, Judicial District of Middlesex at Middletown

Date published: Nov 23, 1999

1999 Ct. Sup. 15079 (Conn. Super. Ct. 1999)

Opinion

No. CV 99 0088324

November 23, 1999

MEMORANDUM OF DECISION ON MOTION TO DISMISS (#105)

ARENA, JUDGE.

I. Facts

The plaintiff, Victor L. Zigmund, Jr., is a patient at the Whiting Forensic Division of the Connecticut Valley Hospital in Middletown, Connecticut (Whiting). He brought this pro se action by complaint filed February 23, 1999 against a number of Whiting employees in their official and individual capacities.¹ The complaint consists of six counts.

1 The defendants are John Young, Georgia Hutchinson, Donald Phelps, David Seifert, Louise Patterson, and Hilliard Foster.

Count one alleges a violation of the Patients' Bill of Rights, General Statutes § 17a-541.² Count two alleges a violation of the Patients' Bill of Rights, General Statutes § 17a-542.³ Count three alleges a violation of Article First, Section 10 of the Connecticut Constitution.⁴ Count four alleges a violation of Article First, Section 14 of the Connecticut Constitution.⁵ Count five alleges a violation of the Fourteenth Amendment to the United States Constitution. Lastly, count six alleges that the defendants have chilled the plaintiff's exercise of his right of access to the courts under the First Amendment to the United States Constitution and that the defendants have punished him for exercising his right of access to the courts.

2 Section 17a-541 provides, in pertinent part: "No patient hospitalized or treated in any public or private facility for the treatment of persons with psychiatric disabilities shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and enter into contracts, except in accordance with due process of law. . . ."

3 Section 17a-542 provides, in pertinent part: "Every patient treated in any facility for treatment of persons with psychiatric disabilities shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy. Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder. . . ."

4 Article First, Section 10 provides: "All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."

5 Article First, Section 14 provides: "The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance."

In his prayer for relief, the plaintiff requests the following: a temporary and permanent injunction that the defendants cease and desist from engaging in actions which punish him for exercising his right of access to the courts or interfere with the exercise of such rights; damages pursuant to General Statutes § 17a-550 and 42 U.S.C. § 1983 for the deprivation of his civil rights; and a declaratory judgment holding that the defendants violated his civil rights.

The defendants move to dismiss the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction.

II. Standard

"The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter." (Internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 645-46 n. 13, 668 A.2d 1314 (1995). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996) . "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . . ." (Brackets in original; citation omitted; internal quotation marks omitted.) Figueroa v. C S Ball Bearing, 237 Conn. 1, 4, 67. 5 A.2d 845 (1996).

III. Discussion

Counts one through six arise out of the care that the plaintiff has received at Whiting. Typically, the courts have granted broad discretion to health care professionals regarding the appropriate treatment plans for patients. See Mahoney v. Lensink, 213 Conn. 548, 566-67, 569 A.2d 518 (1990).

A. Section 17a-550 claims for relief

The defendants argue that the plaintiff's claims for damages under General Statutes § 17a-550⁶ for violation of the Patients' Bill of Rights as to the defendants in their individual capacities are improper because such claims can be brought only against the state, not state officials in their individual capacities. The defendants further argue that the plaintiff's claims for damages under § 17a-550 must fail as to the defendants in their individual capacities because the allegations do not demonstrate that the defendants acted in a wanton, reckless or malicious manner necessary to overcome their immunity under General Statutes § 4-165.

6 Section 17a-550 provides: "Any person aggrieved by a violation of sections 17a-540 to 17a-549, inclusive, may petition the superior court within whose jurisdiction the person is or resides for appropriate relief, including temporary and permanent injunctions, or may bring a civil action for damages."

In his memorandum of law in opposition to the defendants' motion to dismiss, the plaintiff argues that he is suing the defendants in their official capacities for damages and injunctive relief under § 17a-550. The plaintiff further argues that the complaint sufficiently alleges wanton, reckless and malicious conduct that deprives the defendants, in their individual capacities, of the protection of § 4-165.

There is no personal or individual liability of state employees created by § 17a-550. See Bradley v. Central Naugatuck Valley Help, Superior Court, judicial district of Waterbury, Docket No. 126436 (February 20, 1997, Vertefeuille J.). Under § 4-165⁷, however, a state employee may be liable in his individual capacity for a violation of § 17a-550 if the employee's actions are wanton, reckless or malicious.

7 Section 4-165 provides, in relevant part: "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. . . ."

The plaintiff generally alleges that the actions of the defendants were "willful, wanton, and reckless." Nevertheless, he has failed to allege any actions on behalf of the defendants that rise above allegations of mere negligence. "In making a claim for willful or malicious conduct, the plaintiff must do more than merely incorporate those words into the complaint. . . . The complaint must make a specific allegation setting out the conduct that is claimed to be reckless or malicious. . . ." (Citation omitted; internal quotation marks omitted.) Sidarweck v. Quaezar, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 345429 (November 26, 1997, Skolnick, J.). Therefore, the defendants, as individuals, are protected from the plaintiff's claims by § 4-165.

Accordingly, with respect to counts one through six, to the extent that the plaintiff seeks damages from the defendants in their individual capacities under § 17a-550, the motion to dismiss is granted.⁸

8 Thus, the plaintiff's claims for damages and injunctive relief under § 17a-550 against the defendants in their official capacities remains. Under § 17a-550 acts of mere negligence do not provide a basis for an action. See Mahoney v. Lensink, supra, 213 Conn. 572. Although the court finds that no count sufficiently alleges any actions on behalf of the defendants that rise above allegations of mere negligence, this issue is more properly raised on a motion to strike.

B. Section 1983 claims for relief

The defendants argue that the plaintiff's claims for monetary damages under 42 U.S.C. § 1983 against the defendants in their official capacities are barred by the doctrine of sovereign immunity. In response, the plaintiff argues that, with respect to counts five and six, he is suing the defendants in their individual capacities for monetary damages under § 1983, and is suing the defendants in their official capacities for injunctive and declaratory relief under § 1983.

Section 1983 "provides a civil claim for damages against any person who, acting under color of state law, deprives another of a right, privilege or immunity secured by the Constitution or the laws of the United States."⁹ (Emphasis added.) Thomas v. Roach, 165 F.3d 137, 149 (2d Cir. 1999). "[N]either a State nor its officials acting in their official capacities are persons under § 1983." (Internal quotation marks omitted.) Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Suits against the states, including § 1983 claims, are barred by the doctrine of sovereign immunity "unless the state, by appropriate legislation, consents to be sued." Federal Deposit Ins. Co. v. Peabody, N.E., Inc., supra, 239 Conn. 101.

9 Section 1983 provides, in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ."

The Connecticut Supreme Court has held, however, that sovereign immunity is not a defense in an action seeking declaratory or injunctive relief. See Doe v. Heintz, 204 Conn. 17, 31-32, 526 A.2d 1318 (1987). In addition, state officials may be held personally liable for damages under § 1983 when sued in their individual capacities. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991).

Accordingly, with respect to counts five and six, to the extent that the plaintiff seeks to sue the defendants for damages in their official capacities under § 1983, the motion to dismiss is granted.¹⁰

10 Therefore, as to counts five and six, the plaintiff's claims for damages under § 1983 against the defendants in their individual capacities and the plaintiff's claims for declaratory and injunctive relief under § 1983 against the defendants in their official capacities remain. "The United States Supreme court has held, in the context of 1983 actions, that acts of mere negligence do not violate an individual's rights under the due process clause of the United States constitution." Mahoney v. Lensink, supra, 213 Conn. 572. Moreover, for a claim of retaliation for the exercise of First Amendment rights, a plaintiff must demonstrate retaliatory intent. See Greenwich Citizens Comm. V. Counties of Warren, 77 F.3d 26, 30-32 (2d Cir. 1996). Although the court finds that there is nothing in the allegations of the plaintiff's complaint to suggest that the defendants' actions rise above mere negligence, this issue is more appropriately addressed on a motion to strike.

IV. Conclusion

For the reasons herein stated, the defendants' motion to dismiss the plaintiff's complaint ought to be and is hereby granted.

It is so ordered.

By the court

Arena, J.