Roman et al v. Leibert et alMOTION to Dismiss for Lack of Jurisdiction /Insufficient Service/Failure to State a ClaimD. Conn.March 10, 20171 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT LOUIS ROMAN : No. 3:16-cv-01988-JCH Plaintiff : : v. : : BNY WESTERN TRUST, ET AL. : Defendants : MARCH 10, 2017 MOTION TO DISMISS SECOND AMENDED COMPLAINT Pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(5), and 12(b)(6), the defendants-the Honorable Superior Court Judge Patrick L. Carroll, III, the Honorable Superior Court Judge Barbara N. Bellis, the Honorable Superior Court Judge Theodore R. Tyma, the Honorable Superior Court Judge John F. Blawie, the Honorable Superior Court Judge Michael Hartmere, the Honorable Superior Court Judge Alfred J. Jennings, Jr., the Honorable Superior Court Judge Richard Gilardi, Connecticut Senator Gary A. Holder-Winfield (Chairman of the Connecticut Legislature Banking Committee), and Michele Sensale (collectively, the “State Defendants”)- hereby move to dismiss the plaintiff’s Second Amended Complaint filed on February 2, 2017, in its entirety. The basis for dismissal is the court’s lack of subject matter jurisdiction and the plaintiff's failure to state a claim. Specifically, the plaintiff’s claims are barred due to: (1) the Younger abstention doctrine; (2) the Anti-Injunction Act; (3) the Eleventh Amendment; (4) absolute judicial immunity; (5) qualified immunity; (6) improper and insufficient service of process; and (9) failure to state a claim. Dismissal is therefore warranted ORAL ARGUMENT NOT REQUESTED Case 3:16-cv-01988-JCH Document 29 Filed 03/10/17 Page 1 of 3 2 The State Defendants have submitted an accompanying memorandum of law in support of this motion. STATE DEFENDANTS GEORGE JEPSEN ATTORNEY GENERAL BY: /s/ Gary W. Hawes Gary W. Hawes (ct18673) Assistant Attorney General Office of the Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 T: (860) 808-5020 F: (860) 808-5347 gary.hawes@ct.gov Case 3:16-cv-01988-JCH Document 29 Filed 03/10/17 Page 2 of 3 3 CERTIFICATION I hereby certify that on March 10, 2017, a copy of the foregoing Motion to Dismiss was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. BY: /s/ Gary W. Hawes Gary W. Hawes, AAG Case 3:16-cv-01988-JCH Document 29 Filed 03/10/17 Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT LOUIS ROMAN : No. 3:16-cv-01988-JCH Plaintiff : : v. : : BNY WESTERN TRUST, ET AL. : Defendants : MARCH 10, 2017 MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE SECOND AMENDED COMPLAINT The defendants, the Honorable Superior Court Judge Patrick L. Carroll, III, the Honorable Superior Court Judge Barbara N. Bellis, the Honorable Superior Court Judge Theodore R. Tyma, the Honorable Superior Court Judge John F. Blawie, the Honorable Superior Court Judge Michael Hartmere, the Honorable Superior Court Judge Alfred J. Jennings, Jr., the Honorable Superior Court Judge Richard Gilardi, Connecticut Senator Gary A. Holder-Winfield (Chairman of the Connecticut Legislature Banking Committee), and Michele Sensale (collectively, the “State Defendants”), hereby submit this Memorandum of Law in support of their Motion to Dismiss the Second Amended Complaint (“SAC”) (See Doc. No. 18.) The plaintiff’s claims against the State Defendants are barred in their entirety by: (1) the Younger abstention doctrine; (2) the Anti-Injunction Act; (3) the Eleventh Amendment; (4) absolute judicial immunity; (5) qualified immunity; and (6) improper and insufficient service of process. Further, if the Court somehow concludes that it may exercise jurisdiction over this matter, it nevertheless must dismiss all claims against the State Defendants for failure to state a claim upon which relief can be granted. ORAL ARGUMENT NOT REQUESTED Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 1 of 15 2 BACKGROUND This action arises out of a foreclosure matter that the defendant Bank of New York Trustee (“BNY”) brought against the plaintiff in state court on November 14, 2000. (See The Bank of New York Trustee v. Diane L. Roman, Docket No. FBT-CV-00-0378565-S (Conn. Super. 2000).) The state court foreclosure matter resulted in a judgment of strict foreclosure against Plaintiff on March 13, 2014. The SAC contains no facts regarding the State Defendants’ role in the alleged legal violations, so presumably, the State Defendants are included in the SAC due to their involvement with the foreclosure action. On July 12, 2016, the plaintiff filed a voluntary petition for relief under Chapter 13 of Title 11 of the U.S.C., Bankruptcy Case No. 16-50924. (SAC, p.5.) Subsequent to the plaintiff’s bankruptcy filing, BNY took action with respect to the bankruptcy case to which the plaintiff also objects. (SAC, p.5-6.) This action followed. In the SAC, the plaintiff alleges that the parties and attorneys involved in the foreclosure matter engaged in various improprieties during the course of that proceeding, and that BNY lacked standing to bring the foreclosure proceeding. (SAC, p.3.) The plaintiff also makes numerous allegations regarding the defendants generally, none of which logically include the State Defendants. For example, the plaintiff alleges the following: This is an action for declaratory judgment, actual and punitive damages, injunctive relief field by the Plaintiff/debtor LOUIS A ROMAN (hereinafter “PLAINTIFF”) to determine the true owner of the Plaintiff’s debt not Discharged and to determine the interest of the Defendants in the residential real estate property of the Plaintiff and to determine the amount of the allowed secured claim, if any, of the Defendants. Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 2 of 15 3 (SAC, p.6.) The State Defendants clearly have no interest in the plaintiff’s real estate property, so most, if not all, of these allegations cannot apply to the State Defendants. The only time the State Defendants are mentioned in the SAC is when the plaintiff alleges that the “State Courts” obstructed justice and ignored and suppressed evidence. (SAC, p.5.) Based on the above allegations, the plaintiff seeks a declaratory judgment, money damages, attorneys’ fees, and costs of litigation. (SAC, pp.16-18.)1 ARGUMENT I. STANDARD OF REVIEW A. Federal Rule of Civil Procedure 12(b)(1) “A case is properly dismissed for lack of subject matter jurisdiction under [Fed. R. Civ. P.] 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The “plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002). In assessing a motion to dismiss for lack of subject matter jurisdiction, the court must “accept as true all material factual allegations in the complaint.” Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). The court, however, must refrain from “drawing from the pleadings inferences favorable to the party asserting [jurisdiction].” Id. B. Federal Rule of Civil Procedure 12(b)(5) 1 The plaintiff makes numerous allegations in the SAC, but the three counts identified remain libel of title (Count I), declaratory judgment on the validity of the mortgage lien (Count II), and abuse of process and 14th Amendment right to due process (Count III). Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 3 of 15 4 A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) must be granted if the plaintiff fails to serve a copy of the summons and complaint on the defendants in accordance with Rule 4 of the Federal Rules of Civil Procedure. Cole v. Aetna Life & Cas., 70 F. Supp. 2d 106, 109 (D. Conn. 1999). Plaintiff bears the burden to demonstrate that service has properly been effectuated in accordance with that rule. Id. C. Federal Rule of Civil Procedure 12(b)(6) To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain sufficient factual matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotation marks omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic v. Twombley, 550 U.S. 544, 555 (2007) (internal quotations, citations, and alterations omitted). Thus, unless a plaintiff’s well-pleaded allegations have “nudged [its] claims across the line from conceivable to plausible, [the plaintiff’s] complaint must be dismissed.” Id. at 570; Iqbal, 129 S. Ct. at 1950-51. Moreover, a court “cannot read into the complaint the missing allegations crucial to [a plaintiff’s] claim.” Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 91 (2d Cir. 2000). II. THE YOUNGER ABSTENTION DOCTRINE BARS ALL CLAIMS AGAINST THE STATE DEFENDANTS The Younger abstention doctrine requires federal courts to abstain from exercising jurisdiction over federal claims that involve any of three types of state court proceedings: (1) “ongoing state criminal prosecutions”; (2) “civil enforcement proceedings”; and (3) “civil Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 4 of 15 5 proceedings involving certain orders . . . in furtherance of the state courts ability to perform their judicial functions.” Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013). If a federal plaintiff’s claims implicate any of those types of state court proceedings, then the federal court must abstain if: (1) the state court proceeding is ongoing at the time the plaintiff brings his federal lawsuit; (2) the state court proceeding implicates an important state interest; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of her federal claims. Villeneuve v. Connecticut, No. 3:10-cv-296 (JBA), 2010 WL 4976001, at *6 (D. Conn. Dec. 2, 2010). The Younger abstention doctrine applies here. First, numerous courts in this Circuit have held that state court foreclosure proceedings are the type of civil proceedings in furtherance of the state courts’ ability to perform their judicial functions that Sprint contemplates. Santana v. Fed. Nat'l Mortgage Ass’n, No. 1:15-cv-1424 (TJM/DJS), 2016 WL 676443, at *2 (N.D.N.Y. Feb. 18, 2016); Wenegieme v. US Bank Nat’l Ass’n, No. 16-cv-2634 (AMD), 2016 WL 3348539, at *2 (E.D.N.Y. June 9, 2016); Abbatiello v. Wells Fargo Bank, N.A., No. 15-cv-4210 (SJF/ARL), 2015 WL 5884797, at *4 (E.D.N.Y. Oct. 8, 2015). The plaintiff’s federal action seeks to upset the foreclosure proceeding in state court, which is a civil proceeding in which the state court is performing its proper judicial function. The Younger abstention doctrine applies. Second, all three of the requirements for Younger abstention are satisfied. The state court foreclosure proceeding was ongoing when the plaintiff filed this lawsuit.2 That proceeding implicates important state interests, and the plaintiff was free to press any federal claims in the 2 The plaintiff filed this lawsuit on December 5, 2016. Much has transpired in the foreclosure action since that date, including a Proposed Execution of Ejectment and a Remand from Federal District Court. (See, Case Detail for BNY Western Trust v. Roman Diane, et al., FBT-CV-00-0378565-S, attached as Exhibit A.) Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 5 of 15 6 state court foreclosure action-and in any appeal to the state appellate courts-if he was inclined to do so. As this and other courts have repeatedly held in analogous circumstances, the Younger abstention doctrine bars this Court from exercising jurisdiction over the case. E.g., Billie v. Aurigremma, No. 3:13-cv-1432 (JBA), 2013 WL 6331358, at *2 (D. Conn. Dec. 5, 2013); Braca v. EMC Mortgage Corp., No. 3:13-cv-1036 (JBA), 2013 WL 4498729, at *4 (D. Conn. Aug. 20, 2013); Santana, No. 1:15-cv-1424 (TJM/DJS), 2016 WL 676443, at *2 (N.D.N.Y. Feb. 18, 2016). III. THE ANTI-INJUNCTION ACT BARS PLAINTIFF’S CLAIMS FOR INJUNCTIVE RELIEF The Anti-Injunction Act provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. “It does not matter whether the requested injunction would stay ongoing proceedings or prevent the parties from enforcing an order that has already issued. Unless one of the enumerated exceptions applies, the court may not enjoin [a] state court foreclosure action.” Rhodes v. Advanced Prop. Mgmt. Inc., No. 3:10-CV-826 JCH, 2011 WL 3204597, at *1 (D. Conn. July 26, 2011) (quotation marks omitted). In considering these exceptions, the Supreme Court has directed that “[a]ny doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy.” Atl. Coast Line R. Co. v. Bhd. of Locomotive Engineers, 398 U.S. 281, 297 (1970). The Second Circuit, this Court, and other courts in this Circuit repeatedly have held that the Anti-Injunction Act applies to state court foreclosure proceedings, and that it prohibits Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 6 of 15 7 federal courts from issuing injunctions related to such proceedings. Billie v. Aurigremma, No. 3:13-cv-1432 (JBA), 2014 WL 1117860, at *1-2 (D. Conn. Mar. 19, 2014); see, e.g., Abbatiello, 2015 WL 5884797 at *5, citing Ungar v. Mandell, 471 F.2d 1163, 1165 (2d Cir.1972); Billie, 2013 WL 6331358, at *2; Drown v. Town of Northfield, No. 2:14-cv-80, 2015 WL 1393250, at *6 (D. Vt. Mar. 25, 2015); Wenegieme, 2016 WL 3348539, at *2-3; Attick v. Valeria Assocs., L.P., 835 F.Supp. 103, 114-15 (S.D.N.Y.1992). The Court should reach the same conclusion here. IV. THE ELEVENTH AMENDMENT BARS ALL OFFICIAL CAPACITY CLAIMS AGAINST THE STATE DEFENDANTS It is well established that the Eleventh Amendment bars federal courts from entertaining suits commenced or prosecuted against a state or its officers. Hans v Louisiana, 134 U.S. 1, 15 (1890); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). To overcome the Eleventh Amendment bar, a plaintiff must establish that the state has consented to suit in unequivocal terms, or that Congress, pursuant to a valid exercise of power, unequivocally has expressed its intent to abrogate the State’s Eleventh Amendment immunity. Green v. Mansour, 474 U.S. 64, 68 (1985). In addition, under the Ex Parte Young doctrine, “[a] plaintiff may avoid the Eleventh Amendment bar to suit and proceed against individual state officers . . . in their official capacities, provided that his complaint (a) alleges an ongoing violation of federal law and (b) seeks relief properly characterized as prospective.” Deposit Ins. Agency v. Superintendent of Banks, 482 F.3d 612, 618 (2d Cir. 2007) (citations omitted; internal quotation marks omitted). Plaintiff cannot avoid the Eleventh Amendment bar here. Plaintiff does not identify any statute by which the State has consented to suit in federal court for any of Plaintiff’s claims. Nor does he identify any statute by which Congress has expressly abrogated the State’s Eleventh Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 7 of 15 8 Amendment immunity for Plaintiff’s claims. To the extent that Plaintiff seeks money damages in the SAC against the State Defendants, therefore, the Eleventh Amendment categorically bars such relief. The Eleventh Amendment likewise bars any official capacity claims for injunctive relief because the Ex Parte Young doctrine is not satisfied. First, Plaintiff does not allege an ongoing violation of federal law by the State Defendants. Rather, he generally claims that the State Defendants’ pastparticipation in the foreclosure case is actionable, without an applicable citation to any federal law or right. In addition, the plaintiff’s requested relief is primarily retrospective: money damages, attorneys’ fees, and costs of litigation. Even the declaratory relief requested is to correct the past decisions of the Connecticut courts. The Eleventh Amendment bars the plaintiff’s official capacity claims. V. THE STATE DEFENDANT JUDGES ARE ENTITLED TO ABSOLUTE JUDICIAL IMMUNITY FOR ALL INDIVIDUAL CAPACITY CLAIMS AGAINST THEM It is well established that a judge may not be civilly sued for judicial acts that he undertakes in his capacity as a judge.3 Mireles v. Waco, 502 U.S. 9, 9 (1991). “[I]t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” Id. at 10. Without such immunity, the “independent and impartial exercise of judgment vital to the judiciary might be impaired” by the fear of being subjected to liability. Antoine v. Byers & Anderson, 508 U.S. 429, 435 (1993). 3 Absolute judicial immunity applies to all of the State Defendants but two: Gary Winfield and Michele Sensale. Gary Winfield is a State Senator, Deputy Majority Leader, and Co-Chair of the Banking Committee. Michele Sensale is a Mediation Specialist II with the Judicial Branch. Although Senator Winfield and Ms. Sensale do not receive the protections of absolute judicial immunity, all other bases for the Motion to Dismiss apply to them. Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 8 of 15 9 Like other forms of official immunity, therefore, “judicial immunity is an immunity from suit, not just from ultimate assessment of damages”; Mireles, 502 U.S. at 11; and it applies regardless of whether there are allegations of fraud, malice, or bad faith. Patterson v. Rodgers, 708 F. Supp. 2d 225, 235 (D. Conn. 2010). Importantly, moreover, judicial immunity applies to claims for money damages; Mireles, 502 U.S. at 11; as well as claims for injunctive relief “unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983; see Huminski v. Corsones, 386 F.3d 116, 136-37 and n.23 (2d Cir. 2004) (describing quoted language in § 1983 as statutory judicial immunity from claims seeking injunctive relief). In this case, all of the plaintiff’s allegations against the State Defendant Judges can only relate to the actions they took (or failed to take) in connection with the state court foreclosure proceedings because the plaintiff has not alleged any specific conduct of the State Defendants. Such actions clearly constitute “judicial acts” that were taken in the course of the Judges’ performance of their official judicial functions. The plaintiff does not allege that the Judges violated a declaratory decree, or that declaratory relief was unavailable. The Judges are therefore entitled to absolute judicial immunity from any kind of relief against them in their individual capacities, including both injunctive relief and money damages. VI. ALL OF THE STATE DFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY FOR ANY INDIVIDUAL CAPACITY CLAIMS AGAINST THEM. To the extent that the State Defendants have been sued in their individual capacity4 and are not entitled to absolute judicial immunity, they are nevertheless entitled to qualified 4The only indication that the State Defendants have been sued in their individual capacity is on page 18 of the SAC, where the plaintiff states the following in a second prayer for relief in the third count: “Plaintiff moves this Honorable Court to issue relief by; official capacity and individual capacity and prays for the following relief . . . .” The plaintiff did not serve the State Defendants individually, however. That issue is addressed in section VII, infra. Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 9 of 15 10 immunity. Qualified immunity protects government officials from liability on account of their performance of discretionary official functions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998). Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 200 (2001), citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Thus, the privilege is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Saucier, 533 U.S. at 201. There is a high presumption “in favor of finding qualified immunity to protect ‘all but the plainly incompetent or those who knowingly violate the law.’” Anderson v. Creighton, 483 U.S. 635, 639 (1987), quoting Malley v. Briggs, 475 U.S. 335, 341 (1986). A finding of qualified immunity turns upon the “objective legal reasonableness” of the allegedly unlawful official action, “assessed in light of the legal rules that were clearly established at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987), quoting Harlow, 457 U.S. at 818-19. To determine whether a state actor is entitled to qualified immunity, therefore, the court must first determine whether the right at issue was “clearly established” at the time of defendant’s alleged misconduct. Saucier, 533 U.S. at 201. Even if a defendant’s actions violated a clearly established law, the defendant still must be accorded qualified immunity if his or her actions were objectively reasonable. Connecticut ex rel Blumenthal v. Crotty, 2003 U.S. App. Lexis 20041 at *46 (2d Cir. 2003). Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 10 of 15 11 The State Defendants are clearly entitled to qualified immunity. Again, the plaintiff does not allege any conduct by the State Defendants that implicates any federal right or law, and he certainly has not alleged any facts or cited any legal authority that “clearly establishes” that the State Defendants’ conduct violated such federal rights or laws. Nor does the plaintiff allege any facts to demonstrate that the State Defendants’ alleged actions were objectively unreasonable under the circumstances. The plaintiff has simply included the State Defendants in the case and made general accusations regarding the State Courts. The State Defendants are therefore entitled to qualified immunity. VII. THE STATE DEFENDANTS HAVE NOT BEEN PROPERLY SERVED IN THEIR INDIVIDUAL CAPACITY A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) must be granted if the plaintiff fails to serve a copy of the summons and complaint in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure. Rzayeva v. United States, 492 F. Supp. 2d 60, 74, 76 (D. Conn. 2007). In this case, the plaintiff has sued the State Defendants in both their individual and official capacities,5 but served them only in their official capacity. Any individual capacity claims are thus barred. The applicable service requirements for individual capacity claims against state officials are set forth in Fed. R. Civ. P. 4(e). That rule provides that service must be made on the State Defendants in their individual capacity by either: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: 5 See footnote 3, supra. Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 11 of 15 12 (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 4(e). Under Connecticut law, service of process on an individual in any civil action must be made “by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.” Conn. Gen. Stat. § 52-57(a). The burden to establish that service has properly been performed in accordance with these rules lies with the serving party. Bryans v. Cossette, 2012 U.S. Dist. LEXIS 22915 at *3-4 (D. Conn. 2012). Here, service was made at the Attorney General’s Office, as required by Fed. R. Civ. P. 4(j) and Conn. Gen. Stat. § 52-64, for suits against government officials in their official capacity. To date, none of the State Defendants have been served in-hand or at their abode. Any individual capacity claims against the State Defendants must therefore be dismissed for improper and insufficient service of process. VIII. THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED To state a claim upon which relief may be granted, the “complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), quoting Bell Atlantic v. Twombley, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (Emphasis added.) Id., citing Twombley, 550 U.S. at 556. Although a complaint “does not need detailed Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 12 of 15 13 factual allegations,” this standard “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombley, 550 U.S. at 555 (internal quotations, citations, and alterations omitted). Unless a plaintiff’s well-pleaded allegations have “nudged [its] claims across the line from conceivable to plausible, [the plaintiff’s] complaint must be dismissed.” Id. at 570; Iqbal, 129 S. Ct. at 1950-51. Importantly, although pro se complaints must be construed liberally to state the strongest argument that they suggest, they “nevertheless remain subject to the general standard applicable to all civil complaints under the Supreme Court’s decisions in Twombly and Iqbal.” Brickhouse v. City of New York, 09 CIV. 9353 NRB, 2010 WL 3341845 at *2 (S.D.N.Y. Aug. 16, 2010), citing Schwamborn v. County of Nassau, 348 Fed. Appx. 634, 2009 WL 3199001 at *1 (2d Cir. 2009) (Summary Order); see also Harris v. Mills, 572 F. 3d 66, 71 (2d Cir. 2009). Even for pro se litigants, therefore, the Court “cannot read into the complaint the missing allegations crucial to [a plaintiff’s] claim” or characterize the allegations to state a claim that they cannot plausibly be read to suggest. Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 91 (2d Cir. 2000). The plaintiff has not remotely satisfied these pleading requirements here. The plaintiff generally alleges that the State Defendants obstructed justice and ignored and suppressed evidence, but these are mere conclusory allegations without any factual evidence to support them. Indeed, there are no factual allegations to lead one to conclude that there are plausible claims against the State Defendants. As such, all claims against the State Defendants should be dismissed for failure to state a claim. Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 13 of 15 14 CONCLUSION The Court should dismiss this case in its entirety and/or with respect to the State Defendants with prejudice. Respectfully submitted, STATE DEFENDANTS GEORGE JEPSEN ATTORNEY GENERAL BY: /s/ Gary W. Hawes Gary W. Hawes (ct18673) Assistant Attorney General Attorney General’s Office 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 T: 860-808-5020 F: 860-808-5347 gary.hawes@ct.gov Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 14 of 15 15 CERTIFICATE OF SERVICE I hereby certify that on March 10, 2017, a copy of the foregoing was electronically filed. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. /s/ Gary W. Hawes Gary W. Hawes, AAG Case 3:16-cv-01988-JCH Document 29-1 Filed 03/10/17 Page 15 of 15 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 1 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 2 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 3 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 4 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 5 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 6 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 7 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 8 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 9 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 10 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 11 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 12 of 13 Case 3:16-cv-01988-JCH Document 29-2 Filed 03/10/17 Page 13 of 13
