Opinion
No. CV 05 4003674
March 21, 2006
MEMORANDUM OF DECISION ON THE MOTION TO DISMISS
STATEMENT OF THE CASE
On June 23, 2005, the plaintiff, Mary Hyde, filed a sixteen-count complaint both individually and as next of friend of her minor son, Bailey Cook, Jr. The defendants in this action are the following: Robert and Donna Pysz; the town of Seymour; Seymour police officers Todd Romagna and Joseph DeFelice; Seymour's chief of police, Michael Metzler; chairman of Seymour's board of police commissioners, Stephen Chucta; and Seymour's first selectman, Robert J. Koskelowski. In counts one and two, the plaintiffs assert claims on behalf of Cook and against Robert and Donna Pysz, respectively, for assault. In counts three through nine, both plaintiffs assert claims against Romagna, Defelica, Romagna, Metzler, Chucta, and Koskelowski, in their individual capacities, and the town, respectively, for violating their right to equal protection under the fourteenth amendment to the United States constitution, as enforced under 42 U.S.C. § 1983. In counts ten through sixteen, both plaintiffs allege claims against Robert and Donna Pysz, Romagna, Donna DeFelice, Metzler, Chucta and Koskelowski, respectively, for intentional infliction of emotional distress.
It appears that the plaintiff, Mary Hyde, has not properly brought her action "per proxima amici." "The term, proxima amici . . . is a Latin phase that translates into next of kin or next of friend." (Internal quotation marks omitted.) Harper v. Hall, Superior Court, judicial district of New London, Docket No. CV 04 4001131, n. 1 (June 23, 2005, Jones, J.). It has been explained that "[t]he next friend of [a minor] plaintiff cannot maintain a suit in his own name but the suit must be brought in the name of the [minor]. The process must run in the name of the [minor] by his next friend and not in the name of the next friend acting for the [minor]." Botelho v. Curtis, 28 Conn.Sup. 493, 495-96, 267 A.2d 675 (1970). The court will not address this issue further at the present time because the defendants have not asserted an objection on this ground, and the court agrees with the majority view that this misnomer is a non-jurisdictional, curable defect. See Sockwell v. Farias-Barret, Superior Court, judicial district of Waterbury, Docket No. CV 05 4004892 (October 19, 2005, Matasavage, J.) ( 40 Conn. L. Rptr. 136, 139); Harper v. Hall, Superior Court, judicial district of New London, Docket No. CV 04 4001131 (June 23, 2005, Jones, J.); Ryan v. Depamphilis, Superior Court, judicial district of Hartford, Docket No. CV 04 4002606 (April 28, 2005, Hale, J.T.R.) ( 39 Conn. L. Rptr. 293, 295); Aglan v. Matos-Martorelli, Superior Court, judicial district of New Haven, Docket No. CV 04 0491437 (December 21, 2004, Zoarski, J.T.R.); cf. LaChance v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 98 0148936 (August 22, 2001, Doherty, J.) ( 30 Conn. L. Rptr. 245).
The plaintiffs bring count four, against "defendant DeFelica." According to the summons, no defendant is named "DeFelica," although there is a defendant named "Joseph DeFelice." The court is unable to identify the defendant for count four, although this count appears to be against Joseph DeFelice, and the motion to dismiss appears to proceed on this basis.
In count five, the complaint duplicates count three against Romagna.
The plaintiffs bring count thirteen against "defendant Donna DeFelice." According to the summons, no defendant is named "Donna DeFelice," although there is a Donna Psyz and a Joseph DeFelice. The court is unable to identify the defendant for count thirteen.
According to the complaint, Robert and Donna Pysz assaulted Hyde's son, Cook, on Seymour High School property. Promptly after the assault, the plaintiffs went to Seymour police headquarters and made a formal complaint. At that time, Romagna stated that probable cause to arrest the Pyszes existed, and he left the headquarters to arrest them. Later, Romagna returned to headquarters without the Pyszes, stating that he had not made the arrest because "the old lady knows [the chief of police, defendant] Metzler." Romagna then instructed Cook not to give a formal statement against the Pyszes.
After this incident, Hyde met with Metzler and complained about Romagna's refusal to arrest the Pyszes. At the meeting, Metzler admitted that Donna Pysz is his wife's cousin, but assured Hyde that the incident would not be overlooked simply because of family ties. Metzler ultimately assigned DeFelice to take a statement from Cook.
The complaint further alleges that after Hyde's discussion with Metzler, weeks passed and no arrests were made. The plaintiffs then contacted Seymour's first selectman, defendant Koskelowski. Koskelowski assured the plaintiffs that "he would look into the matter." The following day, Koskelowski telephoned Hyde and told her that the assault was a school matter and not a police matter, and that "he fully endorsed Metzler's handling of the case." (Plaintiffs' Complaint, count Three, ¶¶ fifteen and sixteen, p. 5.)
Thereafter, the plaintiffs allege, defendant DeFelice visited their house unannounced, and confronted Cook in a manner to intimidate Cook into dropping the charges. After DeFelice's visit, Hyde telephoned defendant Chucta, chairman of Seymour's board of police commissioners, to complain about these actions. Chucta told the plaintiffs that the alleged problems were already taken care of. However, to date, no arrest has been made. According to the complaint, the actions of Romagna, DeFelice, Metzler, Chucta and Koskelowski collectively constituted an official policy of the town of Seymour to impose a double standard of justice by immunizing relatives and friends of the chief of police from arrest and prosecution even when those friends and relatives commit crimes against children in front of witnesses. The plaintiffs allege that the defendants' failure to arrest and prosecute the Pyszes on this ground deprives them of their right to equal protection of the laws secured under the fourteenth amendment of the United States constitution as enforced through title 42 of the United States Code § 1983. The plaintiffs further claim that as a result of the defendants' actions they have suffered humiliation, fear, and emotional distress.
Section one of the fourteenth amendment to the United States constitution provides in relevant part: "No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws."
42 U.S.C. § 1983 provides in relevant part: "Every 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 or other person within the jurisdiction thereof to the deprivation of any rights . . . secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . ."
Romagna, DeFelice, Metzler, Chucta, Koskelowski and Seymour have moved to dismiss the entire complaint on the ground that the issue before the court is not ripe. They have also moved to dismiss counts three through nine on the ground that the plaintiffs lack standing. The defendants submitted a memorandum of law in support of their motion. On October 26, 2005, the plaintiffs filed a memorandum of law in opposition, and the defendants filed a reply thereto on October 28, 2005. As discussed below, the motion to dismiss should be granted for lack of standing.
Robert and Donna Pysz did not join in the motion to dismiss. Hereafter, the term defendants will be used to refer to Romagna, DeFelice, Metzler, Chucta, Koskelowski and Seymour.
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
"When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.) Id. "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
Our Supreme Court has recognized that "justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, [which all] implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 569, 858 A.2d 709 (2004). "An issue regarding justiciability . . . must be resolved as a threshold matter because it implicates [a] court's subject matter jurisdiction"; Milford Power Co., L.L.C. v. Alstom Power, Inc., 263 Conn. 616, 624, 822 A.2d 196 (2003); "[r]ipeness is [one such] justiciability doctrine"; George v. Watertown, 85 Conn.App. 606, 612, 858 A.2d 800, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004); as is standing. Broadnax v. New Haven, 270 Conn. 133, 153, 851 A.2d 1113 (2004).
A RIPENESS
The defendants argue that the case is not ripe because only two months passed between the time the Pyszes allegedly assaulted Cook and the date the plaintiffs filed the complaint. The defendants state that an officer was assigned to investigate the assault and that the complaint lacks any allegations that the defendants are no longer engaged in investigating the matter. Although the defendants appropriately concede that the Pyszes had not been arrested as of the date the complaint was filed, they argue that, at some point in the future, an arrest could be made. Because the plaintiffs' claims are based on the failure of the defendants to do an act that they may perform at some time in the near future, the defendants argue the plaintiffs' claims are not ripe for adjudication.
"[T]he rationale behind the ripeness requirement is to prevent the courts, though avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . [and therefore the court] must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Internal quotation marks omitted.) Office of the Governor v. Select Committee of Inquiry, supra, 271 Conn. 570. "[R]ipeness is peculiarly a question of timing, it is the situation now . . . that must govern." (Emphasis added; internal quotation marks omitted.) Labbe v. Pension Commission, 239 Conn. 168, 184, 682 A.2d 490 (1996); see also Buckley v. Valeo, 424 U.S. 1, 114, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).
The defendants' argument misconstrues the nature of the allegations and their relationship to the requirement of ripeness. According to the allegations of the complaint which the court must assume to be true, the defendants' conduct has already injured the plaintiffs. The extent of the injury may be ameliorated by the defendants' future actions, but the injury is not premised on a hypothetical harm or a claim that is contingent upon some event that has not or may not transpire. Read in the light most favorable to the plaintiffs, they claim that the defendants' conduct involved attempted intimidation and unfair enforcement of the law that has already caused them injury. As such, the plaintiff's claims are sufficiently "ripe" for adjudication. As to the plaintiff's § 1983 claim, however, the next question is whether the plaintiffs have sustained an injury of a nature that provides them "standing" to assert a constitutional violation.
B STANDING
Under Connecticut law, "[s]tanding is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that] he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy." (Internal quotation marks omitted.) Broadnax v. New Haven, supra, 270 Conn. 153.
"Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved The fundamental test for determining aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Id., 154. "With respect to whether the plaintiffs have demonstrated some legally protected interest, [the court] often [has] stated: `Standing concerns the question [of] whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'" Id. "As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great . . . Where the nexus between the injury and the claim sought to be adjudicated is obvious and direct, a plaintiff has standing to maintain the claim." (Citations omitted; internal quotation marks omitted.) Gay Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 464, 673 A.2d 484 (1996). The standing doctrine does not, however, require, "a plaintiff to show that it clearly was entitled to a protectable property interest in order to trigger the federal or state equal protection guarantees." (Emphasis in original.) City Recycling, Inc. v. State, 257 Conn. 429, 454, 778 A.2d 77 (2001).
As previously stated, the defendants argue that the plaintiffs lack standing to assert the constitutional claims they allege in counts three through nine of the complaint. In these counts, the plaintiffs claim that the defendants violated their federal constitutional right to equal protection. The defendants base their standing argument on Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). They contend that pursuant to Linda R.S., the plaintiffs lack standing because an alleged victim of a crime does not have a right to have the alleged perpetrator investigated, arrested or criminally prosecuted. According to the defendants, the plaintiffs' action against the Pyszes for assault provides them with legal redress.
The court notes that the standing issue presented in Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), implicated federal court jurisdiction under article III of the United States constitution, and "the constraints of Article III do not apply in state courts." Nike, Inc. v. Kasky, 539 U.S. 654, 665 n. 2, 123 S.Ct. 2554, 156 L.Ed.2d 580 (2003) (Stevens, J., concurring). In this particular case, however, the distinctions between standing in federal and state courts are without legal significance.
The plaintiffs counter that they have standing because they have alleged a series of concrete actions by the defendants which have directly caused them to suffer humiliation, fear and emotional distress premised not merely on some generalized failure to enforce the law, but on a particularized failure to enforce the law as to them and against the alleged assailants because of the latter's familial relationships. This, the plaintiffs argue, is injury in fact and, at this stage in the pleadings, is presumed to be the truth.
The court agrees with the defendants' position. The essence of the plaintiffs' constitutional claim is that they have been injured because law enforcement officials wrongfully refused to arrest Robert and Donna Pysz for assault, and thereby subject the Pyszes to criminal prosecution. The plaintiffs have not cited and the court has not located any authority which would make inapplicable to this case the well-established proposition that "[i]n American jurisprudence . . . a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., supra, 410 U.S. 619.
Certainly, the plaintiffs have an interest in maintaining and protecting Cook's personal safety; and they have a somewhat more generalized interest in the fair and balanced application of the law. Nevertheless, to the extent the plaintiffs seek to pursue these interests through the prosecution of the Pyszes, the court emphasizes the following. As explained in Linda R.S., any legally cognizable connection between the vindication of these interests and the actions of the defendants in regard to any prosecution is deficient. See generally, Gay Lesbian Law Students Assn. v. Board of Trustees, supra, 236 Conn. 464 (in order to acquire standing there must be a sufficient nexus between the injury and the claim sought to be adjudicated). This deficiency exists because given the "special status of criminal prosecutions in our system," the prosecuting authority exercises such broad discretion in the prosecution of criminal offenses, it is entirely speculative and conjectural to conclude that any such prosecution would ensue against the alleged assailants even if the defendants had acted as the plaintiffs desired. Linda R.S. v. Richard D., supra, 410 U.S. 619; see generally, Leeke v. Timmerman, 454 U.S. 83, 86-87, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981). ("Even if a prosecution could remedy respondents' injury, the issuance of an arrest warrant in this case is simply a prelude to actual prosecution . . . [and] would not necessarily lead to a subsequent prosecution.") Consequently, with rare exception, the general rule consistently followed under an equal protection analysis is that "a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." Linda R.S. v. Richard D., supra, 410 U.S. 619; accord, Lennon v. Old Saybrook, United States District Court, Docket No. 3:03 CV 2029(JCH) (D.Conn. March 21, 2005); see generally, Castle Rock v. Gonzales, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (as a general rule a citizen does not have a due process right in the enforcement of the law through arrest of another). The court appreciates the serious nature of the complaint's allegations, however, not every offensive, or even tortious, action by a public official may be transformed into a constitutional claim. See generally, DeShaney v. Winnebago County Dept. Of Social Services, 489 U.S. 189, 202, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (the due process clause "does not transform every tort committed by a state actor into a constitutional violation").
CONCLUSION
Therefore, for the foregoing reasons, the motion to dismiss filed by the defendants town of Seymour, Todd Romagna, Joseph DeFelice, Michael Metzler, Stephen Chucta and Robert J. Koskelowski is hereby granted as to counts three through nine of the complaint.
So ordered.