Opinion
HHDCV176076730S
01-11-2018
Mark MINTO v. DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES, et al.
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE OF THE SUPERIOR COURT
This matter is before the court concerning the defendants’ motion to dismiss Counts I, II, III, IV, VII, and IX of the plaintiff’s verified complaint. The motion does not challenge other counts. The court heard oral argument on November 6, 2017.
After considering the parties’ written submissions and oral arguments, the court issues this memorandum of decision.
I
Background
The court summarizes below the plaintiff’s allegations. In the nine-count verified complaint (complaint), the plaintiff alleges the following. As of May 29, 2012, he was employed by the defendant Department of Mental Health and Addiction Services (DMHAS), as a certified police officer with the defendant Connecticut Valley Hospital Police Department.
On May 29, 2012, the plaintiff was involved in an altercation with another motorist while driving home from work. As a result of the altercation, the plaintiff was arrested and issued a misdemeanor summons for violating General Statutes § § 14-240, 14-240a, 53a-130, and 53a-181. These charges were ultimately dismissed on February 4, 2015. As a result of questioning by the officer at the scene, the plaintiff also admitted to having a licensed firearm in his vehicle.
The plaintiff’s May 29, 2012 arrest had repercussions on his employment. On May 30, 2012, the plaintiff received notice from the Connecticut State Police that as a result of his arrest, his special police powers pursuant to General Statutes § 29-18 were revoked. On or about June 6, 2012, Minto was placed on unpaid leave by the DMHAS.
Also on or about June 6, defendant Scott Courtemanche conducted an investigation on behalf of the DHMAS. The investigation concluded that the plaintiff had violated state regulations, including work place violence statutes, as well as DMHAS work rule # 4, which provides that " [f]irearms or weapons of any kind are prohibited on work sites."
On July 17, 2012, the plaintiff was provided a " Loudermill hearing, " and presented information in support of his request that his employment not be terminated. On September 26, 2012, the DMHAS issued a decision wherein the plaintiff would be suspended from work without pay for thirty (30) days in lieu of termination. In addition, the plaintiff was demoted from the position of " Police Officer" to a " Building and Grounds Patrol Officer, " and received an unsatisfactory annual service rating. The Building and Grounds Patrol Officer position has different job requirements than the Police Officer position, as well as lower hourly pay and less favorable benefits.
The plaintiff filed grievances of these decisions. A " Step Two Grievance Conference" took place on February 28, 2013, and the decisions were upheld on March 13, 2013. The plaintiff also engaged in a lengthy arbitration of the disciplinary matter, and on June 2, 2016 the arbitrator found that the discipline of the plaintiff was for just cause, and that all of the plaintiff’s grievances were denied " except for the grievance that [the plaintiff] was ‘demoted’ after serving his 30-day suspension." The arbitrator held that the " grievance was sustained to the extent indicated, and DMHAS is directed to seek the restoration of [the plaintiff’s] special police powers and, beginning with the date of March 29, 2015 and ending on the date [the plaintiff] is returned to the DMHAS Police Officer position he occupied when suspended, [the plaintiff] should receive the difference between the salary of DMHAS Police Officer and the salary of a Building and Ground Patrol Officer."
From approximately November 1, 2012 to April 27, 2015, the plaintiff went on medical leave as a result of a work-related injury sustained in 2006. Since returning to work, the plaintiff has not received the difference in salary between his former and current position, nor has he been returned to the Police Officer position.
The plaintiff’s counsel has written to the Connecticut State Police to request that his special police powers be reinstated. The plaintiff’s counsel has been advised by the Connecticut State Police that " the only reason why [the plaintiff’s] special police powers have not been reinstated is because the Chief of Police of the Connecticut Valley Hospital Police Department, refuses to permit/request that Minto’s special police powers be reinstated."
Additional references to the factual background are set forth below.
II
Standard Of Review
" The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ..." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d 106 (2010).
" 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 ... 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 counteraffidavits ... 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 counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein ... Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ..." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
" [A] challenge to the jurisdiction of the court presents a question of law ..." Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).
The facts which bear on the court’s adjudication of the motion to dismiss are not disputed. An evidentiary hearing was neither requested nor required.
III
Discussion
(1)
Counts I and II (Claims under article first, § § 8 and 20, of the Connecticut constitution)
The plaintiff’s first two counts purport to state private causes of action under article first, § § 8 and 20, of the Connecticut constitution, against all of the defendants. According to the plaintiff’s opposition to the motion to dismiss, the validity of these counts is based on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the corresponding Connecticut Supreme Court decision in Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998).
The body of Count II additionally alleges that the plaintiff has been deprived of his equal protection rights under 42 U.S.C. § § 1981 and 1983, although neither party addressed these allegations in their papers.
The court’s subject matter jurisdiction is implicated. " Any party, or the court itself, can raise the issue of subject matter jurisdiction at any time. It matters not how or by whom the question of jurisdiction is raised ... Because subject matter jurisdiction cannot be conferred by waiver or consent ... the court must address the question, suo motu if necessary, even in the absence of a motion." (Citations omitted.) Manning v. Feltman, 149 Conn.App. 224, 236, 91 A.3d 466 (2014).
The court lacks subject matter jurisdiction over these two counts because: (A) they are barred by the doctrine of sovereign immunity; and (B) in any event, they are not valid freestanding claims under the Connecticut constitution.
(A) Counts I and II are Barred by Sovereign Immunity
(i) Sovereign Immunity, Generally
" The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty." Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). " [T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (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 ... 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 on sovereign immunity grounds is proper." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept . of Transportation, 293 Conn. 342, 349-50, 977 A.2d 636 (2009), citing Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003) (Miller exceptions).
(ii) Sovereign Immunity Exceptions, Applied to the Present Case
Neither Bivens n or Binette address the issue of sovereign immunity in the context of freestanding claims under a state constitution, for the simple reason that it was not an issue in those cases. Specifically, Bivens involved federal law enforcement officers, and " [i]n Binette, our Supreme Court had no occasion to address the doctrine of sovereign immunity, as that case addressed the misconduct of municipal, not state, police officers." Martin v. Brady, 64 Conn.App. 433, 439, 780 A.2d 961 (2001), aff’d, 261 Conn. 372, 802 A.2d 814 (2002).
The present case involves claims against a Connecticut state agency, and Connecticut state police employees, and therefore the issue of sovereign immunity is implicated.
(a) First Miller Exception
As to the first Miller exception, " [i]n the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 351. The plaintiff has neither alleged nor argued a statutory waiver of sovereign immunity, nor does one appear on the face of the complaint. Likewise, the plaintiff has not alleged that he has received authorization from the claims commissioner for any of his claims. The court therefore lacks subject matter jurisdiction over the plaintiff’s claims for monetary damages as to Counts I and II.
Second Miller Exception
The second two common-law exceptions to sovereign immunity are available only to plaintiffs seeking equitable relief. The plaintiff argues in his opposition that his complaint seeks declaratory and/or injunctive relief because he seeks reinstatement of his police powers, reinstatement of his prior position, a pension adjustment, and unspecified " other relief as this Honorable Court deems just and appropriate under the circumstances." " 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 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).
" For a claim made pursuant to the second exception, complaining of unconstitutional acts ... [t]he 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.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 721, 937 A.2d 675 (2007). " A plaintiff who seeks declaratory relief from constitutional violations by the State bears a heightened burden of pleading. Otherwise, plaintiffs could circumvent proper sovereign immunity claims by invoking empty constitutional phrases. The Court must focus on the substance of the plaintiff’s allegations, not their labels he puts on them." Simso v. State, Superior Court, judicial district of Hartford, Docket No. CV 02 0819172 (April 7, 2003, Sheldon, J.).
The plaintiff does not address the second exception in his opposition to the defendants’ motion to dismiss. Nonetheless, on a motion to dismiss on jurisdictional questions, the court " must consider the allegations of the complaint in their most favorable light." Conboy v. State, supra, 292 Conn. 651. For purposes of this analysis, it is assumed that the plaintiff intended for his freestanding constitutional claims in Counts I and II to satisfy the second exception.
(i) Alleged Due Process Violation
Count I alleges that the plaintiff was deprived of his due process rights in violation of article first, § 8, of the Connecticut constitution because he was denied a property interest in his continued employment as a Police Officer due to a " biased, " " improper, " and " inaccurate" internal affairs investigation, and was denied an opportunity to be heard. See Complaint, ¶¶ 68-70.
" Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests ... some form of hearing is required before an individual is finally deprived of a property interest ... The right to be heard before being condemned to suffer grievous loss of any kind ... is a principle basic to our society." (Citations omitted; internal quotation marks omitted.) Mathews v. Eldridge, 424 U.S. 319, 332-33, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
Even assuming, arguendo, that the plaintiff had a property interest in continued employment in the same position, despite the circumstances outlined in the complaint, the plaintiff has failed to allege facts demonstrating that he was deprived of a hearing or was otherwise deprived of his due process rights. The plaintiff admits in paragraph 46 of his complaint that he had a " Loudermill hearing" on July 17, 2012, to request that his employment not be terminated. See AFSCME, Council 4, Local 2663 v. Dept. of Children & Families, 317 Conn. 238, 243, n.3, 117 A.3d 470 (2015) (Citation omitted; internal quotation marks omitted.) (" A tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story before termination ... The opportunity to present one’s ‘side of the story’ is generally referred to as a Loudermill hearing."). He also admits in paragraph 49 of his complaint that he filed grievances, and the decisions against him were nonetheless upheld after a " Step Two Grievance Conference took place on February 28, 2013." He admits in paragraph 50 of his complaint that the result of a " lengthy arbitration of this disciplinary matter" found that, among other things, " the discipline for Minto was for just cause." While the plaintiff makes a conclusory allegation in paragraph 70 that the defendants dismissed him " without giving [him] notice and an opportunity to be heard on the purported reasons for dismissal, " he fails to allege facts in support of this conclusion.
(ii) Alleged Denial of Equal Protection
Count II alleges that the plaintiff was denied his equal protection rights under article first, § 20, of the Connecticut constitution as a result of the defendants’ alleged failures with regard to the investigation. See Complaint, ¶ 72.
" A violation of equal protection by selective treatment arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) ... such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 362 (finding that plaintiff did not meet the requirement for the second Miller exception because it failed to allege an impermissible basis for differing treatment). The plaintiff’s complaint is devoid of any allegations as to how he was treated differently than any other similarly-situated person, much less that any such treatment was based on impermissible considerations. In the absence of any such allegations, the plaintiff has failed to allege facts in support of the second common-law exception to sovereign immunity.
(c) Third Miller Exception
As to the third exception, the plaintiff argues in his opposition to the defendants’ motion to dismiss that his claims against the officers " allege that those officers acted in excess of their statutory authority and/or unlawfully" because " [i]t is undoubtedly beyond an official’s authority to commit acts amounting to a violation of a person’s due process or equal protection rights, or to commit civil conspiracy, to act negligently, or to improperly use a person’s prior arrest record for employment purposes." See plaintiff’s memorandum (# 107), p. 20.
" [A] claim under this exception must do more than make a conclusory allegation that the defendants’ conduct was in excess of their statutory authority; it must allege facts that reasonably support such an allegation." Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 354. " Although we recognize the force of constitutional mandates, we are disinclined to enforce such mandates at the expense of sovereign immunity unless the plaintiff clearly has alleged facts that, if proven, would distinguish his claim for relief from standard claims of police misconduct." Martin v. Brady, 64 Conn.App. 433, 439, 780 A.2d 961 (2001), aff’d, 261 Conn. 372, 802 A.2d 814 (2002) (upholding trial court’s granting of motion to dismiss on the grounds of sovereign immunity). " In the absence of persuasive factual allegations, calling misconduct egregious does not make it so." Id., 442.
The plaintiff’s complaint identifies three individual defendants- Chief Marcias Aleksunas, an individual allegedly employed by the DMHAS as Chief of CVHPD, Chief Christopher Bozzi, an individual allegedly employed by the DMHAS as Chief of CVHPD, and Scott Courtemanche, an individual allegedly employed by DMHAS as an investigator in the labor relations division.
The plaintiff alleges in paragraphs 42 to 45 of his complaint that defendant Courtemanche conducted an investigation that determined that Minto violated certain regulations and statutes, and recommended an unpaid suspension. The complaint is devoid of factual allegations regarding any specific actions taken by defendants Aleksunas or Bozzi, or allegations explaining how any of these three named individuals engaged in conduct " in excess of their statutory authority." Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 354.
The plaintiff does allege that he has been told his special police powers have not been reinstated because " the Chief of Police of the Connecticut Valley Hospital Police Department, refuses to permit/request that Minto’s special police powers be reinstated, " see Complaint, paragraph 65, but he does not allege facts explaining how he believes the individual defendants are involved in the alleged refusal to reinstate, or how their involvement would amount to conduct outside of their statutory authority. The plaintiff has failed to allege facts in support of the third common-law exception to sovereign immunity.
(B) Validity of Freestanding Constitutional Claims Under the Connecticut Constitution
Even if the plaintiff’s first two claims were not barred by sovereign immunity, there is no freestanding basis for these claims based on the Connecticut Constitution.
The defendants argue in their motion to dismiss that the state is entitled to sovereign immunity because there is no private cause of action for claims under article first, § § 8 and 20, of the Connecticut Constitution. The lack of a private cause of action deprives the court of subject matter jurisdiction, due to a lack of justiciability. " [J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a particular matter ... A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Janulawicz v. Commissioner of Correction, 310 Conn. 265, 270, 77 A.3d 113 (2013). This argument relates to standing. See Torres v. Armstrong, Superior Court, judicial district of New Haven, Docket No. CV 99 0427057 (September 6, 2001, Thompson, J.) (granting motion to dismiss claims for violations under the Connecticut Constitution, noting that standing is " a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests ...").
In any event, the plaintiff’s first two counts should be dismissed because Connecticut courts do not recognize freestanding claims under article first, § § 8 and 20.
(i) Freestanding Constitutional Claims, in General
Both parties cite Bivens and Binette. The defendants additionally cite Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), which they claim limits Bivens and therefore prevents the plaintiff from bringing these freestanding claims under the Connecticut Constitution.
In Bivens, the Supreme Court held that, in a case arising out of the petitioner’s warrantless search and arrest by federal officers, federal courts have the power to create a private damages action under the Fourth Amendment. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 395-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Reasoning that " [a]n agent acting- albeit unconstitutionally- in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own, " and that " where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief, " the Bivens court concluded that the petitioner was " entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the Amendment." Id., 392, 397.
In Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 627 A.2d 909 (1993), the Connecticut Supreme Court rejected the plaintiff’s attempt to allege a claim for damages under article first, § 8, of the Connecticut Constitution, based on an alleged violation of due process rights with respect to a zoning application. The Kelley court expressed a concern that " we should not construe our state constitution to provide a basis for the recognition of a private damages action for injuries for which the legislature has provided a reasonably adequate statutory remedy." Id., 339. The court additionally expressed a concern that " the availability of a state Bivens action, with its potential for significant monetary awards, would encourage its pursuit by any disappointed zoning applicant whenever a zoning agency denies the sought after permit or application. The cost to towns, zoning commissions and their members of defending against a myriad of such claims, whether or not meritorious, would be great, and the courts also would incur costs in light of the increased caseload." Id., 342. Since the plaintiff in Kelley had an administrative appeal remedy available to her, the court concluded that a state Bivens -type cause of action was not appropriate.
In Binette v. Sabo, a case similarly involving a warrantless search and arrest, the Connecticut Supreme Court relied heavily on the policy reasons articulated in Bivens to recognize a common-law cause of action under article first, § § 7 and 9, of the Connecticut Constitution. See Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998). Binette did not overrule Kelley, instead noting that in Kelley the court " expressly relied on the principle of separation of powers and its requirement for judicial deference to legislative resolution of conflicting considerations of public policy." (Internal quotation marks omitted.) Id., 42-43. The Binette court reasoned that " [w]hether to recognize a cause of action for alleged violations of other state constitutional provisions in the future must be determined on a case-by-case basis ... based upon a multifactor analysis." Id., 48. " The factors to be considered include: the nature of the constitutional provision at issue; the nature of the purported unconstitutional conduct; the nature of the harm; separation of powers considerations and the other factors articulated in Bivens and its progeny; the concerns expressed in Kelly Property Development, Inc.; and any other pertinent factors brought to light by future litigation." Id., 48. The court emphasized that their " decision to recognize a Bivens-type remedy in this case does not mean that a constitutional cause of action exists for every violation of our state constitution." Id., 47. The court also noted that " Bivens and its progeny serve only as a guide. Because we are considering a claim under our state constitution, those federal court cases, based on the federal constitution, are not determinative." Id., 42.
The defendants claim that the recent decision in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017) restricted Bivens. While the Supreme Court in Ziglar does note that courts have become less inclined to recognize new constitutional claims since Bivens, it is yet to be seen what impact, if any, this case will have in Connecticut courts, addressing claims under the Connecticut Constitution. The Ziglar case concerns individuals who were detained after the September 11 attacks, and sought to bring a putative class action pursuant to Bivens, based on what they claimed to be their prolonged detention and poor conditions faced during their detention. The court noted that since Bivens, " [t]he Court adopted a far more cautious course before finding implied causes of action, " reasoning that " the ‘determinative’ question is one of statutory intent, " which is a particular challenge with respect to the Constitution. Id., 1855-6. The court concluded that " [t]he settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle of the law, are powerful reasons to retain it in that sphere" but " [g]iven the notable change in the Court’s approach to recognizing implied causes of action [ ] the court has made clear that expanding the Bivens remedy is now a disfavored judicial activity." (Internal quotation marks omitted.) Id., 1857. As instructive as Ziglar may be on future Bivens -type claims outside of the search and seizure context, Connecticut courts have already unanimously declined to allow litigants to proceed on private causes of action under article first, § § 8 and 20.
(ii) Section 8
As to the first claim specifically, Connecticut courts have previously unanimously declined to recognize a private cause of action under article first, § 8, of the Connecticut Constitution. See Kelley Property Development, Inc., supra; ATC Partnership v. Windham, 251 Conn. 597, 616-17, 741 A.2d 305 (1999), cert. denied, 530 U.S. 1214, 120 S.Ct. 2217, 147 L.Ed.2d 249 (2000); Bazzano v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV-98-0584611-S (November 18, 1999, Peck, J.); Peters v. Greenwich, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-95-0147192-S (January 2, 2001, D’Andrea, J.) ; Blue v. Carbonaro, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-14-6015705-S (May 11, 2015, Iannoti, J).
Most recently, in Blue, the plaintiff brought claims against the defendants for violation of his due process rights under article first, § 8, of the Connecticut Constitution, in connection with an investigation and punishment in the context of his job as a wrestling coach. The court noted that in the previous cases where Connecticut courts had declined to recognize a private cause of action arising out of article first, § 8, the interest being invaded was an interest in the use and value of land, and the availability of adequate alternative remedies had been demonstrated. See id. The court reasoned that there were similar compelling factors against recognizing a freestanding constitutional remedy in the employment context- namely, that the plaintiff’s own complaint demonstrated that there were substantial existing remedies capable of compensating many of his injuries, in addition to equitable relief. See id. The court also cited Kelley, reasoning that the concerns of the Kelley court about the cost to towns of allowing disappointed zoning applicants to bring constitutional claims " holds equal, if not greater, weight here, when any purported due process violation in the employment context could give rise to damages for an asserted violation of constitutional rights." Id.
Likewise, in ATC Partnership v. Windham, the court declined to find a freestanding remedy under article first, § 8, declining to apply Binette in part because " [t]he plaintiff’s complaint does not purport to state any claim for an unconstitutional search and seizure under article first, § § 7 and 9, of the state constitution. All that the plaintiff alleges is that, pursuant to an alias tax warrant for delinquent property taxes, the validity of which the plaintiff disputes, the defendants posted police officials at the plaintiff’s business complex in order to preclude the plaintiff from having access to its property. That allegation is a far cry from the alleged egregious police misconduct that we held to be actionable in Binette . A municipality is not subject to constitutional reproach for a violation of the right to substantive due process simply because a taxpayer disputes the validity of the municipality’s recourse to statutorily authorized mechanisms for the collection of local taxes." ATC Partnership v. Windham, supra, 251 Conn. 615.
(iii) Section 20
Likewise, Connecticut courts have unanimously declined to recognize a private cause of action under article first, § 20, of the Connecticut Constitution. See Massey v. Branford, Superior Court, judicial district of New Haven, Docket No. X10 CV 04 048778 (March 28, 2006, Munro, J.) (granting motion to strike count that alleged violation of Article first, § 20, because the provision does not provide a direct cause of action for damages); Wylie v. West Haven, Superior Court, judicial district of New Haven, Docket No. CV06 5006403 (April 21, 2010, Keegan, J.) (granting motion for summary judgment in part because " [d]ecisions of the Superior Court have declined to recognize a private right of action under Article first, § 20"); Marshall v. Middlefield, United States District Court, Docket No. 3:10-CV-1009 (JCH) (D.Conn. February 23, 2012) (granting summary judgment in part because " [t]he court finds no cases in which a Connecticut court has recognized a private right of action for money damages under either section four or twenty and multiple cases in which courts have expressly declined to recognize such claims"); Monger v. Connecticut Department of Transportation, United States District Court, Docket No. 3:17-CV-00205 (JCH) (D.Conn. September 11, 2017) (declining jurisdiction over claim because " the Connecticut Supreme Court has not recognized a private cause of action under Section 20 ... Several Connecticut Superior Courts have considered the issue and refused to do so").
(C) Section 1983 Claim Alleged in Count II
To the extent the plaintiff attempts to state a claim under 42 U.S.C. § 1983, as alleged briefly in count 2, this claim also fails on the basis of sovereign immunity.
" 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 ... This rule also extends to state officers sued in their official capacities." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 301.
The plaintiff made clear in his memorandum in opposition, page 9: " All of the claims against the individually named Defendants in the Verified Complaint are claims against the said Defendants in their official capacities, and not in their individual capacities." (Emphasis original.)
(2) Counts III, IV, VII And IX
The plaintiff’s third, fourth, seventh, and ninth counts purport to state causes of action for civil conspiracy, negligence, violation of Conn. Gen. Stat. § 46a-80, and negligent infliction of emotional distress, respectively, against all of the defendants. The defendants seek dismissal of these counts on the grounds of sovereign immunity. The plaintiff claims that he can circumvent sovereign immunity because he is requesting declaratory and injunctive relief, and the state officers acted in excess of their statutory authority.
For the reasons set forth above, the plaintiff is not entitled to monetary relief without claims commissioner approval, and he has failed to show that he is entitled to an exception from sovereign immunity on either of the two common-law exceptions on his requests for declaratory and injunctive relief.
As discussed above, the court lacks subject matter jurisdiction as to the challenged counts. Under these circumstances, the court need not consider the parties’ other arguments.
CONCLUSION
For the reasons stated above, the motion to dismiss Counts I, II, III, IV, VII, and IX is granted. It is so ordered.