Opinion
CV185021248S
07-30-2018
Anthony W. ROGERS v. Michael A. COLOMBO et al.
UNPUBLISHED OPINION
PETER EMMETT WIESE, JUDGE
I
Procedural History
In a complaint filed on December 13, 2017, the plaintiff, inmate Anthony Rogers, brought a 42 U.S.C. § 1983 claim against the defendant, Attorney Donald Papcsy, alleging, among other things, that the defendant violated his constitutional right to due process, that the defendant knew or should have known of the forfeiture of the plaintiff’s money without consent or conviction, and failure to pursue the plaintiff’s motions filed for return of the seized money. In 2005, co-defendants Attorney Michael Colombo and State’s Attorney Anne Holley entered into an asset forfeiture stipulation amounting to $14,376 of the plaintiff’s money after the plaintiff was charged with a drug-related crime. Defendant Papcsy was a partner at the Discala and Papcsy Law Firm and defendant Colombo was an attorney at the Discala and Papcsy Law Firm. Subsequently, on May 23, 2008, defendant Papcsy represented the plaintiff when his drug charges were nolled. It appears that the state dropped the drug charges and the plaintiff was convicted of murder, which carried a longer jail sentence. On March 26, 2018, defendant Papcsy filed a motion to dismiss arguing that he is a private person- not a state actor nor private party acting under color of state law and, therefore, cannot be liable under 42 U.S.C. § 1983. Also, on page four of the plaintiff’s opposition to the defendant’s motion to dismiss filed on April 11, 2018, the plaintiff identifies the defendant as a private person. The defendant further argues that the statute of limitations for this claim has expired pursuant to 42 U.S.C. § 1988 and applicable Connecticut law.
The fact that the defendant was not a state actor under 42 U.S.C. § 1983 is dispositive and the court need not consider the statute of limitations argument raised by the defendant.
II
DISCUSSION
A. MOTION TO DISMISS
"[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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
B. 42 U.S.C. § 1983 ARGUMENT
"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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. § 1983.
"In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law. Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action ... A private actor acts under color of [state] law when the private actor is a willful participant in joint activity with the state or its agents ... A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity." (Citations omitted; internal quotation marks omitted.) Wright v. Dzurenda, Superior Court, judicial district of New Haven, Docket No. CV-17-5038715 (November 24, 2017, Vitale, J.) (65 Conn.L.Rptr. 557, 559).
In this case, the defendant is a private attorney who represented the plaintiff in 2008 when the state nolled drug charges against him. The court finds that the plaintiff has failed to allege any facts indicating that the defendant acted as a state actor during the time of the legal representation. In his motion to dismiss, the defendant agrees that Attorney Papcsy was a private person but nevertheless argues that he is an appropriate subject of a § 1983 claim. The court finds that the fact that the defendant interacted with a State’s Attorney on behalf of a client who faced criminal charges does not rise to the level of state action needed to be liable under § 1983 and, therefore, deprives this court of subject matter jurisdiction over the defendant.
III
Conclusion
The motion to dismiss is granted for the reasons stated. So ordered.