Opinion
CV195044984S
08-23-2019
Torrey TOWNSEND v. STATE of Connecticut et al.
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
The plaintiff, Torrey Townsend, has brought this action against the State of Connecticut (state), the Department of Correction (DOC), the Department of Public Health (DPH), Raul Pino, the DPH Commissioner, Diana Aye, a DPH employee, the Department of Emergency Services and Public Protection (DESPP), Dora Schriro, the former DESPP Commissioner, the City of New Haven, Anthony Campbell, and the Connecticut Commission on Human Rights and Opportunities (CHRO). This action is brought for alleged discrimination and violations of the plaintiff’s rights.
The plaintiff’s complaint is quite lengthy and at times unintelligible. The plaintiff’s complaint can be fairly construed as alleging discrimination against all of the defendants, with these claims brought pursuant to General Statutes § 46a-100. The plaintiff further alleges violations of her equal rights and asserts claims pursuant to 42 U.S.C. § 1983 against Pino, Aye, and Schriro in their individual capacities. Finally, the plaintiff alleges that all of the defendants violated General Statutes § 42-471, which deals with the protection of social security numbers and personal information. Both defendants filed motions to dismiss for lack of personal and subject matter jurisdiction on March 19, 2019. The plaintiff filed objections to these motions on April 22 and 26, 2019. The motions were argued at short calendar on May 6, 2019, to which the plaintiff failed to appear.
DISCUSSION
"[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).
I.
The defendants argue that to the extent the plaintiff purports to sue Pino, Aye, and Schriro in their individual capacities, the court lacks personal jurisdiction over them because they were not served pursuant to General Statutes § 52-57(a).
"[T]he Superior Court ... may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court’s exercise of personal jurisdiction." (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101-02, 733 A.2d 809 (1999). "[W]hen a particular method of serving process is set forth by statute, that method must be followed ... Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ... The jurisdiction that is found lacking ... is jurisdiction over the person ..." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). "Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ... Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Id., 401. To properly sue a state defendant in their individual capacity, a plaintiff must serve the defendant pursuant to § 52-57(a) by leaving a copy of the process at the defendant’s usual place of abode. Harnage v. Lightner, 163 Conn.App. 337, 344-47, 137 A.3d 10 (2016), aff’d, 328 Conn. 248, 179 A.3d 212 (2018).
The return of service establishes that service was made on the attorney general at the Office of the Attorney General for all of the state defendants, including the individual defendants, pursuant to General Statutes § 52-64(a). To the extent that the plaintiff’s complaint can be construed as alleging claims against Pino, Aye, and Schriro in their individual capacities, they were not served properly. Accordingly, the court lacks personal jurisdiction and the claims against them must be dismissed.
II.
The plaintiff brings claims of discrimination in accordance with § 46a-100 and the releases of jurisdiction she received from the CHRO. Section 46a-100 provides: "Any person who has filed a complaint with the commission in accordance with section 46a-82 and who has obtained a release of jurisdiction in accordance with section 46a-83 or 46a-101, may bring an action in the superior court ..." This section "expressly waives sovereign immunity and creates a cause of action in the Superior Court for claims ... over which the commission has released jurisdiction." Lyon v. Jones, 291 Conn. 384, 400 (2009). The plaintiff received a release of jurisdiction as to Schriro, the DOC, Aye, and Pino and each release is attached to the plaintiff’s complaint. The defendants argue, however, that the court lacks subject matter jurisdiction because the plaintiff did not bring this action within ninety days of receiving the releases as required by § 46a-101(e).
Section 46a-101(e) provides: "Any action brought by the complainant in accordance with section 46a-100 shall be brought not later than ninety days after the date of the receipt of the release from the commission." Our trial courts are currently split as to whether this time limitation is mandatory or jurisdictional and our appellate courts have not affirmatively ruled on this issue. Our Appellate Court has instead upheld dismissals of complaints for failure to comply with § 46a-101(e) where, regardless of whether the time limit was jurisdictional, the plaintiff’s claims were untimely and the plaintiff made no argument as to whether § 46a-101(e) was mandatory or jurisdictional and did not raise any claim of waiver, consent or equitable tolling. See Sempey v. Stamford Hospital, 180 Conn.App. 605, 616, 184 A.3d 761 (2018) ("[I]f a time requirement is deemed to be mandatory, it must be complied with, absent such factors as consent, waiver or equitable tolling. Thus a complaint that is not filed within the mandatory time requirement is dismissible unless waiver, consent or some other compelling equitable tolling doctrine applies" [internal quotation marks omitted] ); see also Mosby v. Board of Education, 187 Conn.App. 771, 775 n.5, 203 A.3d 694 (2019).
In the present case, the plaintiff received the Schriro release on August 13, 2018, the DOC release on August 15, 2018, and the releases as to Pino and Aye on August 30, 2018. The plaintiff, therefore, was required to commence an action against Schriro by November 12, 2018; against the DOC by November 13, 2018; and against Pino and Aye by November 28, 2018. The return of service indicates that the defendants were served on January 16, 2019, when a copy of the process was left at the Attorney General’s office. The action was thus commenced on January 16, 2019. See Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004) ("an action is commenced not when the writ is returned but when it is served upon the defendant" [internal quotation marks omitted] ). The plaintiff’s claims against the DOC, Pino, Aye, and Schriro are, therefore, untimely.
The plaintiff has made no argument as to whether the time limitation in 46a-101(e) is mandatory or jurisdictional nor has she made any claim of waiver, consent or equitable tolling. Thus, regardless of whether the time limit is jurisdictional, the plaintiff’s complaint is subject to dismissal because the action was not commenced within ninety days of receiving the releases of jurisdiction. See Mosby v. Board of Education, supra, 187 Conn.App. 775 n.5 ("[b]ecause the plaintiff presents no argument as to whether the time limit of § 46a-101(e) is either mandatory or jurisdictional and presents no claim of waiver, consent, or equitable tolling, we conclude that the court properly dismissed ... the [plaintiff’s] claims regardless of whether the time limit is jurisdictional" [internal quotation marks omitted] ).
The plaintiff does argue that the calculation of the ninety days should not include weekends and holidays. According to her calculations, she had until December 21 and 27, 2018, and January 14, 2019, to bring her claims. She therefore argues that her claims are timely because the action was commenced on December 17, 2018. Although the plaintiff’s complaint is dated December 17, 2018, the record indicates that the defendants were not served on December 17, 2018. Thus, even under the plaintiff’s ninety-day calculation, her claims are untimely. Moreover, the plaintiff’s calculation is erroneous because § 46a-101(c) makes no reference to business days and, thus, is measured in calendar days. See Finan v. Finan, 107 Conn.App. 369, 375, 945 A.2d 476 (2008) (concluding that five-day period in General Statutes § 25-56 measured in calendar days not business days, noting that "when our rules of practice measure an applicable time period in business days, they explicitly so provide").
The record makes clear that the defendants were served on January 16, 2019, more than ninety calendar days from the dates the plaintiff received the releases. Consequently, the plaintiff’s claims are untimely and are therefore dismissed.
The defendants argue that the plaintiff’s claims for money damages are barred by sovereign immunity because she has not alleged a statutory waiver of immunity or received permission from the claims commissioner. The state, DOC, and DESPP further argue that to the extent the plaintiff seeks declaratory and/or injunctive relief from the defendant agencies or defendant Schriro in her official capacity, those claims are also barred by sovereign immunity.
"The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law ... Not only have we recognized the state’s immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).
"[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." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 349. "In 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." Id., 351; see also Miller v. Egan, 265 Conn. 301, 317, 828 A.2d 549 (2003).
A. Money Damages
In the present case, the plaintiff does not allege any statutory waiver of sovereign immunity and apart from the releases of jurisdiction that she received from the CHRO, the plaintiff has not alleged or submitted any evidence that she either sought or received permission from the claims commissioner to sue the CHRO or other defendant agencies for money damages. Accordingly, the plaintiff’s claims for money damages against the defendants are barred by the doctrine of sovereign immunity.
B. Declaratory/Injunctive Relief
"For a claim made pursuant to the second exception, complaining of unconstitutional acts, [the court] require[s] that [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.) Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 350. "For a claim under the third exception, the plaintiffs must do more than allege that the defendants’ conduct was in excess of their statutory authority; they must also allege or otherwise establish facts that reasonably support these allegations." Id.
In the present case, the plaintiff has failed to allege facts to support the applicability of either exception. As to the second exception, the plaintiff alleges that her rights were violated because she was denied a hearing when the DOC revoked her visitation privileges. There is no protected liberty interest in visitation however; see Sosa v. Commissioner of Correction, 175 Conn.App. 831, 835, 169 A.3d 341 (2017) (inmates do not have a protected liberty interest in visitation; visitation is a privilege, rather than entitlement); and, therefore, her due process rights were not violated by the failure to provide her a hearing. As to the third exception, the plaintiff has failed to allege that the defendants acted in excess of their statutory authority. Indeed, the plaintiff mainly alleges failures to act on the part of the defendants, such as failures to provide her a hearing, to release jurisdiction, or provide her records. Thus, the third exception is not met.
As neither exception to sovereign immunity is met, the plaintiff’s claims for declaratory and/or injunctive relief are barred by sovereign immunity.
CONCLUSION
For the foregoing reasons, the defendants’ motions to dismiss are granted.