Opinion
No. CV 07 4026496S
July 6, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#154)
FACTS
The plaintiff, Michael Braham, commenced this administrative appeal by way of an "Administrative Appeal and Complaint" (original complaint), which was served on the defendants, Richard Newbould, Catherine Durato, Richard Bush and Valerie Boykins, on June 11, 2007, and filed with the court on June 25, 2007. Pursuant to General Statutes § 4-183 and Practice Book § 14-5 et seq., the plaintiff appeals a decision of the department of correction. In the original complaint, the plaintiff alleges the following relevant facts. The plaintiff is a sentenced inmate subject to assessment for costs of incarceration pursuant to General Statutes § 18-85a. On April 5, 2006, Boykins, a registered nurse, had the plaintiff sign an inmate fees form, which authorized a three dollar deduction from his inmate account for an eye examination during which he was prescribed eyeglasses. On May 12, 2006, Boykins called the plaintiff to pick up the prescribed eyeglasses and requested that he sign another inmate fees form to authorize the deduction of an additional three dollars. The plaintiff refused to sign the additional form and explained that when he had been prescribed eyeglasses in the past, he had been required to pay only a single three dollar fee. On May 15, 2006, the plaintiff filed a grievance related to this issue. The grievance was rejected by Durato, the head registered nurse, who stated that the plaintiff had been correctly charged. The plaintiff then appealed Durato's decision within the department of correction, and that appeal was rejected also.
"UConn Correctional Managed Health Care" and "Connecticut Department of Correction" appear following the names of the four defendants in the caption of the plaintiff's original complaint. Nevertheless, these entities do not appear on the summons, nor is there any indication that they were served with process. The plaintiff identifies "UConn Correctional Managed Health Care" in the original complaint as an agent of the department of correction.
In the original complaint, the plaintiff claims that the dispute over the fees is the result of the defendants' misinterpretation of the department of correction's administrative directive number 3.12 as well as § 18-85a-3 of the Regulations of Connecticut State Agencies. He "requests that the UConn Correctional Managed Health Care, the department of correction and their employees be ordered to correctly interpret . . . § 18-85a-3 and all other applicable state law" and "ordered to correct the ambiguities of Administrative Directive 3.12."
On January 15, 2010, the plaintiff filed a request for leave to amend his complaint and an amended complaint. The defendants did not object to the amendment, and the amended complaint, therefore, is deemed to have been filed by consent of the adverse parties, pursuant to Practice Book § 10-60(a)(3). Like the original complaint, the amended complaint consists of a single count and is brought pursuant to General Statutes § 4-183 and Practice Book § 14-5 et seq. In addition to the allegations set forth in the original complaint, the plaintiff in the amended complaint for the first time sets forth claims pursuant to 42 U.S.C. § 1983 and state tort law. Specifically, the plaintiff alleges that the defendant's acts and omissions based on their misinterpretation of the administrative directive constituted medical malpractice, negligence, coercion and extortion as well as cruel and unusual punishment and deliberate indifference to the plaintiff's serious medical needs under the eighth amendment of the United States constitution. Similarly, he alleges that the unfavorable adjudications of his grievances constituted medical malpractice, negligence, coercion, extortion and a violation of due process under the fourteenth amendment of the United States constitution. The plaintiff requests injunctive relief, declaratory relief, compensatory damages and punitive damages.
The plaintiff also sets forth allegations in both his original and amended complaint regarding a dental procedure for which he allegedly was overcharged. At oral argument, the plaintiff agreed to withdraw all claims related to the dental work. Therefore, those allegations are not addressed in this memorandum.
On September 27, 2010, the defendants filed a motion to dismiss and a memorandum of law in support of the motion to dismiss. On November 9, 2010, the plaintiff filed a "motion in opposition" to the motion to dismiss and a memorandum of law in support thereof. The court heard oral argument at short calendar on this matter on March 14, 2011.
At oral argument, the plaintiff conceded that he has since paid the disputed three dollar fee and has obtained his eyeglasses.
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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "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). "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." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
The defendants argue that the court lacks subject matter jurisdiction because the plaintiff's complaint is not a valid administrative appeal, the doctrine of sovereign immunity bars the claims brought against the defendants in their official capacities, the plaintiff has failed to exhaust his administrative remedies because he has not received permission from the claims commissioner to sue the state for damages, the doctrine of statutory immunity bars the claims brought against the defendants in their individual capacities, the plaintiff's allegations do not constitute a colorable civil rights claim, and the plaintiff's complaint does not allege any physical injury as required by 42 U.S.C. § 1997e(e).
The plaintiff counters that the doctrine of sovereign immunity does not apply to claims brought against the defendants in their individual capacities and that the requirement of physical injury does not apply to claims seeking injunctive or declaratory relief or claims for nominal or punitive damages. Also, the plaintiff argues that sovereign immunity does not apply to the plaintiff's declaratory judgment action because the defendants acted in excess of their statutory authority and beyond the scope of their employment by withholding the eyeglasses from the plaintiff and by failing to sign the inmate fees form for him. Also, the plaintiff argues that Durato, Bush and Newbould acted in a wanton, reckless and malicious manner by affirming Boykins' decision to withhold his eyeglasses. The plaintiff further argues that if the court finds that he has not sufficiently alleged the elements to proceed under § 1983 and state law, it should grant him leave to amend the complaint.
I
As a threshold matter, the court must determine whether the original complaint or the amended complaint is the operative pleading for purposes of the motion to dismiss. Although, as previously stated, the defendants did not object to the filing of the amended complaint, the motion to dismiss raises issues that implicate the court's subject matter jurisdiction over the original complaint. "It is an acknowledged principle of . . . every court in the world, that not only the decisions, but everything done under the judicial process of courts, not having jurisdiction, are, ipso facto, void." (Internal quotation marks omitted.) Marshall v. Clark, 170 Conn. 199, 205, 365 A.2d 1202 (1976). This principle raises the possibility that, if the court in the present case lacked jurisdiction over the original complaint, the plaintiff's attempt to amend the complaint was void.
Typically, such questions arise when a plaintiff files a request to amend its complaint after a defendant has filed a motion to dismiss. This was the situation presented in Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 680 A.2d 1321 (1996). In that case, after the third-party defendant moved to dismiss the third-party complaint on the ground that the court lacked subject matter jurisdiction, the third-party plaintiff moved to amend the complaint. Id., 96-97. The trial court, in denying the motion to dismiss, considered both the original and amended third-party complaints. Id., 97. On appeal, the Supreme Court stated: "Regardless . . . of the substantive similarity between [the] two third party complaints, it was nonetheless inappropriate for the trial court to consider [the] amended third party complaint, rather than [the] initial complaint, when acting on the . . . motion to dismiss for lack of subject matter jurisdiction . . . It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court . . . Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction . . . The point has been frequently made . . ."
"Consequently, when the [third party defendant] moved to dismiss [the] initial third party complaint because of a lack of subject matter jurisdiction, the trial court was obligated to construe that complaint in the manner most favorable to [the third party plaintiff] and to rule upon the [motion to dismiss] before considering [the] motion to amend . . . If the [motion to dismiss] had been granted, as we are persuaded it should have been, the trial court would have been without jurisdiction to allow [the third party plaintiff] to amend its pleadings." (Citations omitted; internal quotation marks omitted.) Id., 99-100.
The present case is unusual in that the motion to dismiss was filed subsequent to the plaintiff's request for leave to amend and, furthermore, the defendant did not object to the request. Research has provided only one case that is procedurally analogous, in which a plaintiff filed a request to amend its complaint that was not objected to and the defendant subsequently filed a motion to dismiss. In Cadle Co. v. Henzy, Superior Court, judicial district of Middlesex, Docket No. CV 99 0090160 (July 9, 2001, Arena, J.) ( 30 Conn. L. Rptr. 208), the court held that, under those circumstances, if it lacked jurisdiction over the original complaint, it could not consider the amended complaint. Id., 209. The court stated that "[a]lthough, by not objecting, the defendants consented to the filing of the amended complaint, [s]ubject matter jurisdiction . . . cannot be created through consent or waiver." (Internal quotation marks omitted.) Id., 209; cf. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86 n. 3, 495 A.2d 1063 (1985) (stating in context of appeal to Supreme Court that "a jurisdictional defect renders the appeal void ab initio and is, therefore, not waivable").
The result would be different if the plaintiff, rather than requesting to amend its complaint, had amended it as of right within thirty days of the return date as permitted by Practice Book § 10-59 and General Statutes § 52-128. "In Sheehan v. Zoning Commission, 173 Conn. 408, 378 A.2d 519 (1977), our Supreme Court reversed the judgment of the trial court dismissing the plaintiff's complaint on jurisdictional grounds where the plaintiff had filed an amended complaint within the prescribed statutory thirty days. The defendant had argued that once its motion to erase (now a motion to dismiss) had been filed with the trial court, the court correctly disposed of the question of jurisdiction before any motion or pleading of the plaintiffs could be entertained. Id., 412-13. In reversing the judgment of the trial court, our Supreme Court explained, however, that `there was no "motion or pleading" to "be entertained" by the court . . . because the amendment was as of right under § 52-128 and Practice Book § 131 [now § 10-59] and took effect ab initio.' Sheehan v. Zoning Commission, supra, 413." Dauti v. Stop Shop Supermarket Co., 90 Conn.App. 626, 639-40, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005).
The distinction between amendments sought by request of the amending party and amendments taken as of right is reinforced in Dauti v. Stop Shop Supermarket Co., supra, 90 Conn.App. 626. In that case, the court stated: "In Federal Deposit Ins. Corp. [v. Peabody, N.E., Inc., supra, 239 Conn. 93] . . . the defendant moved to dismiss the complaint for lack of subject matter jurisdiction and the plaintiff then moved to amend the complaint. Id., 96-97. Our Supreme Court held that before the trial court could grant the plaintiff's motion to amend, it had to consider the issue of subject matter jurisdiction. Id., 99. In the case at hand, however, the plaintiffs did not move to amend their complaint; rather, they submitted an amended complaint as of right. See Sheehan v. Zoning Commission, supra, 173 Conn. 412-13." (Emphasis in original.) Dauti v. Stop Shop Supermarket Co., supra, 640.
In Dauti, "[the defendant] filed a motion to dismiss the entire complaint on the ground that the court lacked subject matter jurisdiction . . . [T]he plaintiffs filed an amended complaint captioned `Amended complaint as of right pursuant to Connecticut Practice Book Section 10-59.' This amended complaint was filed well within the statutory thirty days of the return date. In accordance with General Statutes § 52-128 and Practice Book § 10-59, the amendment was `as of right' and took effect ab initio." Id. Consequently, the Appellate Court concluded that the amended complaint was the operative complaint. Id., 641.
In the present case, any jurisdictional defect was not cured ab initio because the plaintiff's purported amendment was not filed as of right within thirty days of the return date pursuant to General Statutes § 52-128 and Practice Book § 10-59. Rather, the plaintiff, more than two years after the return date, sought to amend the complaint by request under § 10-60(a)(3). As the court concluded in Cadle Co. v. Henzy, supra, 30 Conn. L. Rptr. 208, although the defendant did not object to the amendment, subject matter jurisdiction cannot be conferred on the court by consent or waiver. Should the court in the present matter determine that it lacked subject matter jurisdiction over the plaintiff's original complaint, therefore, it would follow that the plaintiff's attempt to amend the complaint was ineffective and void. Accordingly, the court must initially consider the motion to dismiss as it applies to the original complaint without reference to the amended complaint.
II
The defendants argue in their motion to dismiss and in their memorandum of law that the plaintiff's complaint is not a valid administrative appeal because the decision of the department of correction at issue was not made in a contested case as required by General Statutes § 4-166(2) and (3). The plaintiff provides no response to this argument.
"Judicial review of an administrative decision is governed by General Statutes § 4-183(a) of the UAPA . . ." Lewis v. Gaming Policy Board, 224 Conn. 693, 700, 620 A.2d 780 (1993). "The UAPA grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances." Id., 699-700. "It is well settled that appeals to courts from administrative officers or boards exist only under statutory authority and that unless a statute provides for such appeals, the courts are without jurisdiction to hear them." (Internal quotation marks omitted.) Hefti v. Commission on Human Rights Opportunities, 61 Conn.App. 270, 273, 763 A.2d 688, cert. denied, CT Page 14803 255 Conn. 948, 769 A.2d 62 (2001).
General Statutes § 4-183(a) provides in relevant part: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court . . ." General Statutes § 4-166(3)(A) defines "final decision" as "the agency determination in a contested case . . ." (Emphasis added.) Section 4-166(2) in turn defines "contested case" as "a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by state statute or regulation to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176, hearings referred to in section 4-168 or hearings conducted by the Department of Correction or the Board of Pardons and Paroles . . ."
"Not every matter or issue determined by an agency qualifies for contested case status . . . [E]ven in a case where a hearing is in fact held, in order to constitute a contested case, a party to that hearing must have enjoyed a statutory [or regulatory] right to have his legal rights, duties or privileges determined by that agency holding the hearing." (Internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept. of Public Works, 282 Conn. 764, 771-72, 924 A.2d 846 (2007). "If the plaintiff's rights or privileges are not statutorily required to be determined by the agency, a contested case does not exist and a plaintiff would have no right to appeal pursuant to § 4-183(a)." (Internal quotation marks omitted.) Francis v. Chevair, 99 Conn.App. 789, 792-93, 916 A.2d 86, cert. denied, 283 Conn. 901, 926 A.2d 669 (2007). "[C]ontested case status does not depend on whether a hearing has been held . . . The significant fact from a legal standpoint is whether a hearing is . . . required." (Citations omitted.) Miller's Pond Co., LLC v. Rocque, 71 Conn.App. 395, 406, 802 A.2d 184 (2002), aff'd, 263 Conn. 692, 822 A.2d 238 (2003).
General Statutes § 18-85a(a) provides that: "The Commissioner of Correction shall adopt regulations, in accordance with the provisions of chapter 54, concerning the assessment of inmates of correctional institutions or facilities for the costs of their incarceration." Chapter 54 of the General Statutes is entitled "Uniform Administrative Procedure Act," and sets forth the procedures by which administrative appeals are to proceed. Section 18-85a-3 of the Regulations of Connecticut State Agencies, which corresponds to General Statutes § 18-85a, sets forth the costs of inmate incarceration, but does not include any provision for an administrative hearing within the department of correction or appeals to the Superior Court from decisions of the department of correction for inmates to utilize to contest the costs of their incarceration.
Research has provided the court with no authority that provides an inmate with a statutory or regulatory procedural right to a hearing to have his substantive rights pertaining to the costs of incarceration determined by the department of correction. Without there first existing this statutory or regulatory procedural right to a hearing, there can be no further procedural right to an appeal on this matter because the matter from which the plaintiff appeals is not a final decision in a contested case. Moreover, the plaintiff does not allege that any hearing was in fact held. The plaintiff's attempt to bring this claim before the Superior Court as an administrative appeal under the UAPA must fail because the matter from which the plaintiff appeals is not a decision in a contested case and, therefore, the court is without subject matter jurisdiction to hear this matter. Accordingly, the court grants the defendants' motion to dismiss the plaintiff's original complaint.
III
In addition to the jurisdictional ground discussed above, two other jurisdictional issues will also be addressed sua sponte. "[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009). "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989). "There is no absolute right of appeal to the courts from a decision of an administrative agency . . . The UAPA grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." (Internal quotation marks omitted.) Pine v. Dept. of Public Health, 100 Conn.App. 175, 180, 917 A.2d 590 (2007). Accordingly, as the issues of timeliness and service of process of appeals brought pursuant to § 4-183 implicate the court's subject matter jurisdiction over the appeal, and, because the statutory requirements relating to these two issues were not satisfied in this case, the court will address these issues.
A
First, the appeal should be dismissed for the additional reason that it was neither commenced nor filed within the time period prescribed by statute. "[T]he plain language of § 4-183(c) . . . compels the conclusion that both the filing and the service of the appeal must be accomplished within the forty-five day period . . . The conclusion that § 4-183(c) requires both the filing and the service of the appeal within the forty-five day period is buttressed by its legislative history . . . [A] failure to meet the time limitation remains a subject matter jurisdictional defect." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 181.
In the present case, the documentation attached to the plaintiff's original complaint indicates that the last action of the department of correction occurred on April 10, 2007. The marshal's return is dated June 11, 2007, and it indicates that service was completed for each defendant on that date. The date stamp from the clerk's office indicates that the summons was filed on June 25, 2007. Pursuant to § 4-183(c), the plaintiff was required to complete service upon the defendants and file the appeal within forty-five days. Process was served on June 11, 2007, beyond the forty-five-day deadline to effect service, which demonstrates that the plaintiff did not comply with the requirements of § 4-183(c) for service of an administrative appeal. The date on which the plaintiff filed the summons, June 25, 2007, is also beyond the forty-five-day deadline and demonstrates that the plaintiff did not comply with the requirements of § 4-183(c) for filing an administrative appeal. Either of these reasons, independently, would demonstrate that the plaintiff failed to comply with § 4-183(c) and, therefore, would deprive the court of subject matter jurisdiction over this matter. For both of these reasons, the plaintiff failed to comply with the requirements of § 4-183(c) and the court lacks subject matter jurisdiction over this matter.
Specifically, page A14 attached to the plaintiff's original complaint is an "Inmate Grievance Form B, Levels 2 and 3," which indicates a disposition of "denied" on the "Level 2 Review" of the plaintiff's grievance on April 10, 2007.
B
Second, the appeal should also be dismissed because the agency that rendered the decision from which the plaintiff appeals was not served with process. General Statutes § 4-183(c) provides in relevant part that "a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford . . ." In the present case, neither the summons form nor the marshal's return indicate that the agency that rendered the decisions at issue was named as a party or served with a copy of the appeal as required by § 4-183(c). Although service was made on the individual defendants at the office of the attorney general, service was not made on the agency.
The Appellate Court considered a similar issue in Redding v. Connecticut Siting Council, 45 Conn.App. 620, 697 A.2d 698, cert. denied, 243 Conn. 920, 701 A.2d 343 (1997). In that case, the court considered whether service upon an agency other than the defendant at the office of the attorney general is equivalent to service upon the defendant agency and concluded that it is not. Id., 623. The court explained: "This is not the same as a case in which service was made on the attorney general's office generally, and it was left to the attorney general to make sure that the proper agency received notice of the appeal. Here, the petition was addressed to the department of public safety, and the assistant attorney general who had represented the department in the agency matter was specifically named. Nowhere was the siting council itself, or the assistant attorney general who had represented it, mentioned as the recipient of service of process. When two agencies are to be served with process, serving only one does not constitute proper service as to the other. Two copies needed to be served here. Because there was no service on the siting council, the trial court lacked subject matter jurisdiction." Id. The court further explained that "the plaintiff failed to serve the siting council, the agency that rendered the final decision. Section 4-183(c) mandates that the administrative appeal cannot be brought at all if the party fails to make such service . . . [T]he lack of service of process in an administrative appeal is so fundamental to the existence of the action itself that the failure of subject matter jurisdiction cannot be cured. We conclude that . . . the failure to comply with the statutory provisions of § 4-183(c) makes dismissal mandatory." (Citation omitted.) Id., 625.
As in Redding, the agency that rendered the decision at issue in the present case was not served with a copy of the appeal as mandated by § 4-183(c), although the defendants named in the summons form were individually served at the office of the attorney general. Accordingly, because there was no service on the agency that rendered the decision at issue in the present case, the court lacks subject matter jurisdiction over the appeal for this reason as well.
CONCLUSION
For all of the foregoing reasons, the court lacks subject matter jurisdiction over the plaintiff's original complaint. Furthermore, as stated in part I of this memorandum, the absence of jurisdiction over the original complaint renders the plaintiff's attempt to amend the complaint ineffective. Accordingly, the court need not address, and indeed lacks jurisdiction to address, the additional claims set forth in the amended complaint and the defendant's arguments addressed to those claims. Because the court lacks subject matter jurisdiction over the plaintiff's administrative appeal, the defendants' motion to dismiss is granted.
Even if the court could consider the amended complaint, the initial defects in the administrative appeal would deprive the court of subject matter jurisdiction and require dismissal. The addition of other claims to an administrative appeal does not change the fundamental nature of the case and the need to satisfy the jurisdictional statutory prerequisites for bringing the appeal. See Sanko-Lowry v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 03 0825381, n. 2 (November 17, 2003, Berger, J.) ("Notwithstanding the addition of the equitable relief counts, this is an appeal of a zoning action of the town of West Hartford. The addition of other counts with other labels does not change the fundamental nature of this case and the requirement of the plaintiff to prove aggrievement").