Opinion
No. CV 04-4004166
March 27, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 110)
On December 13, 2004, the plaintiff, David Campbell, filed an amended complaint pro se against the defendants, Scott Mawhinney and Mr. Breedlove. Before this court is the defendants' motion to dismiss the amended complaint on the grounds of sovereign and statutory immunity.
At the time of the incident of which the plaintiff complains, the defendants were employed as counselors, and the plaintiff was an inmate, at MacDougall-Walker Correctional Institution in Suffield. In June 2004, Campbell requested Counselor Mawhinney, a registered notary, to notarize a court form so that the plaintiff could commence a civil action against correctional staff at a different facility for smoking cigarettes in a non-smoking area and exposing him to the harmful effects of second-hand smoke.
It is unclear what Campbell requested Mawhinney to notarize. In the amended complaint the plaintiff states that Mawhinney refused to notarize the complaint. In his memorandum of law in opposition to the defendant's motion to dismiss, Campbell claims it was a waiver of fees and costs form.
Campbell alleges that when he gave Mawhinney the form, Mawhinney responded by returning the form to Campbell and stated, "I do not notarize complaint[s] against staff." Campbell then wrote a request to the Unit Manager, Captain Burke, complaining of Mawhinney's refusal to notarize the document. Burke passed the request to Mawhinney, to explain in writing why he did not notarize the form. Mawhinney responded to that request by explaining he did want to notarize the form because "it was hand written in pen and not typed."
He also stated that he "ha[d] discretion as to what forms to notarize." Campbell then filed a grievance with Breedlove, the grievance coordinator, complaining of Mawhinney's actions. When the plaintiff received no reply from Breedlove after two weeks, Campbell again sent a request to Captain Burke, complaining of Breedlove's long delay. Approximately three and a half weeks after filing the complaint with Breedlove, the grievance coordinator met with the plaintiff and told him that the plaintiff's file could not be located. He recommended that Campbell file the complaint again.
Campbell claims that grievance boxes are "the direct responsibility of the grievance coordinator Mr. Breedlove," and he is "the only person with a key to open and retrieve grievance forms from the box." He claims the defendants conspired together to dispose of the grievance complaint so as to hinder the plaintiff's grievance process as provided by the rules of the Department of Corrections. In doing so, Campbell claims the defendants denied him access to the courts.
Plaintiff is suing Mawhinney and Breedlove in both their individual and official capacities. Campbell is seeking punitive and compensatory damages, and argues that Mawhinney violated plaintiff's constitutional and statutory rights by denying him access to the court when the defendant refused to notarize court documents. Campbell is suing Breedlove for refusing to respond to the grievance and causing plaintiff to file his complaint in federal court. Finally, Campbell is suing both defendants for punitive damages for any damage that was done as a result of inhaling second-hand smoke at the facility at which Plaintiff was previously incarcerated.
The defendants have filed a motion to dismiss Campbell's amended complaint because the claims are barred by (1) sovereign immunity; and (2) statutory immunity pursuant to General Statutes § 4-165.
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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005)." [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Id. The same is true for the doctrine of statutory immunity. Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002). "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 . . . [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 doctrine of sovereign immunity protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." (Internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 751, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
"The sovereign immunity enjoyed by the state is not absolute, and our Supreme Court has recognized limited exceptions to the doctrine. These are: (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.) Tuchman v. State, supra, 89 Conn.App. 753.
Here, there is no statute waiving sovereign immunity for Campbell's claims, and the plaintiff has not asked for declaratory or injunctive relief. He asks for monetary damages. The plaintiff has not alleged in his complaint that he has received permission to sue the state from the claims commissioner pursuant to General Statutes § 4-160.
Insofar as the plaintiff is claiming that the defendants were acting in their official capacity in excess of their authority, the claims for money damages against them are dismissed. Miller v. Ego, 265 Conn. 301, 828 A.2d 549 (2003). The exception to the doctrine of sovereign immunity for actions by state officers in excess of their statutory authority applies only to actions seeking declaratory or injunctive relief, not to actions seeking money damages. Id., 314-15.
Insofar as the plaintiff is claiming, under the exception that the defendants violated his constitutional right to access to the courts, our Supreme Court has stated that the allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests. Tuchman v. State, supra, 89 Conn.App. 753-54.
"It is well established that inmates have a constitutionally protected right of access to the courts." Smith v. Armstrong, 986 F.Sup. 40, 46 (D.Conn 1996), citing Bounds v. Smith, 430 U.S. 817, 822-25 (1977). The Supreme Court, however, in Lewis v. Casey, 518 U.S. 343, (1996) clarified what is encompassed in an inmate's right of access to the courts and what constitutes standing to bring a claim for the violation of that right, holding that to show a violation of his right of access to the courts an inmate must allege an actual injury. Lewis v. Casey, 518 U.S. 343. The Plaintiff here was not denied actual access to court, as considered by the court in Lewis. He alleges in his amended complaint that he ultimately filed the action in federal court; thus, his purported injury involves the fee waiver, not actual access.
The plaintiff also alleges that he is suing the defendants in their individual capacities. Such a suit, however, may still be interpreted as being against the State. Miller v. Egan, supra, 265 Conn. 307-08. To determine in what capacity the defendants are being sued, this court must examine the four-factor test set forth in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975). The four factors are whether:
(1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom the relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.
Spring v. Constantino, supra, 168 Conn. 568.
The plaintiff specifically alleges that the defendants are being sued in their individual capacity and he is seeking damages from them individually for, in the case of Mawhinney, the failure to notarize a document, and for, in the case of Mahwhinney and Breedlove, a conspiratorial refusal to process his grievance, both resulting in a denial of access to court. Although the defendants argue that any finding for Campbell will result in state liability, relying on General Statutes § 5-141d, the State, however, will not indemnify any action outside the scope of employment nor will it indemnify for any act or omission that is "wanton, reckless or malicious."
Section 5-141d(a) reads, in part: "The state shall save harmless and indemnify any state officer or employee . . . from financial loss and expense arising out of any claim . . . by reason of his alleged negligence . . . if the officer . . . is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.
Viewing the complaint in a light most favorable to Campbell, Brookridge District Ass'n. v. Planning and Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002), Campbell has asserted an "act of conspiracy" to deprive him open access to the courts. He also alleges Mawhinney refused to notarize Campbell's form, not because of any technical defect or mistake, but because Mawhinney "do[es] not notarize complaint[s] against staff." Such allegations arguably assert claims against the defendants in their individual capacities and as such, the motion to dismiss on grounds of sovereign immunity as to the individual claims is denied.
The defendants claim they are protected by sovereign immunity for actions performed in their official capacities and by the statutory immunity provided by § 4-165 for actions performed in their individual capacities. In Shay v. Rossi, supra, 253 Conn. 162-63, our Supreme Court discussed the relationship between those two doctrines. The court noted that "where a state official is sued in both her official and individual capacities, if sovereign immunity does not apply to the claim against her in her official capacity . . . statutory immunity may then apply to the claim against her in her individual capacity." Id., 162.
The defendants claim that if they are not protected be sovereign immunity, statutory immunity applies to protect them from personal liability. Section § 4-165 provides in relevant part: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment . . ." This court has noted that "[i]n order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must provide, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Tuchman v. State, supra, 89 Conn.App. 764.
A defendant's conduct is wanton, reckless, or malicious, and is not protected by statutory immunity if the conduct "tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Martin v. Brady, 261 Conn. 372, 379, 802 A.2d 814 (2002). The alleged conduct of the defendants — Mawhinney's refusal to notarize Plaintiff's documents and Breedlove's loss and/or untimely processing of Plaintiff's grievance — does not rise to the required level of unreasonable, extreme departure from ordinary care, nor was there a degree of apparent danger. Moreover, the allegations of the defendants' conspiratorial conduct lack sufficient factual underpinnings to support a claim that withstands the bar of statutory immunity. Accordingly, the motion to dismiss the complaint on the ground of statutory immunity is granted.
CONCLUSION
The motion to dismiss the complaint in its entirety is granted because the court lacks subject matter jurisdiction.