Opinion
No. CV 03 0070736
March 30, 2006
MEMORANDUM OF DECISION
This is a declaratory judgment action that arises from a motor vehicle accident. According to the complaint, on July 23, 2001, the plaintiff, Laurie Combs, a department of correction (DOC) employee, was injured while on duty when the DOC vehicle she was operating was involved in an accident with a DOC vehicle that was being driven by another DOC employee. The plaintiff alleges that she was injured due to the negligence of the state of Connecticut (state) through the actions of the other employee.
On May 21, 2002, the plaintiff filed a notice of claim with the office of the claims commissioner pursuant to General Statutes § 4-147, seeking permission to sue the state for damages for the injuries she suffered as a result of the accident. The state filed a motion to dismiss the action on the basis that the plaintiff's claim is a claim "upon which suit is otherwise authorized by law," and thus was not properly before the claims commissioner pursuant to General Statutes § 4-142. The state argued that the plaintiff could bring a direct action pursuant to General Statute § 52-556. The plaintiff opposed the state's motion on the ground that she is prohibited from bringing a direct action because General Statutes § 4-165 provides state employees with immunity from suits by other state employees.
General Statutes § 4-147 provides in relevant part: "Any person wishing to present a claim against the state shall file with the clerk of the Office of the Claims Commissioner a notice of claim . . ."
General Statutes § 4-142 provides in relevant part: "There shall be a Claims Commissioner who shall hear and determine all claims against the state except . . . (2) claims upon which, suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts . . ."
General Statutes § 52-556 provides: "Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury."
General Statutes § 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 portion of the statute was amended by No. 05-79 of the 2005 Public Acts to make its terms gender neutral.) The plaintiff did not allege that her injury was due to recklessness.
On October 4, 2002, the claims commissioner, James R. Smith, granted the state's motion and dismissed the plaintiff's claim. In his memorandum of decision, the claims commissioner explained that pursuant to General Statutes § 4-160, before his office can grant a claimant's application to sue the state, the claimant must meet his or her burden of establishing facts or an issue of law under which the state, if it were a private person, could be liable to the claimant. He reasoned that because a private employer that secures workers' compensation insurance coverage for its employees is not liable for damages for personal injuries sustained by its employees in the course of their employment, the state, which provides its employees with such coverage, could also not be liable for the work-related injuries sustained by its employees. Although the claims commissioner acknowledged the plaintiff's contention that an employee of a private employer that is covered by workers' compensation insurance can sue a fellow employee for "negligent operation of a motor vehicle" under General Statutes § 31-293a, and that § 4-165 denies her the right to do so, nevertheless, he explained, the workers' compensation statutes do not authorize an employee to bring a claim against a private employer. Therefore, the claims commissioner concluded, the state could not be liable to the plaintiff and his office did not have jurisdiction to grant her application for permission to sue the state.
General Statutes § 4-160 provides in relevant part: "(a) When the Claims Commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable." (This portion of the statute was amended by No. 05-170 of the 2005 Public Acts to make its terms gender neutral.)
General Statutes § 31-293a provides in relevant part: "If an employee . . . has a right to benefits or compensation under this chapter on account of injury . . . caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee . . . and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle . . ."
On November 8, 2002, the plaintiff filed a petition with the office of the claims commissioner pursuant to General Statutes § 4-176 in which she asked the claims commissioner for a declaratory ruling as to, among other things, the applicability of General Statutes §§ 4-142(2), 4-160, 4-165, 31-293 and 52-556 to her claim. The claims commissioner did not respond to the plaintiff's petition.
General Statutes § 4-176(a) provides in relevant part: "Any person may petition an agency for a declaratory ruling as to . . . the applicability to specified circumstances of a provision of the general statutes . . . or a final decision on a matter within the jurisdiction of the agency."
The plaintiff alleged that these statutes interfere with or impair her legal rights or privileges pertaining to her initial claim against the state. The plaintiff also alleged that the claims commissioner's decision and decision of the Supreme Court in Sullivan v. State, 189 Conn. 550, 457 A.2d 304 (1983), reached different conclusions about the application of these statutes, leaving uncertainty as to her legal rights.
On July 7, 2003, more than 180 days from the date the plaintiff filed her petition, the plaintiff filed the present action against three defendants, the office of the claims commissioner, the claims commissioner and the state. In this action, the plaintiff alleges that she complied with the provisions of General Statutes § 4-176, and that §§ 4-142 (2), 4-160, 4-165, 31-293a and 52-556 interfere with her legal rights and privileges. She seeks a declaratory judgment from this court pursuant to General Statutes § 4-175,, as to the following. The applicability of the claims commissioner's final decision to her claim in light of Sullivan v. State, 189 Conn. 550, 457 A.2d 304 (1983); the claims commissioner's jurisdiction over her claim generally and in light of Sullivan v. State, supra; and the propriety and timeliness of her petition in light of the claims commissioner's failure to comply with General Statutes § 4-176(b).
General Statutes § 4-175 provides in relevant part: "If a provision of the general statutes . . . or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency . . . is deemed to have decided not to issue a declaratory ruling under subsection (i) of said section 4-176, the petitioner may seek in the Superior Court a declaratory judgment as to . . . the applicability of the provision of the general statutes . . . or the final decision in question to specified circumstances . . ."
General Statutes § 4-176(i) provides in relevant part: "If an agency does not issue a declaratory ruling within one hundred eighty days after the filing of a petition therefore . . . the agency shall be deemed to have decided not to issue such ruling."
The claims commissioner filed a motion to dismiss the action in which he argued that the Superior Court lacks subject matter jurisdiction over the complaint, which he characterized as an attempt by the plaintiff to administratively appeal his final decision. He also argued, inter alia, that the plaintiff was not entitled to a declaratory ruling under the statutes that she relied upon in her complaint. The plaintiff opposed the motion, arguing, inter alia, that the Superior Court has jurisdiction to hear the matter, and that she is entitled to bring this action under the relevant statutes.
In December 2004, the court denied the claims commissioner's motion to dismiss. See Combs v. Office of the Claims Commissioner, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0070736 (December 12, 2004, Riley, J.) ( 38 Conn. L. Rptr. 399). The court explained that it has subject matter jurisdiction over the action in that the plaintiff was not attempting to appeal the decision of the claims commissioner, but rather initiated this action "to obtain a declaratory ruling in accordance with § 4-175 . . . The plaintiff is permitted to petition the defendant for a declaratory ruling pursuant to § 4-176 . . ." Combs v. Office of the Claims Commissioner, supra, 38 Conn. L. Rptr. 400. The court determined that the plaintiff's action is appropriate under these statutes in that she alleges that specific provisions of the General Statutes interfere with or impair her legal rights, and because the office of the claims commissioner did not rule on her petition for a declaratory ruling. Id. The court rejected the claims commissioner's argument that other statutes exempt his office from declaratory judgment actions. In the alternative, the court reasoned that the plaintiff could have brought her action pursuant to General Statutes § 52-29 and Practice Book § 17-54. Combs v. Office of the Claims Commissioner, supra, 38 Conn. L. Rptr. 401.
General Statutes § 52-29 provides: "The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment . . . The judges of the Superior Court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section."
Practice Book § 17-54 provides: "The judicial authority will, in cases not herein excepted, render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity; or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future."
On December 29, 2004, the plaintiff filed an amended complaint for a declaratory judgment which is identical to her initial complaint, except that she adds an allegation that she is seeking a declaratory judgment pursuant to General Statutes § 52-29 and Practice Book § 17-54. The claims commissioner filed an answer in which he asserted the following special defenses: the action is barred by sovereign immunity; the declaratory ruling provisions that the plaintiff relies upon do not apply to her action; the plaintiff is not aggrieved; and the plaintiff lacks standing in that her action is moot.
The defendants' motion for summary judgment addresses all of claims commissioner's special defenses, except his defense that the plaintiff is not aggrieved.
Presently before the court are two motions for summary judgment. The defendants filed their motion for summary judgment and memorandum of law on August 8, 2005, and the plaintiff filed a memorandum in opposition thereto on September 1, 2005. The plaintiff filed her motion for summary judgment on August 12, 2005, and the defendants filed a memorandum in opposition thereto on September 2, 2005. In their respective memoranda, the parties agree that no genuine issues of material fact exist as to the plaintiff's amended complaint, and each side asserts that it is entitled to judgment as a matter of law.
DISCUSSION
The court will address the defendants' motion first. The defendants move for summary judgment on the following grounds: (1) this court lacks subject matter jurisdiction over the action in that it is an attempt by the plaintiff to administratively appeal the final decision of the claims commissioner; (2) the remedy provided for in § 4-176 is not available to the plaintiff in that she seeks review of an adjudicative matter which is not appealable under General Statutes § 4-186(c); (3) the remedy provided for in § 4-176 is not available to the plaintiff because the commissioner could not issue a declaratory ruling in response to her petition in that he had already determined that he does not have jurisdiction over her claim; and (4) the plaintiff's action is moot in that the claims commissioner has already determined that he does not have jurisdiction over her claim. The court is required to address the defendants' jurisdictional arguments first because "[o]nce the question of lack of jurisdiction of a court is raised . . . the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
Before addressing these arguments, the court considers the procedural vehicle in which they are raised. "Although subject matter jurisdiction may be challenged at any stage of the proceedings, it has been addressed almost exclusively through a motion to dismiss." Manifold v. Ragaglia, 94 Conn.App. 103, 117, 891 A.2d 106 (2006). "Although a motion to dismiss is certainly the preferred means of challenging the court's subject matter jurisdiction, we know of no authority for the proposition that subject matter jurisdiction can never be challenged through any other procedural vehicle, most importantly by means of a motion for summary judgment." (Emphasis in original.) Id., 119. Nevertheless, as a general rule, when a party uses a motion for summary judgment to challenge the court's subject matter jurisdiction, and the motion is not dependent on evidence and the parties agree that no material issues of fact are in dispute, the court should treat the motion as a motion to dismiss, as that is "the proper procedural vehicle" for disputing the court's subject matter jurisdiction. See Cadle Co. v. D'Addario, 268 Conn. 441, 445 n. 5, 844 A.2d 836 (2004). Accordingly, the court will do so in this case.
"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 . . . 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 . . . 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.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005).
It is noted that the court previously addressed the defendants' first two arguments in its decision denying the claims commissioner's motion to dismiss. See Combs v. Office of the Claims Commissioner, supra, 38 Conn. L. Rptr. 399. As previously explained, in that decision the court reasoned that the case law and statutory provisions that prohibit a claimant from appealing a decision of the claims commissioner do not apply here because that is not what the plaintiff is attempting to do in this action. Rather, she is seeking a declaratory judgment, and, as the court noted, has done so in accordance with the provisions of the applicable statutes, i.e., §§ 4-175 and 4-176. Moreover, the court rejected the claim commissioner's contention that § 4-186 prohibits the plaintiff from bringing a declaratory judgment action. Thus, the court must consider whether the decision on the claims commissioner's motion to dismiss is the law of the case as to these arguments.
"The law of the case is not written in stone but is a flexible principle of many facets . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new and overriding circumstance." (Citations omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). Nevertheless, the Appellate Court has concluded that, "when the [subject matter] jurisdiction of the trial court is implicated, an adjudicator is not bound by the law of the case doctrine, but should consider independently the issue of jurisdiction." Pinchbeck v. Dept. of Public Health, 65 Conn.App. 201, 207-08, 782 A.2d 242, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001). Thus, an independent analysis of the defendants' jurisdictional argument is warranted.
As the defendants note, the Superior Court "does not have jurisdiction over an administrative appeal from the claims commissioner's discretionary denial of authorization to bring an action against the state because [t]he commissioner of claims performs a legislative function [that is] directly reviewable only by the General Assembly." (Emphasis in original; internal quotation marks omitted.) D'Eramo v. Smith, supra, 273 Conn. 618; see also General Statutes §§ 4-164(b) and 4-164a. Nevertheless, the fact that a plaintiff cannot appeal from a decision of the claims commissioner "does not, of course, foreclose other forms of judicial relief in an appropriate case." Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 542, 489 A.2d 363 (1985).
According to the Supreme Court, these statutes "should be read as a clarification of the Superior Court's ongoing lack of jurisdiction to hear appeals from the claims commissioner." Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 541, 489 A.2d 363 (1985).
The court does not agree with the defendants' characterization of the plaintiff's action as an attempt to appeal from the claim commissioner's denial of her request to bring an action against the state. Although certain of the plaintiff's claims ask the court to consider issues that could be raised in an appeal, the nature of the plaintiff's action is one for a declaratory judgment, and the Superior Court has subject matter jurisdiction over actions for declaratory relief pursuant to § 4-175, provided the plaintiff has complied with the prerequisites imposed on such actions. See Connecticut Ass'n. of Boards of Education v. Shedd, 197 Conn. 554, 561, 499 A.2d 797 (1985). Sections 4-175 and 4-176 "set forth the orderly procedure to obtain administrative rulings or interpretations as to any provision of a statute." Connecticut Ass'n. of Boards of Education v. Shedd, supra, 197 Conn. 561.
Section 4-176(a) provides that "[a]ny person may petition an agency . . . for a declaratory ruling as to the . . . applicability to the specified circumstances of a provision of the general statutes or a final decision on a matter within the jurisdiction of the agency . . ." Pursuant to § 4-176(i), "[i]f an agency does not issue a declaratory ruling within one hundred eighty days after the filing of a petition therefor . . . the agency shall be deemed to have decided not to issue such ruling." As clearly provided in § 4-175(a), "[i]f a provision of the general statutes . . . or a final decision, or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency . . . is deemed to have decided not to issue a declaratory ruling under subsection (i) of said section 4-176, the petitioner may seek in the Superior Court a declaratory judgment as to . . . the applicability of the provision of the general statutes . . . or the final decision in question to specified circumstances." Thus, "[o]nce a request [for a declaratory ruling from the agency] has been made, the agency has the obligation to act promptly to issue an appropriate ruling. If the agency fails to act, the plaintiff's may then institute an action seeking declaratory relief." Connecticut Ass'n. of Boards of Education v. Shedd, supra, 197 Conn. 561.
Here, it is undisputed that the plaintiff complied with the prerequisites of the statutes in that she filed a petition for a declaratory ruling with the office of the claims commissioner, the commissioner did not issue a ruling within 180 days thereafter, and the plaintiff then filed this action in which she alleges, inter alia, that specific statutes interfere with or impair her legal rights.
The defendants have not cited to any authority that exempts the office of the claims commissioner, or the commissioner himself, from declaratory judgment actions brought pursuant to § 4-175. Indeed, it is noted that, in General Statutes § 4-186, the legislature decided to exempt the claims commissioner "from the provisions or section 4-176e and sections 4-177 to 4-183 inclusive." This invokes the maxims that "the legislature knows how to use limiting language . . . when it chooses to do so"; Stitzer v. Rinaldi's Restaurant, 211 Conn. 116, 119, 557 A.2d 1256 (1989); and that the courts "cannot, by judicial construction, read into legislation provisions that clearly are not contained therein." Id.
The Supreme Court's decision in D'Eramo v. Smith, supra, 273 Conn. 610, further supports the conclusion that the court does not lack jurisdiction on the grounds raised in the defendants' first two arguments. In D'Eramo, the plaintiff filed a notice of claim with the claims commissioner and then filed an action in the Superior Court in which he asked the court to issue a writ of mandamus ordering the claims commissioner to provide the plaintiff with authorization to bring a medical malpractice action against the state. The claims commissioner filed a motion to dismiss in which he argued, inter alia, that the trial court lacked subject matter jurisdiction over the plaintiff's action pursuant to the doctrine of sovereign immunity. The trial court granted the claims commissioner's motion on different grounds, and the plaintiff appealed. On appeal, the claims commissioner argued that the trial court's judgment could be affirmed on the ground, inter alia, that "the trial court jacked jurisdiction over the plaintiff's application [for a writ of mandamus] because the determination of whether to waive immunity to suit is committed solely to the legislature and, through the legislature, to the claims commissioner." Id., 615.
The Supreme Court first acknowledged that it has held that "[t]he question whether the principles of governmental immunity from suit and liability are waived is a matter for legislative, not judicial, determination . . . [Further], [w]e have also held that the trial court does not have jurisdiction over an administrative appeal from the claims commissioner's discretionary denial of authorization to bring an action against the state because [t]he commissioner of claims performs a legislative function directly reviewable only by the General Assembly." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 618.
Nevertheless, the court explained, "the flaw in the claims commissioner's argument is that the plaintiff in the present case . . . is not attempting to appeal from a decision by the claims commissioner and is not asking the court to substitute its views for the claims commissioner's discretionary legislative determination as to whether sovereign immunity should be waived. Rather, the plaintiff is asking the court to determine whether the legislature, in enacting [a specific statute], intended to waive immunity to claims like his . . . Statutory interpretation is a quintessentially judicial function and this court has never hesitated to construe a statute to determine whether it constitutes a waiver of sovereign immunity . . . Accordingly, we conclude that the trial court had jurisdiction over the plaintiff's application." (Citations omitted.) Id., 619.
The same distinctions and rationale are applicable in the present case. First the plaintiff here is not appealing from a decision of the claims commissioner or asking the court to substitute its views for that of the claims commissioner. Rather, she, like the plaintiff in D'Eramo, is asking the court to determine whether the legislature, in enacting several statutes, intended to waive sovereign immunity as to claims similar to the one she sought to bring against the state. Accordingly, the court will not grant the defendants' motion for summary judgment on these grounds.
The court next addresses the defendants' argument that the court lacks subject matter jurisdiction over this action because it is moot. "Mootness is a question of justiciability . . ." Wallingford v. Dept. of Public Health, 262 Conn. 758, 766, 817 A.2d 644 (2003). "Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant . . ."
The mootness doctrine is rooted in the first factor of the [justiciability] test." (Citation omitted; internal quotation marks omitted.) Id. The doctrine "is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law." (Internal quotation marks omitted.) In re Allison G., 276 Conn. 146, 165, 883 A.2d 1226 (2005). Actions for declaratory judgments, like other civil actions "may be employed only to resolve a justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement." (Internal quotation marks omitted.) Connecticut Business Industry Ass'n., Inc. v. CHHC, 218 Conn. 335, 347-48, 589 A.2d 356 (1991).
"Mootness presents a circumstance wherein the issue before the court has been resolved or has lost its significance because of a change in the condition of affairs between the parties . . . The test for determining mootness of [an action] is whether there is any practical relief [the] court can grant the [plaintiff] . . . If no practical relief can be afforded to the parties, the [action] must be dismissed." (Internal quotation marks omitted.) Hartney v. Hartney, 83 Conn.App. 553, 565-66, 850 A.2d 1098, cat. denied, 271 Conn. 920, 859 A.2d 578 (2004).
The defendants argue that this action is moot because the plaintiff has already filed her claim with the office of the claims commissioner, and the claims commissioner issued a decision on her claim. Thus, "the entire administrative process before the Claims Commissioner" has been concluded. The plaintiff counters that the action is not moot because she may ask the legislature to review the claims commissioner's decision pursuant to § 4-164(b), and she needs this court to rule on the issues presented in her complaint in order to proceed with this remedy.
Section 4-164(b) provides: "The action of the Claims Commissioner in approving or rejecting payment of any claim or part thereof shall be final and conclusive on all questions of law and fact and shall not be subject to review except by the General Assembly."
The present status of the plaintiff's claim is such that "there is no practical relief the court can grant the plaintiff" and her action is therefore moot. Hartney v. Hartney, supra, 83 Conn.App. 556. If this court construed all of the statutes the plaintiff cites to in her complaint and determined that the claims commissioner had jurisdiction over her claim, this would be of no practical benefit to the plaintiff because the court cannot overturn the claims commissioner's decision. See Coelho v. State, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 94 0318748 (June 14, 1995, Hauser, J.) ( 14 Conn. L. Rptr. 359, 360-61) ("even if this court were to find that the claims commissioner had jurisdiction to hear the plaintiffs' claims, the finding would be moot because this court cannot reverse the decision of the claims commissioner and order him to exercise jurisdiction over the plaintiff's claim"). At this point, a decision by the court on the plaintiff's action for declaratory relief would only be an "advisory judicial opinion on points of law," which is not a proper use of judicial resources. See In re Allison G., supra, 276 Conn. 165.
Our courts have decided that they may retain jurisdiction over an administrative action that would otherwise be moot if the plaintiff has filed a separate, pending civil suit and can establish that it is reasonably possible that prejudicial collateral consequences will occur if the administrative action is dismissed. Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 439 n. 3, 685 A.2d 670 (1996). The possibility that the plaintiff may ask the General Assembly to review the claims commissioner's decision does not, however, qualify as a pending action. Moreover, even if the plaintiff does seek review by the General Assembly, it would be presumptuous for this court to assume that its construction of the relevant statutes and the claims commissioner's decision would have any impact on that review. As the Supreme Court has stated in a different, although related, context, the courts "must resist the temptation . . . to enhance our own constitutional authority by trespassing upon an area clearly reserved as the prerogative of a coordinate branch of government." (Internal quotation marks omitted.) 1 84 Windsor Avenue, LLC v. State, 274 Conn. 302, 313, 875 A.2d 498 (2005).
Finally, the plaintiff has not cited any authority for her assertion that she needs the court to issue a declaratory ruling before she can pursue her remedy in the legislature. The plaintiff's action is moot; the defendants' motion for summary judgment is granted and the plaintiff's action is dismissed.
Accordingly, the court need not address the plaintiff's motion for summary judgment.