Opinion
No. CV 040488378
December 1, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS ACTION FILED BY INMATE AGAINST DEPARTMENT OF CORRECTIONS AND CERTAIN EMPLOYEES
Noel Davila, an inmate at the Connecticut Department of Corrections (the Department), has brought this lawsuit in which he names Dr. Tung Mingzer, and a several nurses allegedly under contract with the Department as having provided improper medical care to him.
In his complaint, filed on April 2, 2004, plaintiff Noel Davila sets out the following essential allegations: "on December 21, 2003, my pain medication was changed from a percocet (blue) pills to white pills without any notice. On the following morning I have explained nurse on duty, Tony, that I have been feeling horrible since they change my medication to the white pills which causing me throwing up, swollen stomach, neck, hands and redness all." He further alleges that he was hospitalized for a week, during which he received an I.V. and no solid food.
In his complaint, plaintiff Noel Davila uses the following words in describing why the State of Connecticut is liable for his injury: "[b]ecause Dr. Tung Mingzer, Nurse Joan Dobson, nurse Sharon Capella, Jones, ignored my plea for help, negligent gave me percodent instead of percocet, which I was allergic to it, and the above employees are under state contract who work for the State of Connecticut and committed malpractice."
The printed form of the complaint is addressed to the Commissioner of Claims in Hartford Connecticut. The form contains a statement that he is seeking permission to sue the State for $250,000, and concludes with the following wording: "I hereby present a Notice of Claim against the State of Connecticut for the injury suffered." The plaintiff served a copy of the complaint on Dr. Tung Mingzer, and nurses Joan Dobson, Pat Morris, and Sharon Capella. Defendant State of Connecticut has filed a motion to dismiss. The State does not challenge its standing in this case. It takes the position that this suit against the named individuals is a lawsuit against the state.
In its motion to dismiss the defendant argues that the gravamen of the complaint is that the plaintiff was given white pills, instead of his usual blue pills at the correctional institution and that he thereafter became ill, and that the nurses poked him while trying to take out an IV. The State of Connecticut urges that the court dismissed this case on the following grounds: 1) sovereign immunity; 2) Connecticut General statutes section 4-165; 3) failure to exhaust administrative remedies; and 4) insufficiency of process.
Sovereign Immunity and Sec. 4-165
The doctrine of sovereign immunity provides protection against the state being sued without its consent in a case such as this one. Doe v. Heintz, 204 Conn. 17, 31 (1987). Sovereign immunity does not prohibit actions against state officials who act in excess of statutory authority. Nor does sovereign immunity apply where the Legislature has passed a statute allowing the State to be sued. Such a statute is Connecticut General statutes Section 4-165, which provides in pertinent part that
[n]o State officer or employee shall be personally liable for damages or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the State under the provisions of this chapter.
Id.
In his complaint the plaintiff does not state that the defendants are state employees or state officers. He alleges that they were operating under a state contract and were working for the State of Connecticut. In its motion to dismiss, the defendant State of Connecticut cites the doctrine of sovereign immunity and General statutes section 4-165 as though the defendants are in some sense state employees. The plaintiff has not disputed this status. Thus, the court will treat them as state employees for the purpose of addressing this aspect of the motion to dismiss.
Inasmuch as the complaint does not allege wanton, reckless or malicious conduct of the defendants, section 4-165 authorizes the plaintiff to present his claim to the Claims Commissioner. Section 4-147 states that "[a]ny 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 . . ." Section 4-160 provides that "[w]hen 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 on which the State, were it a private person, could be liable." This section also requires that a claimant must allege in his lawsuit that the Claims Commissioner has authorized it. Clearly, the plaintiff in this case has not asserted that he filed a claim with the Clerk of the Office of the Claims Commissioner. Moreover, the plaintiff has not alleged that the Claims Commissioner has authorized this lawsuit.
Section 4-160 states in pertinent part that "[i]n each action authorized by the Claims Commissioner . . . the claimant shall allege such authorization and the date on which it was granted . . ."
Re Exhaustion of Administrative Remedies
The defendant contends that since the plaintiff has not presented his claim to the Claims Commissioner, he has failed to exhaust his administrative remedies. In Sullivan v. State, 189 Conn. 550 (1983), the Supreme Court recognized that a personal injury claim against the state must first be filed with and adjudicated or processed by the Claims Commissioner, and that the failure to follow that procedure results in a failure to exhaust an important administrative remedy. Such a failure deprives this court of jurisdiction to hear this case.
Insufficiency of Process
Lastly, the State argues that the failure of the plaintiff to file the bond required by Connecticut General Statutes Section 52-185, deprives this court of jurisdiction. Although this argument deserves the plaintiff's attention, its advancement at this time is not necessary to a resolution of the present controversy.
Sec. 52-185. Bond for prosecution.
(a) If the plaintiff in any civil action is not an inhabitant of this state, or if it does not appear to the authority signing the process that the plaintiff is able to pay the costs of the action should judgment be rendered against him, the plaintiff shall, before the process is signed, enter into a recognizance to the adverse party with a financially responsible inhabitant of this state as surety, or a financially responsible inhabitant of this state shall enter into a recognizance to the adverse party, that the plaintiff shall prosecute his action to effect and answer all costs for which judgment is rendered against him.
Conclusion
Since the plaintiff has not filed his claim with the Claims Commissioner, and because he has not alleged that the Claims Commissioner has authorized him to bring this lawsuit, it is obvious that the plaintiff has not exhausted his administrative remedy. The failure to exhaust the administrative remedy in this case has deprived this court of its jurisdiction.
Accordingly, the defendant's Motion to Dismiss is granted.
Clarance J. Jones, Judge