Opinion
No. HHB CV 10 5015049 S
November 22, 2010
MEMORANDUM OF DECISION RE DEFENDANT MARY ROSE PALMESE'S MOTION TO DISMISS
BACKGROUND:
The self-represented plaintiff is currently an inmate incarcerated in a Connecticut correctional facility. He has filed a complaint entitled "U.S. 1983 Civil Rights Lawsuit." In reviewing this complaint, it appears to be a claim that the defendant supervisory assistant state's attorney, Mary Rose Palmese, and one Jerry Chaostowski, who is presumed to be a New Britain police officer, violated the plaintiff's federal and state civil rights in his prosecution by planting evidence, falsifying police reports and committing perjury. There is a dearth of fact pleading and ten of the eleven "Counts" of this complaint do not state any cause of action. Rather, the plaintiff appears to recite one allegation in each count and incorporates each prior count in the successive count.
This defendant has moved to dismiss this action, claiming this court lacks subject matter jurisdiction as the defendant enjoys prosecutorial immunity.
LEGAL STANDARD OF REVIEW:
"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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
The standard governing a trial court's review of a motion to dismiss is well established. "In ruling upon whether a complaint survives a motion to dismiss, 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.) Brennan v. Fairfield, 58 Conn.App. 191, 195, 753 A.2d 396 (2000).
"Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Citations omitted; internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 661, 717 A.2d 706 (1998). "A claim that [the] court lacks subject matter jurisdiction [may be raised] at any time." (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 787, 712 A.2d 396 (1998). "Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Citations omitted; internal quotation marks omitted.) Figueroa v. C S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
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. If the defendant submits no proof to rebut the plaintiff's jurisdictional allegations, the plaintiff need not supply evidence to support the complaint, but may rest on the jurisdictional allegations therein. Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
ANALYSIS:
It must be noted at the outset that the plaintiff has failed to comply with Section 10-1 of the Rules of Practice, which requires "a plain and concise statement of the material facts on which the pleader relies, but not the evidence by which they are to be proved, such statement to be divided into paragraphs numbered consecutively, each containing as nearly as may be a separate allegation." The plaintiff has failed to comply with Section 10-26 of the Rules of Practice, which requires the plaintiff to place each separate and distinct cause of action in a separate count. The plaintiff has taken each allegation and placed it into a separate count. By cumulative pleading, the operative count is Count Eleven, wherein the plaintiff alleges both federal constitution claims under 42 U.S.C. §§ 1981, 1983 and 1988 and unspecified state constitutional claims.
The plaintiff has failed to allege any facts upon which this court can determine if he has sufficiently plead a cause of action against this defendant. He has merely asserted a conclusory statement that the defendants "planted evidence, falsified police reports and commited [sic] perjury." Complaint, Count 8, incorporated by reference in Counts 9, 10 and 11. Also contained in that count is another allegation that this defendant, Palmese, "committed perjury with the specific intent to cover up their scheme upon her compliance with a request for production in the plaintiff's petition for a new trial having to do with said scheme." It is presumed that the plaintiff alleges two instances of perjury on the part of this defendant, one occurring at the criminal trial and the other in response to a request for production in conjunction with a petition for new trial.
This defendant claims absolute prosecutorial immunity. When it applies, absolute immunity bars a civil lawsuit, "even if it leaves the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest actions deprives him of liberty." Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).
This defendant is a supervisory assistant state's attorney. She enjoys absolute prosecutorial immunity only for acts undertaken as a function of her position.
The Connecticut Appellate Court has succinctly set forth the analysis for application of absolute immunity to prosecutors in Barese v. Clark, 62 Conn.App. 58, 773 A.2d 946 (2001):
Our Supreme Court, the United States Supreme Court and the federal courts of appeals have long recognized the existence of, and the need for, prosecutorial immunity. Such immunity exists to allow prosecutors at the state and federal level to be free to perform their essential role in the judicial process without the possibility of civil liability hanging over their head as a sword of Damocles . . .
The United States Supreme Court addressed the issue of a state prosecutor's amenability to suit under 42 U.S.C. § 1983 . . . in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Although that case arose under 42 U.S.C. § 1983 and not under state common law, the court engaged in an extensive discussion concerning the existence of common law immunities for prosecutors, the question at issue here. The court did so because it previously had held in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), that "immunities well grounded in history and reason had not been abrogated by covert inclusion in the general language of § 1983." (Internal quotation marks omitted.) Imbler v. Pachtman, supra, 418, quoting Tenney v. Brandhove, supra, 376. As the court in Imbler stated: "The decision in Tenney established that § 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them." Imbler v. Pachtman, supra, 418.
"The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Id., 422-23.
To allow a prosecutor to be subject to suit for actions performed as an integral part of the judicial process "would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case . . . The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement." Pearson v. Reed, 6 Cal.App.2d 277, 287, 44 P.2d 592 (1935). (Footnotes omitted.)
Barese v. Clark, 62 Conn.App. at 61-62.
The inquiry as to whether a prosecutor enjoys absolute immunity involves employing a "functional approach." "Immunities are grounded in `the nature of the function performed, not the identity of the actor who performed it.'" (Internal citation omitted.) Clinton v. Jones, 520 U.S. 681, 695, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997).
In Mitchell v. Forsyth, 472 U.S. 511, 521-23, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the U.S. Supreme Court pointed to three factors to be considered in determining whether a government official should be given absolute immunity for a particular function: (1) whether a historical or common-law basis exists for immunity from suit arising out of performance of the function; (2) whether performance of the function poses obvious risks of harassing or vexatious litigation against the official, and (3) whether there exist alternatives to damage suits against the official as a means of redressing wrongful conduct.
This court is unable to apply the three-prong functional approach here. The plaintiff has failed to allege any facts concerning conduct on the part of the defendant which would abrogate absolute immunity. The plaintiff alleges no conduct on the part of the defendant that is apart from her function as a prosecutor. In the absence of the allegation of such facts, the defendant enjoys absolute prosecutorial immunity for the acts alleged in the plaintiff's complaint.
The only factual allegations which the plaintiff has shared with the court are that the defendants planted evidence, falsified police reports and committed perjury or perjuries. Complaint, Count 8, incorporated by reference in Counts 9, 10 and 11. Since absolute immunity covers "virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate," when the underlying activity at issue is covered by absolute immunity, the "plaintiff derives no benefit from alleging a conspiracy." Hill v. City of New York, 45 F.3d 653, 659 n. 2.
"[P]rosecutors are absolutely immune from liability . . . for their conduct in initiating a prosecution and in presenting the State's case . . . insofar as that conduct is intimately associated with the judicial phase of the criminal process . . . It was recognized . . . that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom." (Citations omitted; internal quotation marks omitted.) Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). In the absence of facts alleged that this defendant was acting outside her function as a prosecutor, she enjoys absolute immunity from the conduct alleged in this complaint. Imbler v. Pachtman, supra CT Page 23527 424 U.S. at 419 n. 13.
In his complaint, the plaintiff has not alleged the defendant state's attorney acted outside the scope of judicial proceedings. See, Buckley v. Fitzsimmons, 509 U.S. 259, 270-71, 113 S.Ct. 2606 (1993). However, in his memorandum of law in support of his objection to the defendant's motion to dismiss, the plaintiff concedes that "most of the conduct in which the plaintiff complains of happened during the course of his criminal trial . . ."
The only act which is not conceded to be a function of judicial activity is the alleged perjury of this defendant in responding to disclosure requests in the subsequent civil petition for a new trial. The plaintiff claims in his memorandum of law that the defendant was "stripped of her cloak of immunity" in appearing as a defendant in that action, the petition for new trial, filed against her by this plaintiff. The plaintiff offers no support for this claim, nor does he explain how he is able to deprive the prosecutor of absolute immunity by merely filing a civil action against her. Moreover, there are no allegations in the complaint concerning the aforementioned civil action.
The plaintiff has filed no affidavits, nor did he provide even uncertified copies of any of the documents to which he refers in his memorandum. Although this court has the ability to review the subject petition for new trial, none of the defendant's disclosure responses from that action, to which the plaintiff refers, were provided to the court. As the plaintiff does not inform the court what the questions or responses were, or how these responses advance his claim that the state's attorney is deprived of absolute immunity, this portion of his memorandum is not edifying.
Although the plaintiff sued the defendant personally, the defendant appeared in that post-judgment matter in her capacity as a prosecutor to answer for her actions as a prosecutor. Therefore, although the plaintiff may have sued the state's attorney individually, she maintained her immunity. Pinaud v. County of Suffolk, 52 F.3d 1139, 1147-48 (2d. Cir. 1995). A prosecutor defending against a post-judgment conviction remains the state's advocate in an adversarial proceeding that is an integral part of the criminal justice system and is entitled to absolute immunity. Warney v. Monroe County, 587 F.3d 113, 122 (2d. Cir. 2009).
CONCLUSION:
The defendant's motion to dismiss is granted.