Summary
In Ertel, the Superior Court rejected the claim that the Department of Environmental Protection's refusal to issue a permit constitutes a taking under the Connecticut Constitution. See generally Ertel, 2005 WL 469224.
Summary of this case from Crowley v. CostaOpinion
No. CV-03-0100647-S
January 21, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The defendants, Arthur J. Rocque, Jr. and Rachel Reich Towbin, employees of the Department of Environmental Protection (the "Department"), have moved to dismiss this action in which the plaintiff alleges violations of the First, Fifth and Fourteenth Amendments to the United States Constitution, and Article First §§ 4, 5, 11, 14 and 20 of the Constitution of the State of Connecticut. The plaintiff is suing both defendants in their individual and official capacities.
The defendants argue that all official capacity claims for money damages must be dismissed on sovereign immunity grounds, because the plaintiff has not obtained the required authorization from the claims commissioner to sue. They further argue that to the extent that the Amended Complaint of January 8, 2004 (the "Complaint") seeks injunctive relief, it must be dismissed, because the plaintiff has not adequately alleged that the defendants acted in excess of their statutory authority or pursuant to an unconstitutional statute. Finally, the defendants argue that they were acting in the discharge of their duties or within the scope of their employment when the alleged conduct occurred, and, therefore, are entitled to immunity under Conn. Gen. Stat. § 4-165.
Factual Background
The defendants have provided the court with a number of decisions involving the subject matter of this lawsuit and the previous relationship between the plaintiff and the Department, the actions the Department has taken against the plaintiff and has asked the court to take judicial notice of the facts found in those decisions. The plaintiff has not objected to this request.
In August 1981, the plaintiff applied to the Department for a permit to extend a dock on property that he recently had purchased. Ertel v. Carothers, No. CV-89-362620, 1992 Conn. Super. LEXIS 1201, at *1 (Conn.Super.Ct. May 1, 1992). The dock was located between two of the parcels of land that comprised Oak Leaf Marina ("Oak Leaf"), which was owned by Scott and Sherry Masse. Complaint, Count One ¶¶ 7-8. On June 3, 1982, the Department issued the requested permit and required the plaintiff to complete the modification of the dock by June 3, 1985. Complaint, Count One ¶ 6; Ertel, 1992 Conn.Super. LEXIS 1201, at *1.
"On August 26, 1985, Oak Leaf had its attorney contact the [Department] regarding the plaintiff's failure to comply with the terms of the permit. A DEP inspection revealed that the plaintiff's dock, which was completed in 1984, did not conform to the permit "because the plaintiff had removed a pre-existing `dogleg' without permission." Ertel, 1992 Conn. Super. LEXIS 1201, at *2. The Department objected to the change and, in a letter dated December 30, 1985, informed the plaintiff that `to avoid permit suspension or revocation, you must relocate the pilings to a distance no greater than twenty feet from the pier' by April 15, 1986." Id.
The Complaint alleges that the Owners of Oak Leaf had objected to the plaintiff's construction since 1983. Complaint, Count One ¶ 8. The Complaint further alleges that in August 1986, the plaintiff objected to certain unpermitted construction conducted by Oak Leaf Complaint, Count One ¶ 9.
The Department found that the dock did not conform to the permit because: "(1) the pilings were placed thirty-two feet away from the dock's centerline instead of twenty feet away, as specified in the permit; (2) the decking was four feet wide instead of three feet wide; (3) the dock had twenty-two slips instead of eighteen; and (4) the plaintiff removed a pre-existing `dog-leg' in the dock without permission to do so." Ertel, 1992 Conn. Super. LEXIS 1201, at *1.
On March 6, 1986, the plaintiff applied for a new permit that contained modified construction plans. Id. After requesting additional information, the DEP scheduled a public hearing on this application. However, on March 31, 1987, the plaintiff requested withdrawal of the application. Id. at *2-*3. On November 30, 1987, the plaintiff submitted an amended application for expanding his dock. Id. at *3.
In September 1988, after concluding that the plaintiff had violated Conn. Gen. Stat. §§ 22a-359— 22a-363, the Department "by way of a notice of permit revocation and order to remove existing structures . . . revoked the plaintiff's permit and directed the plaintiff to remove all docks, pilings, floats and piers located seaward of the high tide line on his property." Id.; Notice of Permit Revocation dated September 30, 1988 at 1-2 (the " Revocation Notice"). The Department ordered the plaintiff to restore the shoreline at the site to the condition existing before the commencement of the unauthorized work. On October 14, 1988, the plaintiff requested an administrative hearing in order to contest this order. Revocation Notice at 2.
"After a thorough and comprehensive review of the entire record of a public hearing held on January 19 and March [30], 1989," the adjudicator issued a final decision and order that affirmed the Revocation Notice: Final Decision and Order In Re: Permit Revocation Proceeding Concerning Permit Number SD-82-153 dated May 9, 1989 at 1, 7 (the "Final Decision"). Ertel, 1992 Conn. Super. LEXIS 1201, at *4.
In the Final Decision, the adjudicator concluded, inter alia, that the plaintiff:
has for at least six years knowingly and willfully for private gain violated the terms of [his permit] and the public trust in that he has constructed and maintained a structure . . . which does not conform to the plans and specifications and conditions contained in the permit issued to him on June 3, 1982.
Such actions have continued without any physical attempt to bring the structure into compliance with the terms of the permit and despite the caveats contained in conditions Nos. 2 and 3 of the permit and the two warning letters sent by the DEP's Water Resources Unit to [the plaintiff].
Final Decision at 6.
The plaintiff appealed the Final Decision to the Superior Court. The trial court concluded that the "appeal is subject to dismissal for lack of subject matter jurisdiction," because the plaintiff failed to serve all parties to the appeal. Ertel, 1992 Conn. Super. LEXIS 1201, at *15. However, the trial court also addressed the merits of the appeal, rejecting all of the plaintiff's arguments, and concluding that:
The adjudicator's conclusions regarding the plaintiff's noncompliance are reasonable and supported by substantial evidence, as the record demonstrates that the plaintiff failed to comply with the terms of his permit, and that he had notice and warnings regarding his noncompliance. The agency's decision must be upheld because it can be reasonably inferred from the record that the plaintiff knowingly and willfully failed to comply with the terms of his permit. CT Page 1243
Id. at *31-*32. The Appellate Court affirmed the trial court's decision. Ertel v. Carothers, 34 Conn. App. 18 (1994).
After exhausting his appeals, the plaintiff brought a declaratory judgment action seeking a clarification of the Final Decision. Specifically, the plaintiff requested that the court reconcile what he considered two ambiguous paragraphs in the order. Part A of the Final Decision required the plaintiff "to remove all construction seaward of the high tide line." The trial court theorized that "[t]his would appear to require him to remove even the dock that was in existence prior to his acquisition of the property and that had been authorized by a permit that is not in issue in this case." Part B "by contrast, required the plaintiff to restore the shoreline to the conditions `existing before the commencement of unauthorized work.'" The trial court believed that this part of the Final Decision might be in conflict with Part A because Part B "would appear to allow the plaintiff to leave the original dock intact, since it existed at the shoreline before the commencement of the work that the commissioner found to be unauthorized." Ertel v. Keeney, No. CV-94-536976, 1994 Conn. Super. LEXIS 2479, at *6 (Conn.Super.Ct. Sept. 21, 1994).
On May 8, 2000, the Department, after conducting "a limited fact-finding proceeding only for the purpose of taking evidence and hearing testimony on the factual question" presented by the plaintiff, issued a clarification to its May 9, 1989 Decision. Declaratory Ruling Petition dated May 8, 2000 at 1 (the " Clarification Ruling"). In the Clarification Ruling, the Department concluded that Parts A and B of the Decision did not contradict each other and ordered the plaintiff to comply with the Final Decision Id. at 3.
The Department concluded that the Final Decision `is not contradictory because of the presence of any dock that existed prior to work carried out pursuant to the revoked permit . . . [because] nothing remains of a structure that existed when [the plaintiff] purchased the property in 1981." Clarification Ruling at 2-3. The Department further concluded that the Final Decision "is also not contradictory on its face. The [ Final Decision] clearly states that the petitioner is to remove all docks, pilings, floats, piers, riprap, fill and any other structure or work seaward of the high tide line at the site. [Plaintiff] is then to restore the shoreline (not structures, as he asserts) at the site to the condiction existing at the time the [plaintiff] received his permit." Id. at 3 (emphasis in original).
On February 5, 2003, the plaintiff filed a complaint against the present defendants, as well as against David Leff, the Deputy Commissioner of the Department. On August 27, 2003, this court, Gordon, J., granted the Department's motion to dismiss Leff pursuant to the doctrine of judicial immunity. Ertel v. Rocque, No. CV-30100647, 2003 Conn. Super. LEXIS 2417, at *1-*3 On January 8, 2004, the plaintiff filed his Amended Complaint.
Discussion of the Law and Ruling
"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." Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991) (internal quotation marks omitted.). A motion to dismiss may be brought to assert, inter alia, "lack of jurisdiction over the subject matter." Practice Book § 10-31(a). "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Brookridge Dist. Ass'n v. Planning Zoning Comm'n, 259 Conn. 607, 611, 793 A.2d 215 (2002) (citation omitted; internal quotation marks omitted).
In addition, a court may take judicial notice of files in other cases, regardless of whether or not the other case is between the same parties. Drabik v. Town of East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995); Karp v. Urban Development Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972); Guerriero v. Golasso, 144 Conn. 600, 605, 136 A.2d 497 (1957). Given the extensive litigation between the plaintiff and the Department beginning in the mid-1980s, the defendants have presented the court with a number of Superior and Appellate Court opinions, which make certain findings as to which the court takes judicial notice.
Both the doctrines of sovereign immunity and statutory immunity implicate subject matter jurisdiction and are, therefore, a basis for granting a motion to dismiss. Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002); Antinerella v. Rioux, 229 Conn. 479, 489, 642 A.2d 699 (1994); Amore v. Frankel, 228 Conn. 358, 364, 363 A.2d 786 (1994). "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." Fed. Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996) (quoting Baldwin Piano Organ Co. v. Blake, 186 Conn. 295, 297, 441 A.2d 183 (1982)).
Absent waiver, sovereign immunity bars a cause of action seeking money damages against the state, without exception. See, e.g., Miller v. Egan, 265 Conn. 301, 314-15, 828 A.2d 549 (2003). "[B]ecause the state can act only though its officers and agents, a suit against a state officer or concerning a matter in which the officer represents the state is, in effect, against the state." Id. at 313 (quoting Fetterman v. Univ. of Conn., 192 Conn. 539, 550-51, 473 A.2d 1176 (1984)).
Only "the legislature, either expressly or by force of a necessary implication, [may] statutorily [waive] the state's sovereign immunity." Id. at 314. "When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim." Krozser v. City of New Haven, 212 Conn. 415, 421, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036 (1990); Conn. Gen. Stat. § 4-160. The plaintiff "must seek a waiver from the claims commissioner before bringing an action against the state in the Superior Court." Miller, 265 Conn. at 318; see also Prigge v. Ragaglia, 265 Conn. 338, 349, 828 A.2d 542 (2003) (Because "the plaintiffs have not received permission from the office of the claims commissioner to bring their claims for money damages against the state . . . the doctrine of sovereign immunity bars those claims.").
This doctrine equally is applicable to claims brought under the United States Constitution, the Constitution of the State of Connecticut or the common law. For example, in Krozser, supra, the plaintiff brought suit "pursuant to 42 U.S.C. § 1983 and 1988, against the State of Connecticut and Raymond Lopes, in his official capacity as the commissioner of correction," 212 Conn. at 417, alleging that the defendants' conduct violated decedent's rights pursuant to the Eight and Fourteenth Amendments to the United States Constitution. Id. at 419. The issue on appeal was whether "the Superior Court had the authority to waive sovereign immunity and to allow an action to proceed against the state even though the claims commissioner had not authorized the suit." Id. at 416. The Court concluded that "[s]ection 1983 does not abrogate the common law doctrine of sovereign immunity." Id. at. 423. The Court then went on to conclude that, given that premise, only the Claims Commissioner may waive the State's immunity and "[u]ntil that happens, . . . the Superior Court has no jurisdiction to hear any such monetary claim." Id. at 423.
In Prigge, supra, the plaintiffs asserted causes of action pursuant to the First and Fourteenth Amendments to the United States Constitution, Article First §§ 3 and 20 and Article Seventh of the Constitution of Connecticut, and common law tenets concerning intentional infliction of emotional distress. Id. at 348. The Court dismissed all causes of action against the defendants in their official capacities to the extent that they sought money damages, concluding that, "[w]hen a plaintiff brings a cause of action for money damages against the state, he must proceed through the office of the claims commissioner . . . Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity.". Id. at 349.
In this case, the plaintiff has asserted causes of action under the First and Fourteenth Amendments to the United States Constitution, and Article First §§ 4, 5, 11, 14 and 20 of the Constitution of the State of Connecticut. The Complaint does not point to any statutory authority, that waives the State's sovereign immunity. Furthermore, the plaintiff has not obtained authorization from the Claims Commissioner to bring this action. Consequently, the plaintiff's claims for money damages against the defendants in their official capacities are dismissed because they are barred by sovereign immunity and this court lacks subject matter jurisdiction over this action to the extent that the Complaint seeks such relief.
Under certain circumstances "the doctrine of sovereign immunity is not available to the state as a defense to claims for compensation arising under article first § 11 of the Connecticut constitution." Tamm v. Burns, 222 Conn. 280, 283, 610 A.2d 590 (1992). The plaintiff has attempted to assert such a claim in Count Three of the Complaint. "To survive a motion to dismiss on the ground of sovereign immunity, a complaint `must allege sufficient facts to support a finding of a taking of land in a constitutional sense.'" Id. at 284 (quoting Horak v. State, 171 Conn. 257, 261, 368 A.2d 155 (1976)).
In the context of the Fifth Amendment of the United States Constitution and Article First § 11 of the Connecticut Constitution, the word "taken" means generally the exclusion of the owner from his private use and possession, and the assumption of the use and possession by the authority exercising the right of eminent domain. Laurel, Inc. v. State, 169 Conn. 195, 201, 362 A.2d 1383 (1975) "Although property may be `taken' without any actual appropriation or physical intrusion . . . `there is no taking in a constitutional sense unless the property cannot be utilized for any reasonable and proper purpose . . . as where the economic utilization of the land is, for all practical purposes, destroyed.'" Tamm, 222 Conn, at 284 (quoting Horak, supra at 261).
Before a court can review a landowner's claim that he has been deprived of his property without just compensation, the court must define the property interest that has allegedly been taken. Bauer v. Water Mgmt. of Conn., 234 Conn. 221, 253, 662 A.2d 1179 (1975); Gil v. Inland Wetlands Watercourses Agency of Greenwich, 219 Conn. 404, 410, 593 A.2d 1368 (1991). In the present case, the only potential property interest the plaintiff might have is one in the dock. The law is clear that one does not have a property interest in a construction permit. See, e.g., Graham Corp. v. Bd. of Zoning Appeals of Greenwich, 140 Conn. 1, 4, 97 A.2d 564 (1953).
On the facts of this case, the plaintiff cannot have a property right in the dock that he was ordered to remove because the dock that the plaintiff constructed did not at any time conform to the permit. Ertel, 1992 Conn. Super. LEXIS 1201, at *31-*32. To the contrary, "the plaintiff knowingly and deliberately built a structure differently from the permitted plans, both to accommodate a special boat and to receive monies for renting out slips. Id. at *31. Because the plaintiff constructed "a replacement structure bear[ing] no resemblance to the former structure," Decl. Ruling at 3, the plaintiff now cannot complain of the defendants' actions.
The plaintiff has not alleged that the property, minus the non-conforming dock, lacks any economic value, nor has he alleged that he cannot apply for a new permit to build a dock that would conform to current Department criteria. For the foregoing reasons, the plaintiff's claim brought pursuant to Article First § 11 is hereby dismissed on sovereign immunity grounds because the allegations of the Complaint, viewed in light of the facts found in prior decisions of which this court taken judicial notice, does not allege sufficient facts to support a finding of a taking.
The plaintiff's Fifth Amendment takings claim is also dismissed. "[B]ecause of the existence of a legally sufficient procedure, under article first, § 11 of the constitution of Connecticut to obtain just compensation for the alleged taking of their property," a plaintiff "[is] not entitled to consideration of [its Fifth Amendment] claim." Melillo v. City of New Haven, 249 Conn. 138, 154 n. 28, 732 A.2d 133 (1999); Santini v. Conn. Hazardous Waste Mgmt. Serv., 342 F.3d 118, 127 (2d Cir. 2003).
The Complaint also seeks a "temporary and permanent injunction requiring [the defendants] forthwith to permit the plaintiff to reconstruct a dock at his aforesaid location." The bar of sovereign immunity may be avoided "in an action for declaratory or injunctive relief, [wherein] the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute," Miller, 265 Conn. at 314.
In Miller, the Supreme Court clarified the scope of the exception to the doctrine of sovereign immunity for actions allegedly taken in excess of statutory authority. The Court held that "when a process of statutory interpretation establishes that the state officials acted beyond their authority, sovereign immunity does not bar an action seeking declaratory or injunctive relief." Id. at 327.
It is not sufficient to allege unconstitutional or illegal conduct even where injunctive relief is sought. The claim alleged must be substantial to avoid the bar imposed by sovereign immunity. See, e.g, Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977). "The allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion on constitutionally protected interests." Barde v. Bd. of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988); Wiley v. Lloyd, 4 Conn.App. 447 (1985). "Otherwise, plaintiffs could circumvent sovereign immunity claims by invoking empty constitutional phrases." Simso v. State, 2003 Conn.Super. LEXIS 996, at *30 (Conn.Super.Ct. April 7, 2003) (Sheldon, J.)
"The fourteenth amendment to the United States constitution provides that `[n]o state shall . . . deny any person within its jurisdiction the equal protection of the law.' Article first, § 20, of the Connecticut constitution contains similar language. `This court has many times noted that equal protection clauses of the state and federal constitutions have a like meaning and impose similar constitutional limitations.'" Barde, 207 Conn. at 65 (quoting Horton, 172 Conn. at 639.)). The only equal protection claim evident in the allegations of the Complaint is one of selective enforcement. The plaintiff claims that the defendants singled him out for permit revocation because he complained about Oak Leaf. Complaint, Count One ¶¶ 9-16.
[A] selective enforcement claim based on the Equal Protection Clause must allege that: (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. Giordano v. City of New York 274 F.3d 740, 750-51 (2d Cir. 2001).
The plaintiff alleges that defendant Towbin "rejected the plaintiff's offer to bring his structure into compliance through a stipulated agreement, and did so unreasonably, irrationally and with the intent to injure the plaintiff." Complaint, Count One ¶ 11J. He further alleges that defendant Rocque "intentionally and maliciously accelerated his enforcement actions against the plaintiff when and because, the plaintiff in August 1986, reported to the Department . . . the fact that Scott and Sherrie Masse were undertaking unpermitted construction on the Connecticut River." Complaint, Count One ¶ 11C. These allegations are severely undermined by the findings in the various final decisions involving the plaintiff and the Department of which the court has taken judicial notice.
A judge of this court has found that on March 29, 1989, the plaintiff filed "an offer to enter into a consent order whereby plaintiff would reconfigure the dock." Ertel, 1992 Conn. Super. LEXIS 1201, at *3-*4. The plaintiff made this offer the day before the second day of the plaintiff's revocation hearing. Id. at *4; Final Decision at 1. This "offer" occurred more than three years after the Department had determined that the plaintiff's dock was not in compliance with its permit and after the Department had issued a notice of permit revocation to the plaintiff. Ertel, 1992 Conn. Super. LEXIS 1201, at *2-*4. Given these undisputed judicial findings as to how defendant Towbin acted the record before the court cannot support the legal conclusion that Towbin acted "unreasonably, irrationally and with the intent to injure the plaintiff in rejecting the plaintiff's offer as alleged in the Complaint. Without that conclusion there is no viable equal protection claim sufficient to satisfy the heightened standard in sovereign immunity cases.
The same argument applies to defendant Rocque. In December 1985, the Department determined that the plaintiff's dock did not conform to the permit, yet the Department did not issue a notice of permit revocation until September 1988. Id. Given this almost three-year period, the plaintiff's bare assertion that defendant Rocque "intentionally and maliciously accelerated his enforcement actions" after August 1986 is not sufficient to establish an equal protection violation that will overcome sovereign immunity. Based on the foregoing, to the extent that the Complaint seeks injunctive relief for any equal protection violations, it must be dismissed.
The plaintiff argues that the Complaint contains "a wealth of factual detail, unconstitutional actions resulting in injury." However, the court is not limited to taking the allegations of the Complaint at face value in considering a Motion to Dismiss. Barde v. Bd. of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988).
In Barde, the defendant moved to dismiss the plaintiff's declaratory judgment action for lack of subject matter jurisdiction, asserting that the doctrine of sovereign immunity barred the action. Id. at 61. The issue for the Court was "whether [the plaintiff's] claims of the denial of federal and state constitutional guarantees of due process and equal protection of the laws were sufficiently established so as to preclude the operation of the doctrine of sovereign immunity." Id. In answering this question the Court considered the allegations of the Complaint and the affidavits and other materials submitted by the defendants and found that the latter contradicted the plaintiff's legal conclusions as to the existence of the constitutional violations:
The linchpin of the plaintiff's equal protection argument lies in his contention that other administrators moved to the faculty in a tenured status and that although similarly situated, he was not similarly treated. The May 15, 1986 letter from McKirdy, however, refutes these allegations by pointing out that the administrators to which the plaintiff referred had already achieved tenure prior to their transfers to the faculty which was not the plaintiff's situation. The plaintiff has never disputed the validity of these assertions that he was not in fact in the same circumstances as the college deans referred to in his complaint. This being the case, it is evident that the factual basis for the equal protection claim simply did not exist. We therefore conclude that the constitutional claims have not been established and thus the doctrine of sovereign immunity operates as a bar to subject matter jurisdiction
Barde, 207 Conn. att 65-66.
As in Barde, the allegations of the Complaint as to an equal protection violation simply are not supported by the other facts of which the court has taken judicial notice. The Complaint alleges that the "defendants did not at any time afford the plaintiff the opportunity to correct any asserted defects in his dock . . . although the defendants permitted all other persons under their jurisdiction similarly situated to do so." Complaint, Count One ¶ 12. However a judge of this court found in 1992 that the Department notified the plaintiff by letter dated December 30, 1985, that his dock was not in compliance with his permit and that he had until April 15, 1986 to take corrective action. Ertel, 1992 Conn.Super. LEXIS 1201, at *2. That court further found that the Department did not issue a notice of permit revocation until September 1988. Id. at *3. Such contradictions are replete throughout the Complaint. These contradictions make clear that "the factual basis for the equal protection claim simply [does] not exist." Barde, 207 Conn. at 66.
The plaintiff alleges that he was deprived of procedural due process because the defendants (1) failed to conduct an investigation pursuant Connecticut General Statutes § 22a-7; (2) failed to issue a compliance order to the plaintiff prior to revoking the plaintiff's permit; and (3) ordered the dock removed prior to conducting a hearing. Even assuming the truth of these allegations, the plaintiff now cannot claim a procedural due process violation because he was provided with a contested evidentiary hearing and appellate review prior to the Department enforcing the order to remove the dock.
"Procedural due process generally requires that an individual be given notice and an opportunity to be heard before the government may deprive him of property." Padberg v. McGrath-McKechnie, 203 F.Sup.2d 261, 286 (E.D.N.Y. 2002). In this case, on September 30, 1988, the Department issued a notice of permit revocation to the plaintiff. Although the notice revoked the plaintiff's permit and ordered him to remove the dock, the order stated that it "is effective on October 17, 1988 unless the Department . . . receives [plaintiff's written answer by that date . . . Upon receipt of the answer a hearing will be scheduled to provide [plaintiff] with an opportunity to show compliance with all lawful requirements for the retention of [the permit]." Notice of Permit Revocation at 2. A public hearing was held on January 19 and March [30], 1989, Final Decision at 1, and, after the adjudicator issued his decision, the plaintiff exercised his appellate rights. Given these undisputed judicial findings, see Ertel, 1992 Conn. Super. LEXIS 1201, at *1-*4, the plaintiff now cannot assert that the defendants deprived him of any procedural due process rights.
The plaintiff's substantive due process claim consists of the same allegations that govern, inter alia, his Fourteenth Amendment equal protection cause of action. The United States Supreme Court has held that "where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994)). In this case, the plaintiff's allegations that the defendants sought to revoke his permit in retaliation for him complaining about the conduct of Oak Leaf are governed by the Equal Protection Clause. Consequently, the plaintiff's claim for injunctive relief on substantive due process grounds must be dismissed for the reasons set forth above with respect to the Equal Protection claim. See Hayut v. State Univ. of New York, 127 F.Sup.2d 333, 339 n. 8 (N.D.N.Y. 2000); Johns v. Town of E. Hampton, 942 F.Sup.99, 8 (E.D.N.Y. 1996).
Finally, the Complaint alleges that the defendants retaliated against the plaintiff for exercising his First Amendment right to petition the government. In order to bring a First Amendment retaliation claim, a plaintiff must assert that: (1) the plaintiff's conduct was protected by the First Amendment; and (2) "defendants' conduct was motivated by or substantially caused by his exercise of free speech." Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994). In this case, the plaintiff cannot satisfy the second prong of this test.
The Complaint alleges that, in August 1986, after "The plaintiff objected to unpermitted construction being conducted at Oak Leaf Marina," the defendants retaliated against the plaintiff by taking certain actions to revoke the plaintiff's permit. Complaint, Count One ¶¶ 9, 16. The court has taken judicial notice of the undisputed chronology of events found at both the permit revocation hearing and on appeal that refute the plaintiff's assertions.
According to the trial court, on August 26, 1985, Oak Leaf contacted the Department concerning the plaintiff's failure to comply with his permit. Ertel, 1992 Conn. Super. LEXIS 1201, at *1. After being given this information, the Department conducted an investigation and concluded that the plaintiff's dock did not conform to the permit in four ways. Id. at 2. On December 30, 1985, as a result of this investigation, the Department sent the plaintiff a letter informing him of the violations and instructing him to comply with the permit by April 15, 1986. Id. All of these actions took place prior to the date that the plaintiff alleges that he complained to the Department about the actions of Oak Leaf. Given these undisputed judicial findings, no trier of fact could find that the defendants' actions against the plaintiff were "motivated or substantially caused by" his August 1986 Complaint regarding Oak Leaf. Given this, to the extent that the plaintiff seeks injunctive relief, the plaintiff's First Amendment claim, like his due process and equal protection claims, are hereby dismissed for failure to allege a substantial constitutional violation.
Connecticut General Statutes § 4-165 immunizes state officers or employees from suit as long as they were not acting either outside the scope of their employment or in wanton, reckless or malicious manner.
Section 4-165 provides in relevant part:
No 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 damages or injury shall present it as a claim against the state under the provisions of this chapter.
Under Connecticut law, an employee is acting "in the discharge of [his] duties" if the employee is "reasonably fulfilling the duties of employment or doing something incidental to it." Antinerella v. Rioux, 229 Conn. 479, 499, 642 A.2d 699 (1994), overruled on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003). Thus "in order to determine whether a state actor's conduct is caused in the discharge of his or her duties or within the granted statutory authority, it is necessary to examine the nature of the alleged conduct and its relationship to the duties incidental to the employment." Martin v. Brady, 261 Conn. 372, 377, 802 A.2d 814 (2002).
In Martin, the plaintiff alleged that the defendants, state police officers, while attempting to locate and arrest the plaintiff pursuant to an extradition arrest warrant, conducted two illegal searches of his home, destroyed the plaintiff's property, and physically assaulted the plaintiff. Id. at 375: The Supreme Court concluded:
None of these actions was arguably outside the scope of their employment as state police officers. The arrest of the plaintiff was sought for legitimate government interests; namely, the extradition of a fugitive, the plaintiff, pursuant to a warrant issued by the state of Florida. There was no allegation of a misuse of governmental authority for personal gain, as in Antinerella [v. Rioux, 229 Conn. 479 (1994)], nor was there any allegation of the extraneous manipulation of government authority in order to justify erroneous conduct, as this court found in Shay [v. Rossi, 253 Conn. 134 (2000)].
Id. at 378-79. In this case, the Complaint alleges that the defendants "summarily revoked the plaintiff's construction permit and ordered him to remove his entire dock." Compl. Count One ¶ 10. The Complaint does not allege that the defendants did not have the authority to revoke the plaintiff's permit; nor does it allege that the defendants acted for personal gain or in order to justfy personal conduct. Rather, the Complaint alleges that the defendants acted in retaliation for the plaintiff making a complaint to the Department concerning an abutting land owner. Am. Compl. Count One ¶ 11C. As in Martin, the defendants' actions were within the scope of their employment.
In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, 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 . . . In order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . 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.
Id. (quoting Shay v. Rossi, 253 Conn. 134, 181, 749 and 1147 (2000), overruled on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003). Given this standard, it is clear that the defendants did not act in a wanton, reckless, or malicious manner.
The Complaint fails to include numerous undisputed facts of which the court has taken judicial notice. These facts prevent any trier of facts from concluding that the defendants' conduct was wanton, reckless or malicious in even the smallest degree. The record establishes that the Department commenced an investigation of the plaintiff's compliance with his permit after receiving a complaint from Oak Leaf. Ertel, 1992 Conn. Super. LEXIS 1201, at *1. The Department investigated the complaint and determined that the plaintiff was not in compliance with his permit. Id. at *2. The Department sent the plaintiff a letter that allowed the plaintiff almost four months to bring his dock into compliance with his permit. Id. However, when that deadline passed, the Department waited more than two years before finally issuing a notice of permit revocation to the plaintiff, thus providing the plaintiff with additional time to comply with the permit. Before enforcing its notice of revocation the Department conducted an administrative hearing, id. at 4, in which the plaintiff could have addressed any of the issues that he now raises. On appeal, the trial court affirmed the decision of the adjudicator.
Given this entire factual and procedural history, it cannot be said that the defendants acted in a wanton, reckless or malicious manner. For this reason, all State law individual capacity claims against the defendants are hereby dismissed. For the reasons set forth above the Motion to Dismiss is granted.
By the court,
Aurigemma, J.