Opinion
No. CV-10-5035130
February 8, 2011
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The plaintiff alleges that the Grievance Panel violated his constitutional and civil rights by conspiring with the prosecutor against whom he filed a grievance and dismissing the grievance complaint without investigation. The defendants have moved to dismiss on the grounds that the court lacks subject matter jurisdiction to hear this plaintiff's complaint because his claims are barred by 1) the doctrine of sovereign immunity, 2) absolute quasi-judicial immunity, 3) statutory immunity under Connecticut General Statutes § 4-165, and 4) are inadequate to sustain a case for individual liability under 42 U.S.C. § 1983.
Facts
The plaintiff is an inmate in the custody of the Connecticut Department of Corrections after he was convicted by a jury of "age differential" sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2). The plaintiff appealed his conviction, claiming that the "trial court (1) abused its discretion by permitting the state to amend the information, after trial had commenced, to expand the time frame of the charge of "age differential" sexual assault and (2) denied the defendant his constitutional right to effective assistance of counsel by failing to undertake an adequate inquiry into the defendant's complaints regarding his counsel's representation." State v. Grant, 83 Conn.App. 90, 92 (2004). The conviction was affirmed.
In November 2005, the plaintiff filed a complaint of prosecutorial misconduct with the Grievance Panel against the prosecutor who prosecuted him in State v. Grant, supra. The Grievance Panel determined that probable cause did not exist as to the plaintiff's complaint and dismissed it.
In the present action the plaintiff claims that the Grievance Panel violated his rights in the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983 by conspiring with the prosecutor to dismiss his complaint without investigating it. He claims that the prosecutor withheld exculpatory evidence which would have impeached the complaining witness and created a reasonable doubt in the minds of the jury. He further alleges that the Grievance Panel is biased against him and is "a part of the [fascist] movement in the Conn. Judicial system here in Connecticut." Complaint, p. 2.
In addition to the appeal referred to above, the plaintiff also brought a habeas petition, Grant v. Warden, 2006 Conn.Super. LEXIS 1415 (May 16, 2006, DeMayo, J.T.R.) wherein the court stated:
In a two-count petition, this inmate seeks habeas corpus relief alleging ineffective assistance of his trial counsel. After a jury trial, he was convicted of sexual assault in the first degree (two counts), sexual contact with a victim under the age of 16 and having intercourse with a victim under the age of 13. The victim was his daughter.
On May 16, 2002, he received a total effective sentence of 30 years.
The allegations of ineffective assistance are that trial counsel did not introduce into evidence the complainant's medical records, the "rape kit" report, nor did he subpoena her treating physician or other medical providers.
Judge DeMayo found that there was no ineffective assistance of counsel, and further stated:
The petitioner gave a written statement to the police after they responded to the sexual assault complaint. In that statement he admits the January 31st offense. (Exhibit 4.) Significantly, the victim's trial testimony as to the assault is virtually identical to the petitioner's version. His statement was before the jury.
This fact, coupled with the testimony of the child's mother to the effect that the petitioner admitted at the very least an attempted sexual assault, would have presented trial counsel with an impossible tack.
The plaintiff did not raise the issue of prosecutorial misconduct in either his appeal or his habeas petition when he could and should have done so. Moreover, it appears that the plaintiff was convicted in part due to his own confession.
Discussion of the Law and Ruling
The defendants have moved to dismiss this action on the grounds that the plaintiff's claims are barred by 1) the doctrine of sovereign immunity, 2) absolute quasi-judicial immunity, 3) statutory immunity under Connecticut General Statutes § 4-165, and 4) are inadequate to sustain a case for individual liability under 42 U.S.C. § 1983.
"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." Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 346, 977 A.2d 636 (2009). A motion to dismiss may be brought to assert, inter alia, "lack of jurisdiction over the subject matter." Practice Book § 10-31(a). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
The Connecticut Supreme Court has long recognized that the common-law doctrine of sovereign immunity bars suit against the State, except where the State, by appropriate legislation, consents to be sued. Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003); Canning v. Lensink, 221 Conn. 346, 349, 603 A.2d 1155 (1992); Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977); State v. Kilburn, 81 Conn. 9, 11, 69 A. 1028 (1908). "[S]overeign immunity . . . has deep roots in this state and our legal system in general, finding its origin in ancient common law." DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007).
"A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." Lyon v. Jones, 291 Conn. 384, 396, 968 A.2d 416 (2009). "The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property." Lyon, 291 Conn. at 396-97; Miller, 265 Conn. at 314. Accordingly, 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." Shay v. Rossi, 253 Conn. 134, 165, 749 A.2d 1147 (2000), overruled on other grounds, Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003).
The Connecticut Supreme Court has recognized that the doctrine of sovereign immunity applies both to the State as an entity and to its officers and agents. Schub v. Dept. of Social Services, 86 Conn.App. 748, 862 A.2d 382, cert. denied, 273 Conn. 920 (2005); Columbia Air Services, Inc. v. Department of Transportation, 293 Conn. 342, 977 A.2d 636 (2009). This is "because the state can act only through its officers and agents, [and therefore] a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." Columbia Air Services, 293 Conn. at 349.
Exceptions to the doctrine of sovereign immunity "are few and narrowly construed." Columbia Air Services, 293 Conn. at 349. "There are three exceptions: (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." Columbia Air Services, 293 Conn. at 349, quoting DaimlerChrysler Corp., 284 Conn. at 720-72.
The plaintiff's claims do not fit within any of the three narrow exceptions to sovereign immunity. The legislature has not waived the state's sovereign immunity. The Connecticut Supreme Court has held that a plaintiff seeking money damages against the State can only pierce the protection of sovereign immunity by first seeking permission to sue the State from the claims commissioner. Miller v. Egan, 265 Conn. 301, 317, 828 A.2d 549 (2003). The plaintiff has not brought any of his claims for monetary damages to the claims commissioner. The defendants argue that the plaintiff may not circumvent the claims commissioner and proceed directly to Superior Court. The court agrees.
The second and third exceptions apply solely to claims for declaratory and injunctive relief. "For a claim made pursuant to the second exception, complaining of unconstitutional acts, [the Court] require[s] that the allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests." Columbia Air Services, 293 Conn. at 350 (internal quotation marks and brackets omitted). "For a claim under the third exception, the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations." Columbia Air Services, 293 Conn. at 350.
The plaintiff's complaint alleges violations of his Eighth and Fourteenth Amendment rights. However, mere assertions that his rights have been violated will not pierce the protection of sovereign immunity. See Rodriguez v. Moscowitz, 2008 Conn.Super LEXIS 525*14 (March 6, 2008, Cosgrove, J.).
In this case the plaintiff was convicted by a jury, that conviction was upheld on appeal and the plaintiff's habeas petition was unsuccessful. The plaintiff may pursue his claim for prosecutorial misconduct through a habeas petition. He has no liberty or property interest in his complaint to the Grievance Panel. See Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 504, n. 6, 503 A.2d 1161 (1986). Without more, the plaintiff's bald assertions that his constitutional rights have been violated are insufficient to defeat the protection provided by sovereign immunity under the second exception to sovereign immunity.
Similarly, the plaintiff's claims for injunctive relief do not fall within the third exception to sovereign immunity: that an officer of the State acted in excess of its statutory authority. "A claim under this exception must do more than make a conclusory allegation that the defendants' conduct was in excess of their statutory authority; it must allege facts that reasonably support such an allegation." Columbia Air Services, 293 Conn. at 354.
For the foregoing reasons, the complaint must be dismissed because the claims alleged therein are barred by sovereign immunity.
The defendants also claim that they are protected by quasi-judicial immunity and that the complaint is also subject to dismissal because it is barred by absolute immunity.
The doctrine of absolute judicial immunity declares that a judge may not be subject to a civil suit for actions taken in his capacity as a judge. Pierson v. Ray, 386 U.S. 547 553 (1967); Lombard v. Peters, 252 Conn. 623, 630, 749 A.2d 630 (2000). The doctrine is based on the rationale that a judge must be free to exercise his "judicial duties without fear of reprisal, annoyance or incurring personal liability." Lombard v. Peters, supra.
Quai-judicial immunity has been extended to state officials other than judges who perform functions integral to the judicial process. Carubba v. Moskowitz, 274 Conn. 533, 542, 877 A.2d 773 (2005). The proceedings of the Statewide Grievance Committee are judicial in nature and its members are entitled to absolute judicial immunity from liability for duties performed in connection with those proceedings. Dixon v. Statewide Grievance Committee, 200 Conn.Super LEXIS 3122, *8 [ 29 Conn. L. Rptr. 36] (Nov. 27, 2000, Silbert. J.). In Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554-55, 663 A.2d 317 (1995), the Court stated:
It is well established that the judicial branch has the inherent power to investigate the conduct of an officer of the court. Grievance Committee v. Broder, 112 Conn. 263, 273, 152 A. 292 (1930). "The Superior Court possesses inherent authority to regulate attorney conduct and to discipline the members of the bar. See State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980) [overruled on other grounds by State v. Powell, 186 Conn. 547, 442 A.2d 939 (1982)]; Lublin v. Brown, 168 Conn. 212, 228, 362 A.2d 769 (1975); Heiberger v. Clark, [ 148 Conn. 177, 182-83, 169 A.2d 652 (1961)]; Grievance Committee of the Bar of New Haven County v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941); In re Kone, 90 Conn. 440, 442, 97 A. 307 (1916); In re Durant, 80 Conn. 140, 147, 67 A. 497 (1907). The judiciary has the power to admit attorneys to practice and to disbar them; In re Application of Griffiths, 162 Conn. 249, 252, 294 A.2d 281 (1972), rev'd on other grounds, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); CT Page 4849 Heiberger v. Clark, supra, 185-86; In re Durant, supra; to fix the qualifications of those to be admitted; In re Application of Griffiths, supra; Heiberger v. Clark, supra [185-86]; and to define what constitutes the practice of law. State Bar Assn. v. Connecticut Bank Trust Co., [ 145 Conn. 222, 232, 140 A.2d 863 (1958)]. In the exercise of its disciplinary power, the Superior Court has adopted the Code of Professional Responsibility. Practice Book, pp. 1-52 (as amended 1982).fn.15" Heslin v. Connecticut Law Clinic of Trantolo Trantolo, 190 Conn. 510, 523, 461 A.2d 938 (1983).
In addition, a comprehensive disciplinary scheme has been established to safeguard the administration of justice, and designed to preserve public confidence in the system and to protect the public and the court from unfit practitioners. In re Durant, supra, 80 Conn. 147-48. General Statutes § 51-90g and the parallel rules of practice "authorize the grievance committee to act as an arm of the court in fulfilling this responsibility." Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 239, 558 A.2d 986 (1989).
Absolute quasi-judicial immunity for members of state grievance committees has been recognized in many federal courts including the Second Circuit Court of Appeals. See Rosenfeld v. Clark, 586 F.Sup. 1332 (D.Vt. 1984), aff'd mem., 760 F.2d 253 (2d Cir. 1985). In Bishop v. State Bar of Texas, 791 F.2d 435, 438 (5th Cir. 1986) the Court held that due to "the importance of the disciplinary process to the judiciary, courts have afforded broad immunity to members of bar grievance committees and their staff." In Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966), the Court stated, "As an arm of the Washington Supreme Court in connection with disciplinary proceedings, the Bar Association is an `integral part of the judicial process' and is therefore entitled to the same immunity which is afforded to prosecuting attorneys in the state."
The plaintiff complains that the members of the Grievance Panel failed to investigate his complaint and conspired with the prosecutor against him. The alleged conduct was within the scope of the duties which the members of the Grievance Panel were charged with performing. Consequently, the complaint may also be dismissed because it is barred by absolute immunity.
The defendants assert that to the extent this case was brought against the members of the Grievance Panel in their individual capacities, the claims must be dismissed because of statutory immunity. "The doctrine of [statutory] immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002). "Statutory immunity under § 4-165 applies where sovereign immunity does not apply." Shay v. Rossi, 253 Conn. 134, 164 (2000), rev'd on other grounds, 265 Conn. 301 (2003). Under Connecticut General Statutes § 4-165, no state officer or employee shall be personally liable for damages caused in the discharge of their duties unless their actions were wanton, reckless or malicious. The Legislature has specifically included all appointees to the Statewide Grievance Committee in its definition of "state officers and employees." Connecticut General Statutes § 4-141.
In Martin v. Brady, supra at 377, 380-81, the Court held that the defendants were entitled to § 4-165 immunity even though the plaintiff alleged that acting pursuant to a warrant based on a false affidavit they had forcibly entered his home, "striking and pushing him to the floor after he submitted to arrest" and "smashed windows and broke down doors" during the search. In this case when the complaint is viewed in a manner most favorable to the plaintiff, it does not allege that the members of the Grievance Panel acted outside the scope of their duties or in a wanton, reckless or malicious manner. Therefore, the complaint must also be dismissed insofar as it makes claims against the defendants in their individual capacity.
As a final ground for dismissal, the defendants argue that the plaintiff has failed to state a claim under 42 U.S.C. § 1983. Such an argument would be better suited to a motion to strike the complaint.
For the reasons set forth above, the Motion to Dismiss is granted.