Opinion
No. CV 08-5007589 S
October 10, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#104) AND OBJECTION (#127)
On March 20, 2008, defendant Maura O'Connell, through her counsel, the Connecticut Attorney General's Office, filed this Motion. The basis of Ms. O'Connell's motion was stated, on March 20, 2008, as: "The plaintiff's claims are barred both by absolute quasi-judicial immunity and statutory immunity pursuant to Connecticut General Statutes § 4-165. Moreover, the plaintiff has failed to file the required bond for prosecution." Also, on March 20, 2008, a Memorandum of Law in Support of Motion to Dismiss was filed.
I. PROCEDURAL HISTORY
On April 2, 2008, plaintiff filed a lengthy Motion for Extension of Time (#105) to respond to Motion #104. That Motion #105 was denied by Roche, J., on April 28, 2008, and a JDNO sent to plaintiff on May 5, 2008.
On April 10, 2008, plaintiff filed a lengthy Motion for a Stay (#106) relative to consideration of Motion #104. That Motion #106 was denied by Roche, J. on April 28, 2008, and a JDNO sent to plaintiff on May 5, 2008.
During this time, culminating with his Motion for Review/Reconsideration (#108) dated May 4, 2008, plaintiff filed motions to transfer this matter. Motion #108 was denied by the Presiding Civil Judge on May 19, 2008. A subsequent motion (#110), in this series of motions, was similarly denied on June 2, 2008.
Plaintiff filed further numerous and lengthy motions approximately every week throughout May 2008, June 2008, and July 2008, culminating with a "Motion for Extension of Time (#123) to Respond" to the March 2008 Motion to Dismiss #104, (subject of this decision). The Extension (#123) was granted, for thirty days from August 18, 2008, by order of the Presiding Judge. Thus, the March 2008 Motion to Dismiss was, on August 18, 2008, scheduled for argument thirty-four days later, on the Short Calendar date Monday September 22, 2008. Plaintiff stated, in his July 22nd Memorandum in Support of his 30-day Extension of Time, that he needed that further additional time, from March 2008, to "finish preparing the Objection."
Just prior to the September 22nd scheduled hearing date, on September 15, 2008, plaintiff again filed a Motion for Extension of Time (#125). That motion printed for the September 29, 2008 Short Calendar. The March 2008 Motion to Dismiss (#104, subject of this decision) was scheduled for argument 9:30 a.m., September 22, 2008. When, at 9:39 a.m. on that date, the matter was called, plaintiff requested the court's consideration of a motion that had not yet reached the Short Calendar: #125 ( infra). In support of his latest non-calendared motion for a 7-day extension, plaintiff proffered a photocopy of a prescription for Ibuprofen. When questioned by the court, plaintiff stated he was compliant with his Ibuprofen prescription. The defendant requested the matter go forward. The court therefore denied the request for a further stay of argument on the March 2008 Motion to Dismiss (#104). The court then passed the matter for approximately one hour, until the specific time of 11:00 a.m., to allow the plaintiff the time he requested to gather his materials to present his Objection. When the matter was called, at 11:00, the plaintiff failed to appear. At 11:15, the court advised the moving party that it would take the matter on the papers.
At 2:00 p.m., the plaintiff returned to the courthouse. The Clerk's Office advised him that the court was considering the matter on the papers. The plaintiff filed his papers (Motion #127) with the Clerk's Office just prior to the close of business September 22, 2008. Therefore, in making its determination, this court has carefully considered the papers submitted by both plaintiff and defendant.
II. HISTORY OF ACTION
This Matter arises out of the 1994 foreclosure action involving the plaintiff's condominium which resulted in a judgment against Mr. Gyadu that was upheld even after "all appellate procedures including a writ of certiorari to the U.S. Supreme Court were exhausted." Memo. of Decision in Bella Vista Condo v. Gyadu, No. CV94-120500S, 1 (Nov. 1, 2001) (West, J.). The plaintiff claims that defendant, the Law Office of Eugene Melchionne (characterized in the Complaint as "FIRST DEFENDANT"), Bella Vista Condos (apparently characterized in the Complaint as "SECOND DEFENDANT") and CT Condominium Connection (characterized in the Complaint as "THIRD DEFENDANT"), engaged in improper conduct in connection with the execution of the foreclosure. Compl., p. 2 (Description of Defendants). Ms. O'Connell is not named in either the caption of the Complaint or the "DESCRIPTION OF DEFENDANTS." Id., p. 1-2.
To the extent the plaintiff makes any allegations involving Ms. O'Connell, they involve her issuance of an ejectment order following a ruling by the Superior Court denying all of the plaintiff's outstanding legal challenges. Id., p. 6-7, ¶¶ (6iii)-(6vi); p. 18, ¶¶ 3, 5, 6; see Memo. of Decision in Bella Vista Condo v. Gyadu, No. CV94-120500S, 1 (Nov. 1, 2001) (West, J.). Mr. Gyadu claims that Attorney Melchionne and Ms. O'Connell "collaborated and conspired" to issue the ejectment order, which the plaintiff claims is void and did not provide him sufficient notice. Id. He also apparently claims that Ms. O'Connell violated his right to due process by not allowing sufficient time to receive the Superior Court's Memorandum of Decision before issuing the ejectment order. Compl., p. 19, ¶ 6. Although his prayer for relief does not make any reference to Ms. O'Connell, the plaintiff seeks injunctive relief relating to his property involved in the execution of the judgment — which he makes no allegation defendant O'Connell was involved in — and somewhere between $18,000,000 and $37,000,000 in compensatory and punitive damages from all the defendants. Compl., pp. 21-22.
III. ARGUMENT A. Standard for a Motion to Dismiss
"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 (1991) (internal quotation marks omitted.). A motion to dismiss may be brought to assert, inter alia, "lack of jurisdiction over the subject matter . . . lack of jurisdiction over the person . . . [and] insufficiency of service of process." 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 (2002) (citation omitted; internal quotation marks omitted).
B. Defendant O'Connell is Protected by Both Absolute and Statutory Immunity
It is the court's determination that the present matter, brought against defendant O'Connell, a Superior Court Clerk, based on actions she took that were integrally related to the judicial process shall be dismissed on grounds of absolute quasi-judicial immunity and, to the extent any claims are not barred by absolute immunity, statutory immunity pursuant to Connecticut General Statutes § 4-165. See, e.g., Manifold v. Ragaglia, 94 Conn.App. 103, 113-14 (2006) ("Claims involving . . . statutory immunity, pursuant to § 4-165, implicate the court's subject matter jurisdiction."); Day v. Smith, 2008 Conn.Super.LEXIS 319. *16-17 (Feb. 11, 2008) (holding that absolute quasi-judicial immunity is properly raised in motion to dismiss and citing several cases to same effect). To the extent defendant O'Connell is referenced at all in the complaint, it is based on her performance of actions that were integral to the judicial process in connection with the Execution of Ejectment. The gravamen of the plaintiff's claim is that defendant O'Connell issued the Execution of Ejectment too quickly. Compl., pp. 7, 18-19. As the district court held in dismissing the plaintiff's federal action against defendant O'Connell based on the same conduct, "[b]ecause this challenge relates entirely to the court's power to control its own docket, the defendant is entitled to absolute immunity." Recommended Ruling on Defendant's Motion for Summary Judgment in Gyadu v. O'Connell, 3:02-CV-01271-AWT, 6-9 (Feb. 28, 2006) (citing cases); see also Order of Dismissal in Gyadu v. O'Connell, 3:02-CV-01271-AWT, 4 (Exh. 3); see also Rodriguez v. Weprin, 116 F.3d 62, 67 (2d Cir. 1997).
Although the Connecticut Supreme Court previously indicated in dicta that court clerks are not entitled to absolute immunity, it has since made clear that whether absolute immunity applies is determined by a functional approach focused on the actions at issue in the case. Compare Lombard v. Peters, 252 Conn. 623, 635 (2000) (noting parenthetically that "(absolute judicial immunity applies to law clerks but not court clerks)" (citing Olivia v. Heller, 829 F.2d 37, 40 (2d Cir. 1988)), with Carrubba v. Moskowitz, 274 Conn. 533, 543 (2005) (adopting functional approach). That is consistent with the Second Circuit's approach, which the district court applied in holding that Defendant O'Connell was entitled to absolute immunity based on the same conduct at issue here. See Rodriguez, 116 F.3d at 67; Olivia v. Heller, 829 F.2d 37, 39-40 (2d Cir. 1988) (noting that "courts have granted absolute immunity to court clerks where they were performing discretionary acts of a judicial nature" as opposed to ministerial functions).
To the extent the plaintiff asserts state law claims against defendant O'Connell that are not within the scope of absolute quasi-judicial immunity, those claims are dismissed based on statutory immunity pursuant to Connecticut General Statutes § 4-165. Connecticut General Statutes § 4-165 (providing in relevant part that "[n]o 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"). The plaintiff alleges, at most, only that defendant O'Connell improperly acted within the scope of her duties with regard to the Execution for Ejectment. His claims do not rise to the level of willful, wanton or malicious conduct necessary to overcome defendant O'Connell's statutory immunity. See, e.g., Martin v. Brady, 261 Conn. 372, 377, 380-81 (2002) (holding that defendants were entitled to § 4-165 immunity where plaintiff alleged defendants acting pursuant to a warrant allegedly obtained based on false affidavit forcibly entered his home, "striking and pushing him to the floor after he submitted to arrest" and "smashed windows and broke down doors" during their search).
Motion to Dismiss (#104) is granted, Objection (#127) is overruled.
CT Page 16410