Opinion
No. CV 09-5027787S
November 12, 2009
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
The Defendant has filed a Motion to Dismiss. The Court first will discuss the factual allegations made in the complaint.
In this case the Plaintiff has sued the Defendant who is an Assistant Appellate Court Clerk. The actions which form the basis of the complaint involve two appeals. One case was Hanton v. Project More, AC29868. The other is Hanton v. Williams, AC30074. In the Project More case the appellee filed a Motion to Dismiss in the Appellate Court. The Plaintiff filed an objection but the Plaintiff alleges the papers filed were returned by Ms. Gworek on June 13, 2008 because handwritten pleadings were not accepted by the Court without the Court's permission and an original and 15 copies had to be filed. On June 20th the plaintiff alleges he filed a motion for leave to file handwritten pleadings and waiver of the 15-copy requirement due to his being an indigent prisoner without access to the necessary resources to comply with the requirements. It is then alleged that on July 20, 2008 Ms. Gworek returned this motion stating it was not in compliance with "PB § 66-2 (format) case dismissed on July 9, 2008, and original and 15 copies required." The plaintiff then alleges that Ms. Gworek "deliberately failed to return plaintiff's Motion for Leave and objection in a timely fashion causing the appeal to be dismissed."
As to the Williams case the plaintiff alleges the defendant "issued an order directing the plaintiff to file appellant's preliminary statement of issues, designation of pleadings, docketing statement, statement re transcripts and draft judgment on or before August 14, 2008 or his appeal will be dismissed." On August 8th the plaintiff alleges he filed a motion for extension of time to file the foregoing documents pursuant to PB § 66-1. He also alleges he attached a Motion for Leave to file a handwritten motion because he could not comply with PB §§ 66-2 and 66-3 due to his status and lack of access to a typewriter or computer. On August 15th Ms. Gworek returned the motions to the plaintiff saying they could not be accepted because permission to file hand written motions are not permitted without leave of court; original and 15 copies must also be filed. The plaintiff alleges further that on September 8, 2008 the defendant dismissed the appeal.
In what is then styled as "count one" the plaintiff claims that due to the defendant's actions he was denied access to the Court. In his prayer for relief the plaintiff claims that as a direct result of the defendant's actions he has been damaged in the amount of $15,000 or more.
Several arguments are raised by the defendant which the Court will attempt to discuss.
A
First the defendant argues that the complaint is barred by the doctrine of sovereign immunity. The defense of sovereign immunity may be raised by way of a motion to dismiss in an action considered to be against the State. Duguay v. Hopkins, 191 Conn. 222, 227 (1983), Columbia Air Services v. Dept. of Transportation, 293 Conn. 342, 350 (2009).
In Sentner v. Bd of Trustees, 184 Conn. 339, 342-43 (1981) the Court said: "we have long recognized the common law principle that the State cannot be sued without its consent . . . we have have also recognized that because the State can act only through its officers and agents, a suit against the State officer concerning a matter in which the officer represents the State is, in effect, against the State . . . Therefore, we have dealt with such suits as if they were solely against the State and have referred to the State as the defendant," see Miller v. Egan, 265 Conn. 301, 313 (2003).
In line with this reasoning the Court in Miller v. Egan also said that a plaintiff "who seeks to bring an action for monetary damages against the State must first obtain authorization from the claim commissioner" 265 Conn. at p. 317. There seems to be no dispute that this was not done here.
In Lyon v. Jones, 291 Conn. 384, 397 (2009), the Court said that "to circumvent the doctrine of sovereign immunity a plaintiff must show that (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the State's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the State officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute."
If in fact this action can be characterized as being brought against Ms. Gworek in her official capacity and can thus be characterized as an action against the State, sovereign immunity would apply to require its dismissal. The Court is not aware of any statutory waiver explicit or implied in this case and the claim for relief lies in monetary damages; there is no claim for declaratory judgment or injunctive relief. And as noted the defendant's argument that there was no attempt to bring the matter to the claims commissioner is unrebutted.
But the question remains as to how to determine whether so it has been brought against a state official acting in his or her official capacity.
In Spring v. Constantino, 168 Conn. 563, 568 (1975), The Court set forth the criteria for determining whether a suit is brought against a state employee in his or her individual capacity or official capacity. The Court noted that "the fact that the State is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent." The Court then set forth what it said was the "vital test" to determine whether an action is one against the State and thus cannot be maintained. The four criteria are "(1) a State official has been sued; (2) the suit concerns some matter in which the official represents the State; (3) the State is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the State or subject it to liability" (all of this is quoted and referred to in Miller v. Egan, at 265 Conn. Page 308).
Applying his analysis the court would note that Ms. Gworek is a State official and the suit concerns a matter in which she represented the State. Nowhere in the complaint does the plaintiff allege he is suing Gworek in her individual capacity. The complaint notes that Gworek "maintains an address at 231 Capitol Avenue, Hartford, Conn 06106" — the address of the Appellate Clerk's Office." In fact Ms. Gworek was not served individually; the return indicates that the marshal left a copy of the complaint with an Associate Attorney General who is "duly authorized to accept service for said defendant." Service was made at 55 Elm Street, Hartford. That address is where the Attorney General's Office is located. Also the judgment, although "nominally" against Gworek, a State official will operate to "control the activities of the State." The manner in which Gworek performs her job and interprets her authority under statutory and Practice Book provisions is placed in issue by the allegations of the complaint and there is no allegation that she was not purporting to perform her duties or, more exactly, not in effect representing the State through her actions.
As to the fourth criteria in Lyon v. Jones, it should be noted that when a claim is made for monetary damages not injunctive relief, and it is alleged or implied by a liberal view of the pleadings that the State official acted without statutory authority or even in violation of constitutional rights such allegations still require a waiver of immunity from the claims commissioner, Miller v. Egan, 265 Conn pp 314-15. In other words in the analysis to determine whether an action is one against the State, i.e. against a State official acting in her official capacity, the fourth criteria referred to in Spring v. Constantino, supra and adopted in Miller v. Egan — will any judgment operate to control the State's activities — is not precluded by an allegation that a State official did not have authority to act.
The Court concludes that this suit is against Ms. Gworek in her official capacity. Sovereign immunity applies and waiver of such immunity was sought from the claims commissioner prior to instituting this litigation. Conclusory allegations that this claim lies against Gworek in her individual capacity will not permit the plaintiff to now characterize the claim against Gworek as one made against her in her individual capacity — that would not be fair of Miller v. Egan, at 265 Conn page 310.
The matter should be dismissed on this basis.
B
In order to completely address the issues raised the Court will assume the suit is brought against Gworek in her individual capacity and in a final section discuss the defense of absolute judicial immunity and whether it can be relied upon by Gworek in an individual capacity claim.
If in fact this suit is considered to be brought against Ms. Gworek in her individual capacity then statutory immunity not sovereign immunity can be claimed by her. Section 4-165 CGSA provides that "(a) no state officer or employee shall be personally liable for damage or injury, not wanton or reckless or malicious, caused by the discharge of his or her duties or within the scope of his or her employment."
(i)
The Court will first discuss the plaintiff's Project More appeal. A motion to dismiss was filed in this case on May 20, 2008 and an objection on May 30, 2008 according to the plaintiff. The plaintiff then alleges in paragraph 7 of his complaint that on June 20, 2008 he filed a motion for leave to file handwritten pleadings and waive the 15-copy requirement of PB § 66-3.
The parties seem to agree that the motion to dismiss was granted 7/9/08 and the motion for leave to waive PB § 66-2 requirements and the objection to the motion to dismiss was returned on 7/10/08. Regarding the motion for leave, PB § 60-3 would appear to give the appellate courts power to suspend the requirements of its rules for "good cause." The Court believes, however, that it can take judicial notice of the fact that the plaintiff's motion for leave although dated June 20, 2008 was date stamped July 7, 2008, a mere two days before the matter was dismissed which would seem to belie the plaintiff's claim that Gworek "deliberately failed to return the plaintiff's motion for leave and objection in a timely fashion causing the appeal (Project Moore appeal) to be dismissed." — whatever that exactly means.
None of the foregoing rises to the level of wanton, reckless, or malicious behavior which would bar immunity under § 4-165. The Practice Book provisions allowing waiver of the requirements of a provision like PB § 66-2 are permissive not mandatory. There is no allegation that Gworek acted the way she did regarding dismissal of the Project More appeal due to personal animus toward the plaintiff or for her own personal gain, for example.
The only case the Court could find that is remotely similar to the allegations in this case is Witczak v. Gerald, 69 Conn.App. 106 (2002). There the plaintiff was denied tenure and dismissed from his teaching position at the University of Connecticut. He sued the dean and two members of the tenure advisory counsel. The Appellate Court reversed the trial Court's conclusion that § 4-165 provided immunity to the three defendants based on the following lengthy rendition of the allegations of the complaint which was the object of the motion to dismiss.
In count one of his complaint, the plaintiff alleged that the defendant "intentionally interfered with [the] plaintiff's employment agreement . . ." The plaintiff alleged that the defendants refused "to adhere to procedures and protocol of the University of Connecticut during review of [the] plaintiff for tenure and in the creation of a record for tenure review . . ." The plaintiff further alleged that "[w]ith regard to the handling of plaintiff's tenure case; [the] defendants acted in bad faith, inconsistent with the power they were given and the privilege they enjoyed as members of the Dean's Advisory Counsel and/or as the Dean." Clarifying these allegations, the plaintiff specifically alleged, inter alia, that the defendants Burgess and Makriyannis intentionally and in bad faith destroyed a letter that supported the plaintiff's candidacy for tenure. The plaintiff alleged that Burgess and Makriyannis had themselves solicited the letter, and were required under contractual terms to preserve it in a formal record which was later relied on by all other persons reviewing his candidacy. The plaintiff alleged that this was done "in order to prevent [the plaintiff] from gaining favorable recommendation for tenure." The plaintiff alleged that Burgess and Makriyannis intentionally underreported to the tenure decision makers both the amount of funding and the number of publications that the plaintiff had achieved. The plaintiff alleged that he had notified Gerald of the inaccuracies after Gerald had also recommended that the plaintiff be denied tenure, but Gerald intentionally refused "to take any steps to forward correct figures" to the persons charged with reviewing his "forward correct figures" to the persons charged with reviewing his candidacy after that point, despite his contractual duty to do so. The plaintiff alleged that Burgess and Makriyannis intentionally broke "University Laws and By-Laws . . . [by] focus[ing] almost exclusively on the number of . . . publications . . . and on the amount of grant funding" in the first place. Moreover, the plaintiff alleged that each of the defendants stood to gain school resources and enhance their own standing at the university if their bad faith and intentional misconduct were to lead to the plaintiff's dismissal.
The Court relied on the language of Shay v. Rossi, 253 Conn. 134, 182 (2000), and said that there the protections of § 4-165 were forfeited to state employees sued in their individual capacity because: "the allegations and facts were sufficient to establish that the defendants `knew that (their) actions were legally and factually unjustified . . . and that they nonetheless (engaged in these actions) . . .'" Here there is no allegation that Ms. Gworek acted pursuant to personal motive or animus toward the plaintiff or that she acted in bad faith with the sole purpose of denying his right to appeal.
The allegations of this complaint do not in the Court's opinion, allow it to find this defendant has waived the protections of § 4-165 assuming an individual capacity suit is even involved.
(ii)
The plaintiff also claims the dismissal of the appeal in the Williams case was dismissed by Ms. Gworek on September 8, 2008. The complaint alleges that on August 4, 2008 the defendant issued an order directing the plaintiff to file a preliminary statement of issues: designation of pleadings, docketing statement concerning transcripts and draft judgment before August 14 or the appeal would be dismissed. These documents are required by PB § 63-4.
On August 8th the plaintiff alleges he filed a motion for extension of time to file the foregoing documents and a motion for leave to file handwritten documents because he was indigent and incarcerated and thus unable to provide typewritten documents. On August 15, 2008 he alleges that he received notice from Ms. Gworek that handwritten documents are not permitted without permission from the Court — an original and 15 copies must be submitted. On September 8, 2008 the appeal was dismissed.
As with the Project More appeal the Court concludes as to the Williams appeal none of the alleged actions of the defendant Gworek, even if incorrect in that they did not take account of his incarcerated and indigent status, cannot be said to be wanton, reckless, or malicious. Therefore the protections of § 4-165 of the General Statutes must be afforded Gworek. There is no allegation, for example, that Gworek's actions were motivated by personal animus, racial bias, bias based on the status of the plaintiff or other improper motivation that could have nothing to do with the ambit of her responsibilities. Mere misapplication or failure to apply ameliorative provisions of practice book or statutory provisions, standing alone will not suffice to subject clerical staff to suit or we will have to build a duplicate set of court houses to handle problems arising there from.
Also it is interesting to note that in neither of these cases has it been brought to the court's attention that the plaintiff sought to have the Court reconsider the dismissals.
C
If an individual capacity suit is involved here, the defendant also argues that she is entitled to absolute judicial immunity. Subject matter jurisdiction is implicated and thus such an immunity claim "is properly considered in a motion to dismiss." Judge Bellis reached this conclusion after an analyzing Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787 (2005); Rioux v. Barry, 283 Conn. 383, 343 (2007), see Day v. Smith, 2008 Ct.Sup. 2265 (2008).
Turning to the merits and policy behind such a grant of immunity, Chadha said that the purpose of absolute immunity "is the same as the purpose of (sovereign immunity) . . . to protect against the threat of suit." (underline by this Court). In Delaurentis v. New Haven, 220 Conn. 225, 242 (1991), the Court said that: "the mantle of judicial immunity covers not only judges but all adjuncts to the judicial process." Lombard v. Edward J. Peters P.C., 225 Conn. 623, 631-32 (2000), noted that the determination as to whether absolute immunity applies to a particular officer in the judicial department is based on a "functional approach" — the nature of the function performed not the identity of the actor who performed it is the appropriate test. But with all that it is clear that the Lombard court reflects a cautious approach to officers to whom the absolute protection of judicial immunity applies — the protection is "limited." Thus the Court went on to say judges' law clerks are protected but not court clerks citing Oliva v. Heller, 839 F.2d 37, 40 (CA2, 1988). It noted that absolute immunity protecting prosecutors does not protect public defenders citing Spring v. Constantino, 168 Conn. 563, 566-67 (1975). The reason for the Lombard court's cautious approach about extending this concept is what it notes as "the salutary effects that the threat of liability can have . . . as well as the undeniable tension between official immunities and the rule of law," 252 Conn. at page 631.
Interestingly the defendant in its brief states that the Lombard Court "mistakenly refers to dicta from the Second Circuit case Oliva v. Heller . . . to the effect "that absolute judicial immunity does not extend to court clerks. Any argument that these (sic) cases could be interpreted to exclude court clerks from absolute judicial immunity is negated by Rodriguez v. Wepren, 116 F.3d 62, 67 (eA2, 1997)." The Court does not agree with this characterization of Second Circuit case law. Oliva makes a distinction between law clerks and court clerks which Rodriguez does not specifically overrule; in fact it cites Oliva. Oliva said that: "In contrast to court clerks who frequently perform ministerial functions, a law clerk generally performs discretionary acts of a judicial nature," id., 839 F.2d at p. 40. Rodriguez just comments that absolute immunity extends to court clerks who perform administrative functions pursuant to the explicit direction of a judicial officer, 116 F.3d at page 67.
The difficulty in this case, at least for the Court, is that apart from statements of counsel it is unclear as to how much discretion Gworek exercises. It is observed that the defendant returned the defendant's pleadings and dismissed the appeals in accordance with the Rules of Practice at the Court's direction. She was just following rules promulgated by appellate judges and set forth in the Practice Book. But then she exercises no discretion at all, for which see Oliva and contrary to Rodriguez she did not exercise her authority at "the explicit direction of a judicial officer."
Furthermore although, for example, prosecutors are held to be immune from tort liability for their conduct in court proceedings in Lombard, that Court specifically cited Restatement (2d) Torts, § 895 D, comment (c) which states immunity "may apply, for example, to a prosecuting attorney or to a clerk of court or a legislative official. The immunity existing for these officers, however, usually may not extend to improper motive." All of this leads the court to two conclusions (1) that absolute judicial immunity cannot be held to automatically apply to court clerks merely because of their status as such (2) the whole problem of the appropriateness of applying the doctrine in a case such as this is solved by applying § 4-165 and the general immunity it affords state employees which, interestingly enough provides exceptions to that immunity along similar lines as suggested to absolute judicial immunity for non-judge judicial employees in the Restatement and by adoption thereof in Lombard.
In any event, the Court concludes for the reasons previously stated that this matter should be dismissed. The Court has determined that this suit is brought against the defendant Gworek in her official capacity and is barred by sovereign immunity. If the Court is incorrect in reaching this conclusion and the claim can be viewed as an individual capacity suit, the case should still be dismissed pursuant to § 4-165. The Court has not relied on the doctrine of absolute judicial immunity in reaching its decision. Also it has not considered the affidavit of Mr. Newberger.