Opinion
Civil No. 3:01CV1330 (AVC)
April 18, 2002
RULING ON THE DEFENDANTS' MOTIONS TO DISMISS
This is an action for damages brought pursuant to 42 U.S.C. § 1983 alleging violations of the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. The action also seeks damages based on common law precepts concerning intentional and negligent infliction of emotional distress and assault and battery. The plaintiffs allege that defendant, David Avery, a special deputy sheriff, violated their constitutional rights when he chased them at a high speed and fired at least five shots at their vehicle. In addition, the plaintiffs allege that defendant, Thomas White, the high sheriff of Windham County, failed to properly train, supervise, or discipline his special deputy sheriffs. Further, the plaintiffs allege that the sheriff's advisory board of the state of Connecticut (the "advisory board") failed to establish a training program for deputy sheriffs and special deputy sheriffs regarding the use of deadly or excessive force.
The defendants, White and Avery, in their official capacities, and the advisory board, now move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint for failure to state a cause of action upon which relief can be granted. The defendants also move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficiency of service of process.
The issues presented are: 1) whether the advisory board is a state agency for Eleventh Amendment purposes; 2) whether defendants, in their official capacities, are immune from suit in federal court; and 3) whether the plaintiffs properly served the defendants in this action. For the reasons hereinafter set forth, the court concludes that: 1) the advisory board is a state agency for Eleventh Amendment purposes; 2) Eleventh Amendment immunity attaches to individuals sued in their official capacities; and 3) the defendants were properly served. Accordingly, the motion is granted as to the advisory board and White and Avery in their official capacities. The complaint remains against White and Avery in their individual capacities.
FACTS
The complaint alleges the following. The plaintiff, Heather Horton, is an individual and a resident of Hartford, Connecticut. The plaintiff, Ernest Tucker, is an individual and a resident of Newport, Rhode Island. The defendant, White, who was employed as the high sheriff of Windham County, appointed the defendant, Avery, as a special deputy sheriff for Windham County.
The General Assembly created the advisory board pursuant to Conn. Gen. Stat. § 6-32a. The advisory board's responsibilities included, among other things, establishing and maintaining a training program for deputy sheriffs and special deputy sheriffs. See Conn. Gen. Stat. § 6-32b(2) repealed by P.A. 00-99, §§ 139, 140 153 (2000).
The advisory board, which existed at the time of the alleged conduct, has since been abolished. See Conn. Gen. Stat. § 6-32a repealed by P.A. 00-99, §§ 139, 140, 153 (2000).
On October 30, 1999, at approximately 9:00 p.m., the complaint alleges that Horton, with Tucker in the front passenger seat, was driving west on Route 6 in Brooklyn, Connecticut. The complaint alleges that Avery began following them, and despite oncoming traffic, made several attempts to pull alongside their vehicle. When Avery succeeded in pulling alongside Horton's vehicle, the complaint alleges that he began yelling, and specifically that he yelled "white power".
The complaint alleges that Avery then rammed the rear of Horton's vehicle, at which point they decided to turn back toward Rhode Island for refuge. Avery attempted to block their way with his vehicle, and at this point began firing shots at Horton's vehicle. Avery followed Horton's vehicle for several miles, and continued to try to pull alongside her vehicle, at times approaching speeds of 100 miles per hour. Avery fired additional shots at the plaintiffs, hitting one of the tires of Horton's vehicle. Despite the shredded rear tire, Horton continued to drive and finally stopped at a gas station in Foster, Rhode Island, approximately twenty-five miles from where the incident began.
The complaint alleges that Horton and Tucker ran into the gas station yelling for help. Tucker attempted to barricade the door and locked the door as Avery put his gun to the window and threatened to kill Tucker. Avery went to a bar next door where he identified himself as a police officer and indicated that he had been pursuing felony suspects. When the police arrived, the plaintiffs were handcuffed and brought to the police station where they were interrogated and asked to retrace the entire route.
STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) must be granted if a plaintiff has failed to establish subject matter jurisdiction. "Federal courts are empowered to hear only those cases that (1) are within the judicial power of the United States, as defined by the Constitution, and (2) that have been entrusted to them by a jurisdictional grant by Congress." Wright Miller, Federal Practice and Procedure § 3522 (1984); see also Owen Equip. Erection Co. v. Kroger, 437 U.S. 365 (1978). In analyzing a motion to dismiss under Rule 12(b)(1), the court must accept all well pleaded factual allegations as true and must draw reasonable inferences in favor of the plaintiff. Capital Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993). If the district court concludes that it does not have subject matter jurisdiction, it must dismiss the case. See Golden Hill Pauqussett Tribe of Indians v. Weicker, 839 F. Supp. 130, 136 (D. Conn. 1993).
While the defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), the court concludes that it is more appropriate to consider this action under Rule 12(b)(1).
DISCUSSION
I. Sheriff's Advisory Board and the Eleventh Amendment
The advisory board argues that, as a state agency, it cannot be sued for money damages because it has not waived its Eleventh Amendment sovereign immunity.
The plaintiffs respond that the advisory board should not be considered an arm of the state, and consequently, sovereign immunity should not attach. Specifically, the plaintiffs argue that because the state did not appropriately supervise the advisory board and allowed the board broad authority (leading to incidents such as this one), the board should not be considered an arm of the state.
"Generally, a suit for the recovery of money may not be maintained against the state itself, or an agency or department of the state, unless the state has waived its sovereign immunity under the Eleventh Amendment." Cook v. McIntosh, 97cv773, 1998 WL 91066, at *5 (D. Conn. Feb. 20, 1998) (citing Florida Dept of State v. Treasure Salvors, 458 U.S. 670, 684 (1992)). In this district, the advisory board is a state agency for purposes of Eleventh Amendment analysis. See Walker v. Connecticut, 106 F. Supp.2d 364, 369 (D. Conn. 2000) (internal citations omitted) ("There can be no doubt that the Sheriff's Advisory Board [was] a state agency, as it answer[ed] to the Department of Administrative Services and other state agencies, as required."); see also Philips v. Egan, No. 3:99CV961, 2000 WL 436693, at *4 (D. Conn. Feb. 22, 2000). Here, the court agrees with prior decisions in this district that have determined that the advisory board was a state agency. Accordingly, the court concludes that sovereign immunity attaches to the advisory board, and therefore, the court lacks jurisdiction with respect to the action against it.
II. White and Avery in their Official Capacities
White and Avery seek to dismiss the complaint against them in their official capacities because, they argue, Eleventh Amendment sovereign immunity should protect them from an official capacity suit.
The plaintiffs respond that White and Avery are not protected by the Eleventh Amendment because the advisory board was not an arm of the state, therefore sovereign immunity should not attach to these defendants in their official capacities.
It is well settled that a state official, when sued in his official capacity, is not considered a person for purposes of § 1983, and therefore, an action will not stand against him in this capacity. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). The court has already held that the advisory board is, indeed, an arm of the state. See, e.g., Walker v. Connecticut, 106 F. Supp.2d 364, 369 (D. Conn. 2000). Because White and Avery were both employed by the state, and a suit against a state employee in his official capacity is the same as a suit against the state itself, see Will, 491 U.S. at 71, the state's sovereign immunity attaches to these defendants. Accordingly, the complaint may not stand against White and Avery in their official capacities.
III. Service of the Complaint
Although the defendants' motion does not clearly indicate which defendants it argues were improperly served, the court assumes that it refers to Avery who was an inmate at the Hartford correctional institution at the time that plaintiffs issued service. The defendant argues that service was insufficient because the Hartford correctional institute was not his usual place of abode.
The defendants' motion to dismiss does not indicate any alleged insufficiency of service with regard to White, the other remaining defendant.
A defendant is properly served when he is served at his "usual place of abode." Conn. Gen. Stat. § 52-57(a). "`Abode' . . . is the place where the defendant would most likely have knowledge of service of process and is generally recognized as the place where he is living at the time of service." Grayson v. Wofsey, Rosen, Kweskin Kuriansky, 478 A.2d 629, 630 (Conn, Super. 1984) (internal citations omitted). Because the Hartford correctional institute was the place where Avery was living at the time of service, service was proper. The motion to dismiss, as to Avery, is therefore DENIED.
CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss (document No. 7) is granted as to the sheriff's advisory board of the state of Connecticut, as well as, White and Avery, in their official capacities only. The complaint remains viable as to defendants White and Avery in their individual capacities.
It is so ordered, this 18th day of April, 2002, at Hartford, Connecticut.