Opinion
No. CV 095013918
June 14, 2010
MEMORANDUM OF DECISION MOTION TO DISMISS #106
On January 7, 2010, the defendants, William Deluca, Michael Santese and Thomas Canny, filed this motion to dismiss and a memorandum of law in support. On February 2, 2010, the plaintiff, Shane Kerpen, filed a combined "motion for default" and "response to motion to dismiss." On February 4, 2010, the defendants filed a reply brief in support of their motion to dismiss and an objection to the motion for default. On March 23, 2010, the plaintiff filed a "brief in opposition of motion to dismiss."
The plaintiff alleges the following facts in his complaint. On May 19, 2008, the plaintiff pleaded guilty to four counts of bank robbery. At the plea hearing, it was disclosed on the record that information given by one of the bank tellers pertained to a different robbery, not the robberies that the plaintiff was involved with. The plaintiff informed his attorney that another robbery suspect had robbed two of the same banks that the plaintiff was accused of robbing, and that the other suspect was more violent and carried a real gun, as opposed to the facsimile weapon that the plaintiff used. After the plaintiff pleaded guilty, a presentence investigation was ordered and sentencing was scheduled for July 29, 2008.
On July 29, 2008, the plaintiff met with his attorney for a presentence investigation discovery meeting and his attorney informed him that he had received a copy of the presentence investigation report the prior evening. The report was prepared by Deluca. During the meeting, the plaintiff noticed many inconsistencies between his actions during the robberies and the report. The plaintiff noticed that the descriptions of the robberies did not match the actions that he had performed during the times that he had robbed the banks.
As the plaintiff was meeting with his attorney, he was called for sentencing. The plaintiff asked his attorney to address the inconsistencies, but his attorney did not address them at sentencing. The sentencing judge referred to one of the inconsistencies during the sentencing, and the plaintiff was sentenced to fourteen years, with five years special parole. He is currently incarcerated at Corrigan Correctional Center in Uncasville, Connecticut.
On October 8, 2009, the plaintiff filed this action. The plaintiff alleges that "PSI Investigator/Supervisor named William Deluca/counter signer; Michael Santese has done the following: (1) manufactured victim impact letters of unsourced unidentified persons, (2) created fictitious accounts of acts of crimes that contradict victim police statement accounts, (portraying self narration as victim impact statements), (3) malicious and false evidence disclosure." The complaint is devoid of allegations with respect to Canny, but the parties agree that he is a probation officer, being sued in connection with the creation of the presentence report. See Plaintiff's "Motion for Default"/"Response to Motion to Dismiss;" Defendants' Memorandum of Law in Support of Motion to Dismiss. The plaintiff seeks the following relief: (1) that he be heard on the issues contained in his complaint; (2) that the defendants be held accountable for their alleged actions; and (3) that an investigation be conducted to evaluate the defendants' alleged practices.
The court notes that the plaintiff's complaint contains the heading "Writ of Habeas Corpus." "Habeas corpus provides a special and extraordinary legal remedy for illegal detention . . . The deprivation of legal rights is essential before the writ may be issued . . . Questions which do not concern the lawfulness of the detention cannot properly be reviewed on habeas corpus . . . When a habeas petition is properly before a court, the remedies it may award depend on the constitutional rights being vindicated . . . Further, any remedy must be commensurate with the scope of the constitutional violations that have been established." (Internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 525, 876 A.2d 1178 (2005). In the present case, the relief sought by the plaintiff does not fall within the scope of a habeas petition. Accordingly, the court will proceed under Connecticut law governing non-habeas civil proceedings.
LAW OF 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter . . ." Practice Book § 10-31(a).
"[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
"When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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." (Internal quotation marks omitted.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).
DISCUSSION
The defendants move to dismiss this action for lack of subject matter jurisdiction. The defendants argue that they are probation officers being sued for conduct related to the preparation of a presentence report, which entitles them absolute quasi-judicial immunity. In his combined motion for default and response to the motion to dismiss, the plaintiff argues that the defendants were operating outside the scope of their official capacity and are therefore not entitled to quasi-judicial immunity.
In their reply brief, the defendants argue that absolute quasi-judicial immunity broadly protects probation officers while they are engaged in judicial work. The defendants argue that it is clear from the allegations of the complaint that the plaintiff's grievances arise from actions taken by the defendants in their official capacities as probation officers.
In his brief in opposition of the motion to dismiss, the plaintiff argues that this is "a 42 U.S.C. § 1983 complaint `under color of state law' being heard on a state level." The plaintiff argues that the defendants have violated his federal constitutional rights, and, thus, are not afforded immunity because the defendants were operating outside the scope of their official capacity. The plaintiff concludes that "[f]or all of these reasons I seek injunctive and declaratory relief pertaining to the contents of the report submitted by Deluca, Santese, and Canny . . ."
The court notes that the plaintiff's argument with respect to the nature of his complaint, namely, that he has brought his claim pursuant to 42 U.S.C. § 1983, is misplaced. "The United States Supreme Court has repeatedly expressed that [t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." (Internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 762, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). The plaintiff's complaint does not contain any allegations with respect to a violation of Constitutional rights, nor does it contain allegations with respect to a deprivation of the plaintiff's rights by a person acting under color of state law. Regardless, as the plaintiff himself points out, "[o]fficial immunity, whether absolute or qualified, may bar a prisoner from obtaining damages under § 1983." Brief in Opposition of Motion to Dismiss, p. VI.
I
As a threshold matter, the court must determine whether a motion to dismiss is the proper procedural vehicle for considering the defendants' claims of absolute quasi-judicial immunity. The appellate courts have explicitly reserved the issue: "It is unnecessary for us . . . in resolving the present case, to consider whether a motion to dismiss was the proper procedural vehicle by which to raise absolute immunity because that question is not presented in this appeal." Carrubba v. Moskowitz, 274 Conn. 533, 537, 877 A.2d 773 (2005); see also Carrubba v. Moskowitz, 81 Conn.App. 382, 398-99, 840 A.2d 557 (2004), aff'd, 274 Conn. 533, 877 A.2d 773 (2005). The Appellate Court has, however, noted that it is "aware that some trial courts have concluded that absolute judicial immunity can be raised properly in a motion to dismiss." (Emphasis in original.) Carrubba v. Moskowitz, supra, 81 Conn.App. 399 n. 9.
Judge Bellis previously discussed this issue in Anastasio v. Shaughnessy, Superior Court, judicial district of Fairfield, Docket No. CV 08 5017263 (September 30, 2009, Bellis, J.) [ 48 Conn. L. Rptr. 572]. "[A]lthough our appellate courts have not yet affirmatively decided whether absolute immunity bears upon a court's subject matter jurisdiction, our Supreme Court's decision in Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005), supports a conclusion that it does. In that case, the Connecticut Supreme Court held that a motion for summary judgment granted on the basis of absolute immunity is a final judgment for purposes of appeal because the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of sovereign immunity [conferred upon states] . . . that is, to protect against the threat of suit . . . Accordingly, because the doctrine of absolute immunity shares with sovereign immunity the same purpose of protecting against having to litigate at all, and because the doctrine of sovereign immunity implicates subject matter jurisdiction, this court joins the other Superior Courts that have held absolute immunity to be properly considered in a motion to dismiss . . . Other Superior Court judges have held similarly. See Mattera v. Sienkiewicz, Superior Court, judicial district of Hartford, Docket No. CV 05 4011301 (April 28, 2006, Tanzer, J.) ( 41 Conn. L. Rptr. 269); Rioux v. Barry, Superior Court, judicial district of New Haven, Docket No. CV 05 4007375 (January 3, 2006, Licari, J.) ( 40 Conn. L. Rptr. 537), rev'd in part on other grounds, 283 Conn. 338, 927 A.2d 304 (2007)." (Internal quotation marks omitted.) Anastasia v. Shaughnessy, supra, Docket No. CV 08 5017263.
The court agrees with this assessment. Accordingly, if the court determines that absolute quasi-judicial immunity extends to the defendant probation officers, the motion to dismiss must be granted for lack of subject matter jurisdiction.
II
In Carrubba v. Moskowitz, supra, 274 Conn. 533, the Connecticut Supreme Court determined that absolute immunity is afforded to attorneys appointed to represent minors pursuant to General Statutes § 46b-54. In doing so, the court examined the policy reasons underlying judicial immunity. "It is well established that a judge may not be civilly sued for judicial acts he undertakes in his capacity as a judge . . . This role of judicial immunity serves to promote principled and fearless decision-making by removing a judge's fear that unsatisfied litigants may hound him with litigation charging malice or corruption . . . Although we have extended judicial immunity to protect other officers in addition to judges, that extension generally has been very limited. This fact reflects an [awareness] of the salutary effects that the threat of liability can have . . . as well as the undeniable tension between official immunities and the ideal of the rule of law . . . The protection extends only to those who are intimately involved in the judicial process, including judges, prosecutors and judges' law clerks. Absolute judicial immunity, however, does not extend to every officer of the judicial system . . . Furthermore, even judges are not entitled to immunity for their administrative actions, but only for their judicial actions . . .
"We repeatedly have recognized that [a]bsolute immunity . . . is strong medicine . . . Therefore, not every category of persons protected by immunity are entitled to absolute immunity. In fact, just the opposite presumption prevails — categories of persons protected by immunity are entitled only to the scope of immunity that is necessary to protect those persons in the performance of their duties. [T]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties . . . In limited circumstances, however, courts have extended absolute judicial immunity to officials insofar as they perform actions that are integral to the judicial process . . . For example, because prosecutors are such an integral part of the judicial system . . . this court has repeatedly recognized that they are entitled to absolute immunity for their conduct as participants in the judicial proceeding . . . By contrast, we declined to extend immunity to public defenders, reasoning that, unlike a prosecutor, who is a `representative of the state,' and has a duty to see that impartial justice is done to the accused as well as to the state, a public defender's role is that of an adversary and his function does not differ from that of a privately retained attorney . . . In legislatively overruling [the Supreme Court decision regarding public defenders] the legislature granted public defenders only qualified immunity, impliedly deeming that level of protection to be sufficient to protect them in the exercise of their duties.
"Although the presumption is that qualified immunity is sufficient to protect most government officials in the justified performance of their duties, courts have extended absolute immunity to a variety of judicial and quasi-judicial officers. See, e.g., Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989) (court-appointed social worker), cert. denied, 493 U.S. 1072, 110 S.Ct. 1118, 107 L.Ed.2d 1025 (1990); Moses v. Parwatikar, 813 F.2d 891 (8th Cir.) (court-appointed psychologist), cert. denied, 484 U.S. 832, 108 S.Ct. 108, 98 L.Ed.2d 67 (1987); Demoran v. Witt, 781 F.2d 155 (9th Cir. 1986) (probation officer); Boullion v. McClanahan, 639 F.2d 213 (5th Cir. 1981) (bankruptcy trustee); TW Investment Co. v. Kurtz, 588 F.2d 801 (10th Cir. 1978) (court-appointed receiver); Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970) (court-appointed medical examiner), cert. denied, 403 U.S. 908, 91 S.Ct. 2217, 29 L.Ed.2d 685 (1971). The determining factor in all these decisions is whether the official was performing a function that was integral to the judicial process.
"In considering whether officials sued under 42 U.S.C. § 1983 should be accorded absolute judicial immunity, the United States Supreme Court has applied a three factor test, which we now adopt for the purpose of determining whether an attorney appointed pursuant to § 46b-54 should be accorded absolute immunity under our state common law. In its immunity analysis, the court has inquired: [1] whether the official in question perform[s] functions sufficiently comparable to those of officials who have traditionally been afforded absolute immunity at common law . . . [2] whether the likelihood of harassment or intimidation by personal liability [is] sufficiently great to interfere with the official's performance of his or her duties . . . [and 3] whether procedural safeguards [exist] in the system that would adequately protect against [improper] conduct by the official." (Citations omitted; emphasis in original; internal quotation marks omitted.) Carrubba v. Moskowitz, supra, 274 Conn. 540-43.
Utilizing the same three-factor test in the present case, the court finds that the defendants in this case are afforded absolute quasi-judicial immunity due to the nature of their alleged conduct. "The first prong of the test, the functional inquiry, by its very nature, must be performed on a case-by-case basis . . . [T]he functional inquiry ultimately hinges on the relevant functions performed by the defendant in the present case." (Citation omitted.) Id., 543-44. In the present case, the defendants are alleged to have created a presentence investigation report that contained "malicious and false" information. Thus, the court must determine whether absolute immunity should be afforded to probation officers who are performing the function of creating a presentence investigation report.
With respect to the creation of presentence report, General Statutes § 54-91a(a) provides: "No defendant convicted of a crime, other than a capital felony, the punishment for which may include imprisonment for more than one year, may be sentenced, or the defendant's case otherwise disposed of, until a written report of investigation by a probation officer has been presented to and considered by the court, if the defendant is so convicted for the first time in this state; but any court may, in its discretion, order a presentence investigation for a defendant convicted of any crime or offense other than a capital felony. This language has been adopted into Practice Book § 43-4(a). The presentence investigation is conducted pursuant to General Statutes § 54-91a(c), which provides, in relevant part: "Whenever an investigation is required, the probation officer shall promptly inquire into the circumstances of the offense, the attitude of the complainant or victim . . . and the criminal record, social history and present condition of the defendant. Such investigation shall include an inquiry into any damages suffered by the victim, including medical expenses, loss of earnings and property loss."
Considering the content of the relevant statutory provisions, a probation officer creating a presentence investigation report is an integral part of the judicial process, similar to the roles of prosecuting attorneys and attorneys appointed for minor children, both of whom have been afforded absolute immunity in the state of Connecticut. Carrubba v. Moskowitz, supra, 274 Conn. 541, 547. Pursuant to § 54-91a(a) and Practice Book § 43-3(a), the preparation of a presentence investigation report is either mandatory or at the discretion of the trial court judge in all cases with the exception of capital offenses. Once ordered, a report must be prepared by a probation officer in accordance with § 54-91a(c). See also, Practice Book § 43-4(a). The conduct of creating presentence investigation reports, which is the practice at issue in the present case, is undoubtably an integral part of the judicial process.
Practice Book § 43-4(a) provides, in relevant part: "Whenever an investigation is required or an assessment is ordered or both, the probation officer shall promptly inquire into the attitude of the complainant or the victim . . . and the criminal record, social history and present condition of the defendant. Such investigation shall include an inquiry into the circumstances of the offense and any damages suffered by the victim, including medical expenses, loss of earnings and property loss. Such assessment shall include an inquiry into the defendant's prior participation in any release programs and the defendant's attitude about participation in an alternate incarceration program."
With respect to the second element, the Connecticut Supreme Court analyzed this element with respect to attorneys appointed to represent minors in Carrubba v. Moskowitz, supra, 274 Conn. 543. "[A] substantial likelihood exists that subjecting such attorneys to personal liability will expose them to sufficient harassment or intimidation to interfere with the performance of their duties. In fact, the threat of litigation from a disgruntled parent, unhappy with the position advocated by the attorney for the minor child in a custody action, would be likely not only to interfere with the independent decision making required by this position, but may very well deter qualified individuals from accepting the appointment in the first instance." Id. A parallel situation exists with respect to probation officers engaged in the creation and presentment of presentence reports. Due to the nature of sentencing, a substantial likelihood exists that subjecting probation officers to personal liability will expose them to harassment or intimidation. The high level of emotion involved, combined with the threat of incarceration, is likely to lead to litigation from discontented defendants. Indeed, it has lead to litigation in the present case. The likelihood of harassment or intimidation by exposure to personal liability is great enough to interfere with a probation officer's responsibility to create an unbiased and through presentence report.
Finally, with respect to the third inquiry, there are several procedural safeguards that adequately protect against improper conduct by a probation officer in the course of creating a presentence investigation report. As the United States Court of Appeals for the Second Circuit noted with respect to presentence reports, "Connecticut law . . . provides safeguards to prevent violation of a defendant's due process right not to be punished on the basis of false information . . . Defense counsel may be present during a defendant's interview by the probation officer regarding the presentence report [Practice Book § 43-5] and the report must be provided to defense counsel or the defendant `in sufficient time for them to prepare adequately for the sentencing hearing, and in any event, no less than twenty-four hours prior to the date of the sentencing.' Id. § 43-7. The sentencing may be continued if the court finds that the defendant did not receive the report within such time. See id. At the sentencing hearing, the court must `afford the parties an opportunity to be heard and, in its discretion, to present evidence on any matter relevant to the disposition, and to explain or controvert the presentence investigation report . . .' Id. § 43-10(1); see also id. § 43-14 (`Defense counsel shall bring to the attention of the judicial authority any inaccuracy in the presentence . . . report of which he or she is aware or which the defendant claims to exist.'). If the court finds that any significant information in the presentence report is inaccurate, it must order amendment of the report. Id., § 43-10(1). A defendant may challenge a sentence based on inaccurate information on direct appeal. See State v. Anderson, 212 Conn. 31, 561 A.2d 897, 906 (1989); State v. McNeills, 15 Conn.App. 416, 546 A.2d 292, 307-08 (1988) . . . Thus . . . the presentence report prepared by the probation officer is subject to adversary scrutiny and at least two layers of judicial review." (Citations omitted; internal quotation marks omitted.) Peay v. Ajello, 470 F.3d 65, 70 (2d Cir. 2006).
Based on the three-factor test set forth in Carrubba v. Moskowitz, supra, 274 Conn. 542-42, this court finds that absolute quasi-judicial immunity extends to probation officers engaged in the task of preparing and presenting presentence investigation reports. This is consistent with other jurisdictions that, as the court noted in Carrubba, have extended absolute immunity to probation officers in the justified performance of their duties. Id., 542. Notably, in Peay v. Ajello, supra, 470 F.3d 65, the United States Court of Appeals for the Second Circuit addressed an analogous situation and determined that "[i]n light of the role Connecticut law assigns to presentence reports in aid of a judicial function and the safeguards in place to protect a defendant's right to be sentenced based on accurate information, we hold that absolute immunity from claims for damages applies to Connecticut probation officers in the preparation and submission of presentence reports." Id., 70. Accordingly, the defendants are entitled to absolute quasi-judicial immunity in the present case.
CONCLUSION
Based on the foregoing, the court lacks subject matter jurisdiction over this case. The defendants are entitled to absolute quasi-judicial immunity based on the integral role of the creation and presentment of presentence investigation reports in the judicial system. Accordingly, the motion to dismiss is granted.