Opinion
No. CV02-0124891
August 27, 2004
MEMORANDUM OF DECISION RE STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#161)
On April 19, 2002, the plaintiffs, Kaylee Manifold and Matthew Manifold, through their mother and next friend, Billie Jo Zaks; Billie Jo Zaks, in her individual capacity; and Michael Manifold; filed a four-count complaint against the defendants, Kristine Ragaglia, Commissioner of tine Department of Children and Families (DCF), Richard Days, DCF social worker, Nancy Liebeson-Davis, DCF social worker, Antonio Donis, DCF program supervisor and Daphne Knight, DCF social worker. The plaintiffs have also brought suit against Robert Creutz, emergency room physician at William W. Backus Hospital and William W. Backus Hospital. Count one alleges that the defendants, individually and in their official capacities, intentionally inflicted emotional distress upon the plaintiffs. Count two alleges medical malpractice on the part of Creutz. Count three alleges negligence on the part of the hospital. Count four is a claim for negligent infliction of emotional distress against all defendants.
These defendants have been sued in their individual and official capacities.
The defendants Creutz and Backus Hospital are not a party to the motion for summary judgment now before the court. Any reference herein to "the defendants" is solely to Ragaglia, Days, Liebeson-Davis, Donis and Knight.
By way of background, on January 29, 2003, the defendants filed a motion to dismiss counts one and four on the ground that the court lacks subject matter jurisdiction based on the common-law doctrine of sovereign immunity and statutory immunity under General Statutes § 4-165. The motion to dismiss was accompanied by a memorandum of law and a number of exhibits, including the signed and sworn affidavits of Donis and Days. The plaintiffs filed a memorandum of law in opposition to the defendants' motion to dismiss on March 19, 2003. The plaintiffs also attached a number of exhibits to their memorandum of law, including the signed and sworn affidavits of Zaks, Michael Manifold and Nancy Cusmano.
The facts of this case, as alleged by the plaintiff, were set forth fully in this court's memorandum of decision regarding the motion to dismiss. Manifold v. Regaglia, Superior Court, judicial district of New London at Norwich, Docket No. CV 02 0124891 (August 1, 2003, Martin, J.). This court denied the defendants' motion to dismiss as to counts one and four on the ground that the court has subject matter jurisdiction to hear the case because the allegations, if proven, could lead a fact finder to believe that the defendants acted in excess of the scope of the government authority granted to them and that these facts could also lead a fact finder to conclude that the defendants acted wantonly, recklessly, or maliciously as the terms are used in § 4-165. Thereafter, on August 9, 2003, the defendants filed a motion to reconsider the motion to dismiss in light of the Supreme Court's holdings in Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003), and Prigge v. Ragaglia, 265 Conn. 338, 828 A.2d 542 (2003). This court, in reliance on Miller and Prigge, dismissed the plaintiffs claims for monetary damages against the defendants in their official capacities. Manifold v. Regaglia, Superior Court, judicial district of New London at Norwich, Docket No. CV 02 0124891 (January 16, 2004, Martin, J.) ( 36 Conn. L. Rptr. 387). The plaintiffs' claims seeking declaratory and injunctive relief against the defendants in their official capacities and the claims seeking monetary relief against the defendants in the individual capacities remain.
On March 8, 2004, the defendants filed a motion for summary judgment. The motion for summary judgment was accompanied by a memorandum of law and a number of exhibits including the signed and sworn affidavits of Days, Donis, Liebenson-Davis, John Leventhal, and Colleen Lenney and the certified deposition testimony of Kathleen Welch, Michael Manifold, Liebenson-Davis, Zaks, Cusmano, and Robert Creutz. On March 18, 2004, the plaintiffs filed a preliminary memorandum in opposition to the defendants' motion for summary judgment. Thereafter, on March 26, 2004, the defendants filed a response to the plaintiffs' preliminary memorandum in opposition. Attached was the signed and sworn affidavit of Benjamin Zivyon, the assistant attorney general who represented the defendants until mid-August 2003. The plaintiffs filed a subsequent memorandum in opposition to the motion for summary judgment on April 5, 2004. The plaintiffs did not submit any new affidavits or supporting documentation. The plaintiffs have, however, incorporated, by reference, evidence previously submitted in opposition to the motion to dismiss. The court heard oral arguments on the motion for summary judgment on July 22, 2004.
On March 16, 2004, the defendants filed a motion to postpone trial. The trial had been scheduled to begin on April 20, 2004. On March 22, 2004, the plaintiffs filed an objection to the defendants' motion to postpone trial. The plaintiffs based this objection on the fact that the defendants did not file a written motion for permission to file a motion for summary judgment.
The arguments set forth in this memorandum were primarily based on procedural objections concerning the lack of a written motion for permission to file a motion for summary judgment. The plaintiffs also argued that the motion for summary judgment had to be based on new arguments that had yet to be decided in the motion to dismiss and motion to reconsider. During oral argument on the motion for summary judgment, this court granted the defendants permission to file the motion for summary judgment.
DISCUSSION
The defendants move for summary judgment on the ground that the court lacks subject matter jurisdiction to hear this case. The defendants argue that the undisputed facts of the case establish that the defendants were acting consistent with their statutory duties and authority as DCF employees and that there is no factual evidence of any wanton, malicious, or reckless conduct or intent to cause emotional distress on the part of any of the defendants towards the plaintiffs. The defendants assert therefore that they are entitled to judgment as a matter of law because they are immune from suit pursuant to General Statutes § 4-165 and because there is no genuine issue of material fact. The plaintiffs argue in opposition that the issue of subject matter jurisdiction in this case has already been decided and they rely on the court's earlier decisions regarding the motion to dismiss and the motion to reconsider.
Section 4-165 provides in relevant part, "No 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 defendants also argue that the motion for summary judgment is based "upon there being no evidence to support the claims for injunctive relief against the state defendants in their official capacities." The defendants assert that the plaintiffs must plead and prove that they would suffer irreparable harm absent an injunction, and that there is no adequate remedy at law. The plaintiffs are seeking three forms of injunctive relief: 1) an order that the defendants expunge all DCF records reflective or relating to the Manifold incident and the plaintiffs; 2) an injunction requiring DCF to require a routine blood test in all instances where the alleged evidence of abuse includes bruising; 3) an injunction requiring DCF to inform its investigators of the facts and circumstances attending wrongful removals, so that injury to similar families can be averted.
As to the first request, the defendants argue the plaintiffs failed to exhaust their administrative remedy in seeking to expunge the DCF records. In Prigge v. Ragaglia, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 01 0167912 (December 18, 2003, Alander, J.), the plaintiffs had alleged in their complaint that DCF's records contained false information about them and they sought an injunction to have the records expunged and destroyed. The court concluded that the plaintiffs did have a right to seek an injunction to expunge all DCF records concerning the plaintiffs. See also Prigge v. Ragaglia, 265 Conn. 338, 348, n. 15, 828 A.2d 542 (2003). Similarly, in this case, the plaintiffs do have a right to seek such injunctive relief.
As to the second and third requests, the defendants argue that the plaintiffs have not pleaded irreparable harm. Whether a plaintiff has properly pleaded irreparable harm and lack of an adequate remedy at law is typically addressed as a motion to strike. See, e.g., Prigge v. Ragaglia, supra, Superior Court, Docket No. X06 CV 01 0167912. "[W]hen a party is challenging the legal sufficiency of [a] complaint by way of a motion for summary judgment, rather than a motion to strike, it cannot avail itself of such pleading deficiencies which would have been corrected as of right by the plaintiffs filing a substitute pleading pursuant to Practice Book § [10-44] had a motion to strike been filed . . . [A] party ought not be put out of court for correctable pleading deficiencies . . . The [defendants] may not circumvent the [plaintiffs'] right to replead simply by challenging the [claim] by way of a motion for summary judgment." (Citations omitted; internal quotation marks omitted.) Machnik v. Peterson, Superior Court, judicial district of New London, Docket No. 55 13 88 (April 25, 2000, Martin, J.). Furthermore, "a prayer for relief does not constitute a cause of action and, thus a motion to strike rather than a motion for summary judgment, is the only pretrial method to attack a prayer for relief." Id. In this case, the defendants are attacking the sufficiency of a prayer for relief which should be done by way of a motion to strike. The defendants are not precluded from filing a motion to strike because they have not filed an answer, therefore, the court will not address the sufficiency of the pleadings seeking injunctive relief in this motion for summary judgment.
The defendants have again raised the issue of sovereign immunity, this time in a motion for summary judgment. "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction." (Internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004). A claim of lack of "subject matter jurisdiction . . . addresses the basic competency of the court [and] can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) ABC, LLC v. State Ethics Commission, 264 Conn. 812, 822-23, 826 A.2d 1077 (2003). Accordingly, the court will treat this motion for summary judgment as a motion to dismiss. See, e.g., Thomas v. Ocif, Superior Court, judicial district of Waterbury, Docket No. CV 99 0166939 (July 30, 2003, Gallagher, J.). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint . . . construing them in a manner most favorable to the pleader." Neiman v. Yale University, 270 Conn. 244, 250, 851 A.2d 1165 (2004). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citation omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).
This court has already decided the issue of subject matter jurisdiction in the defendants' motion to dismiss and the motion to reconsider. In denying the defendants' motion to dismiss, this court held that: "[t]he allegations, if proven, could lead a fact finder to believe that the defendants acted in excess of the scope of government authority granted to them. In addition, the same facts that lead to a conclusion that the defendants may have acted in excess of their authority could lead a fact finder to conclude that the defendants acted wantonly, recklessly, or maliciously as the terms are used in General Statutes § 4-165." This court has considered the arguments presented in the defendants' motion for summary judgment. These additional arguments are based on claims of common-law sovereign immunity and statutory immunity pursuant to § 4-165, issues already addressed by the court. Accordingly, the motion for summary judgment is denied.
Martin, J.