Opinion
CV165017496S
07-05-2016
Joshua Marciniszyn v. Waterbury Board of Education et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #111
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
This action was filed by a complaint dated December 28, 2015 with a return date of January 19, 2016 seeking a permanent injunction. Thereafter, the plaintiff filed a Revised Complaint dated February 11, 2016. The complaint contains only one count for an Injunction. The two defendants are the Waterbury Board of Education and the City of Waterbury.
The Plaintiff seeks an order from this court in the nature of an injunction. In particular, the plaintiff requests " an Injunction to estoppel the defendant from issuing such random and unfounded edicts barring plaintiff from Wilby Public High School while his minor child is in school." In addition the plaintiff seeks damages in the nature of attorneys fees, costs, and lost wages. The defendants have filed a motion to dismiss the complaint dated March 7, 2016, arguing that the court lacks subject matter jurisdiction for this action seeking permanent injunctive relief because it is not justiciable and it is not ripe for adjudication.
Additionally, the defendant contends that the claims seeking access to the school as set forth in the claim for relief are moot based upon the fact that the plaintiff has been given access to the school and his son since the filing of this action. The plaintiff has filed a memorandum in opposition to the motion dated June 27, 2016. The court heard argument on June 27, 2016.
The memorandum submitted by the plaintiff in opposition includes comments and opinions by him which are not relevant to the instant motion to dismiss such as the personal evaluation by the plaintiff of the competence and motives of the vice principal and these comments are not considered by the court. The plaintiff also includes a litany of cases regarding due process rights which are not relevant to the particular claim for injunctive relief.
II. FACTUAL BACKGROUND
The plaintiff, Joshua Marciniszyn, adopted a child, " NM, " who has attended the public schools in Waterbury, Connecticut. The plaintiff indicted in argument that his son was originally a student in the middle school and in 2015, the plaintiff's son began attending Wilby High School. As part of the curriculum for N.M. the school engaged in the preparation of an IEP. The plaintiff has made efforts to assist in the education of his son within Wilby High School and was involved in the IEP. N.M. has some behavioral and learning difficulties which require the plan and he is also assisted by a paraprofessional throughout the school day. During argument the plaintiff indicated that he has worked with his son and regularly entered the school when needed to address behavioral issues. In November 2015, there was an event at the school with N.M. which caused them to call and request that the plaintiff take N.M. out of school that day. The event and the method of addressing the event are the subject of different reports by the parties. However, as a result of the event, the plaintiff and a Vice Principal became embroiled in a controversy which eventually led the school to send a letter which stated in relevant part, " Based on today's interaction with Vice Principal Henson, the personal threats made towards her and incidents in the past regarding your behavior the decision has been made to put an alternate plan in place concerning your presence at Wilby High School . . . Our office has been notified that you are not to be allowed on the premises. Should you enter the building of Wilby High School from this day forward this will be considered trespassing and the police will be notified . . ." The plaintiff brought this action for permanent injunctive relief to prevent the defendants from barring him from Wilby High School grounds while his son is attending the school. After this action was filed the Waterbury Board of Education notified the plaintiff that he would be permitted access to the school building but that he could not have contact with the Vice Principal. The plaintiff has continued to enter the building as he did prior to his confrontation with the Vice Principal.
III. ARGUMENT
A. GENERAL STANDARD
" A motion to dismiss . . . properly attacks 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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 866 A.2d 599 (2005). Pursuant to Practice Book § 10-31 in relevant part, " [t]he motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ."
" It is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Ferguson Mech. Co. v. Dep't of Pub. Works, 282 Conn. 764, 770-71, 924 A.2d 846 (2007). " The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court, sua sponte, at any stage of the proceedings . . ." Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). " [I]n determining whether a court has jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
In the present action, the defendant contends that the injunctive relief cannot be granted for two reasons as noted above. The first argument is that the plaintiff's contention that the relief is necessary to allow him access to the school where his child is a student is moot. The second argument by the defendant is that there is no claim at this time and the plaintiff's allegations are speculative thus the claim is not ripe for injunctive relief.
The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm and the lack of adequate remedy at law. Kelo v. New London, 268 Conn. 1, 89, 843 A.2d 500 (2004), aff'd. 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005); Schlichting v. Cotter, 109 Conn.App. 361, 952 A.2d 73 (2008) . Moreover, " [t]he extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." Karls v. Alexandra Realty Corp., 179 Conn. 390, 402, 426 A.2d 784 (1980). Whether or not the plaintiff is entitled to relief is determined, not by the situation existing at the time of the alleged violations, but by that which has developed at the time of trial. Loew's Enterprises, Inc. v. International Alliance, 127 Conn. 415, 419, 17 A.2d 525 (1941) Edson v. Griffin Hospital, 21 Conn.Supp. 55, 63-64, 144 A.2d 341 (1958).
B. MOOTNESS
In response to the defendant's position that the parties have entered into an agreement that permits the plaintiff access to the school and his son, the plaintiff argues that mootness is irrelevant because he is claiming a concern about " Due Process." He contends that the school has not provided him an opportunity to review and challenge the " evidence" that was part of the decision in the past to restrict his access to the school. Although this may be a concern of the plaintiff it is not an issue related to the injunctive relief that the plaintiff now seeks from this court. The plaintiff indicates that the Due Process claim is one that will not end with this Court but that he will address it to the Federal Court if this action is dismissed.
Because this action involves only the request for an injunction, the plaintiff has and can seek other alternatives if he chooses. However, in viewing the complaint and the relief requested the plaintiff admittedly confirms the position of the defendants that he has access to his son and continues to have access to his son. The plaintiff raises as an issue that the limitations of school access had only recently been changed but this does not change the mootness of the request. In St. Pierre et al. v. Albert Solnit, 233 Conn. 398, 658 A.2d 977 (1995), the Court affirmed the decision to dismiss based upon mootness in a situation very similar to the instant action. In St. Pierre, the plaintiff challenged a regulation promulgated by the Commissioner of Mental Health which permitted smoking only outside of the premises and thus precluded residents or patients from smoking within the facility. After the promulgation of the rule and at some time during the action to enjoin the enforcement of the revised smoking policy, the Commissioner revised the policy to permit smoking inside. The court found the complaint moot. It stated that: " It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction . . . [T[he repeal of an offending law or regulation or the cessation of a challenged activity [renders] an action to enjoin its enforcement moot . . . [in the absence of a claim] for redress of an injury occurring while the enactment was in force." (Citations omitted.) St. Pierre v. Solnit, 233 Conn. at 400-01. The St. Pierre plaintiff also argued that the case required review because there was a possibility that the policy would be reinstated without affording them an opportunity to be heard on the merits. The court determined that based on the representations of the defendant there was no reasonable expectation of the renewal of the policy. Such is also the case in point where the defendants have enacted a procedure that will provide reasonable access. Although this argument is made part of the mootness argument in St. Pierre it also reflects the position of the court as it relates to the ripeness of the claim. In the instant matter, all agree that the plaintiff has access. At the time there is no practical relief that can be provided because since February 1, 2016, he has been given access to the school property (Exhibit J). The plaintiff does not argue that there are unreasonable criteria for entering the school and that he abides by the established security measures for visitors in the school. Accordingly, the mootness doctrine is applicable.
C. RIPENESS
The plaintiff argues in his opposition memorandum that he has been denied access, although agreeing in argument that he has been given access to the school and his son at this time, but adds that " the court must believe it can and will occur again." He then goes on to state that " . . . The defendants, may, in fact, never bar the Plaintiff from Wilby High School" but that, " they did in the past and as such this court should find that they will if the case is dismissed." The plaintiff has no other evidence to support some act in the future which may be premised upon action by the plaintiff. This is the epitome of speculation. The actions of the defendants as noted by the plaintiff are contingent upon some improper conduct by the plaintiff. " In deciding whether the plaintiff's complaint presents a justiciable claim, [the court] make[s] no determination regarding its merits. Rather, [the court] [considers] only whether the matter in controversy [is] capable of being adjudicated by judicial power according to the . . . well established principles . . . The rationale of the ripeness requirement . . . [is] to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . ." (Internal quotation marks omitted.) Hamilton v. United Services Automobile Assn., 115 Conn.App. 774, 781-82, 974 A.2d 774, cert. denied, 293 Conn. 924, 980 A.2d 910 (2009).
Because of plaintiff's involvement in the IEP for his son, he has some control over what may or may not occur during the school days. Not only is his claim speculative but it may be controlled by the plaintiff's own conduct. The plaintiff recognized during the course of his argument that the school has an obligation to keep the students safe and to employ security and safety measures which would be useless if the court orders unfettered access without evidence or testimony that there is any rationale which supports the order other than plaintiff's own speculation or conjecture. Therefore, not only is the plaintiff's request for an injunction not ripe but the broad nature of the requested order exposes the school security personnel to an unworkable edict which creates an inability to perform their duties of protection to the school students and personnel.
IV. CONCLUSION
Based upon the above, the court finds that the claim is moot because he has access and is not ripe for a claim because any argument that he will not have access is purely speculative. The motion to dismiss is granted.