Opinion
NNHCV185042428S
02-15-2019
Anthony ORR v. DEPARTMENT OF CORRECTION et al.
UNPUBLISHED OPINION
OZALIS, J.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The parties in this action are the plaintiff, Anthony Orr (Orr), and the defendants, Department of Correction (DOC), Warden Feliciano (Feliciano), Lieutenant Pedro (Pedro), and Lieutenant Meadille (Meadille).
In his complaint filed on May 2, 2018, the pro se plaintiff alleges the following facts. On June 20, 2017, the plaintiff, an inmate at Cheshire Correctional Institution, was involved in a physical altercation with two other inmates. The plaintiff alleges that during the altercation, the plaintiff was slammed to the ground by the other two inmates and hit his head on the ground. The plaintiff alleges that while the plaintiff was on the ground, defendant Pedro ran from the other side of the table, jumped on top of the plaintiff, scratched his face and proceeded to spray mace in his eyes, all while the plaintiff did not resist the officer and instead was holding his hands up to show that he was not posing any threat.
The plaintiff alleges that defendant Pedro’s actions violated his Fourth and Eighth Amendment rights of the United States Constitution by way of unlawful use of excessive force pursuant to Title 42 of the United States Code, § 1983. The plaintiff also alleges that the defendants DOC, Feliciano, and Meadille violated his Fourth and Eighth Amendment rights by failing to ensure his safety from the use of excessive and unnecessary force of staff members. The plaintiff has brought claims for compensatory and punitive damages against the DOC, Feliciano, Pedro and Meadille in their individual capacities. The plaintiff has also brought a claim for declaratory relief against all of the defendants that "the acts and omissions described here within violated the plaintiff’s 4th and 8th amendment right under the constitution and laws of the United States and D.O.C. directives ..."
On June 13, 2018, the defendants Pedro, Meadille and DOC filed the current motion to dismiss. The defendants Pedro and Meadille have moved to dismiss the plaintiff’s claims asserted against them in their individual capacities on the grounds that this court lacks personal jurisdiction over them as a result of insufficient service of process. The defendant DOC has moved to dismiss the plaintiff’s claims against it on the grounds that the monetary and declaratory claims for relief against it are barred by sovereign immunity. On August 24, 2018, the plaintiff filed an objection to the defendants’ motion to dismiss on the ground that service was made on Pedro and Meadille at the Office of the Attorney General, and that as a pro se plaintiff, he did not know the difference between individual and official capacity service. Oral argument was heard on the motion to dismiss on November 21, 2018.
The defendant Feliciano did not move to dismiss any of the claims against him.
II.
DISCUSSION
"[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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zika v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
"In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). "The doctrine of sovereign immunity implicates the court’s subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).
"Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case ... [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts ... Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citation omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).
"When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Id., 651. "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).
"Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).
A. Personal Jurisdiction as to Pedro and Meadille
In the present case, the defendants Pedro and Meadille contend that due to improper service, this court lacks personal jurisdiction over them in their individual capacities and such claims should be dismissed.
General Statutes § 52-57 governs service of process upon individuals in this jurisdiction. Section 52-57 provides in relevant part: "(a) Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." The plaintiff’s complaint clearly states that he is seeking compensatory and punitive damage relief against Pedro and Meadille in their individual capacities. Thus, for the court to exercise proper jurisdiction over defendants Pedro and Meadille, service of process must strictly comply with § 52-57.
The summons in this case lists the address of the New Haven Correctional Facility, 245 Whalley Ave, New Haven, CT, 06511, as the address for service upon defendants Pedro, Meadille, and Feliciano, who is not a party to this motion. The return of service states that the marshal served defendants Pedro, Meadille, and Feliciano on April 18, 2018, with the attorney general at the Office of the Attorney General. The return of service also states that the marshal then went to the New Haven Correctional Facility on April 24, 2018, to effectuate in-hand service on defendant Feliciano. Despite the marshal’s presence at the facility, he only served defendant Feliciano in-hand and did not serve Pedro or Meadille.
The facts presently before the court are analogous to those in Harnage v. Lightner, 328 Conn. 248, 179 A.3d 212 (2018). In Harnage, an incarcerated plaintiff initiated an action against the defendants in their individual (and official) capacities. Id., 250. The defendants in Harnage, a prison lieutenant and prison medical service providers, were served at the Office of the Attorney General. Id., 251. "[T]he court granted the motion to dismiss the claims against the defendants in their individual capacities because the plaintiff failed to properly serve the defendants in their individual capacities pursuant to [General Statutes] 52-57(a)." Id., 252. The Connecticut Supreme Court affirmed the Connecticut Appellate Court’s finding "that a plaintiff, who serves a state defendant pursuant to § 52-64(a) by leaving a copy of the process with the attorney general at the Office of the Attorney General, has properly served the defendant only in his or her official capacity and has failed to properly serve the defendant in his or her individual capacity." Id., 254.
General Statutes § 52-64 states in relevant part: "(a) Service of civil process in any civil action ... against any officer, servant, agent or employee of the state or of any such institution, board, commission, department or administrative tribunal, as the case may be, may be made by a proper officer (1) leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General at the office of the Attorney General in Hartford ... (b) In any civil action commenced by a person who is incarcerated against the state or any institution, board, commission, department or administrative tribunal thereof, or against any officer, servant, agent or employee of the state or of any such institution ... service of process on all defendants in such civil action, who are sued in their official capacity, shall be accomplished by a proper officer (1) leaving one true and attested copy of the process, including the declaration or complaint, with the Attorney General at the office of the Attorney General in Hartford ..."
In this case, the marshal’s service of the defendants Pedro and Meadille at the Office of the Attorney General, despite the complaint clearly specifying that the plaintiff brought his compensatory and punitive damages claims against the defendants Pedro and Meadille in their individual capacities, is legally deficient with respect to those claims. Consequently, as the service of process was not in compliance with § 52-57, this court lacks personal jurisdiction over defendants Pedro and Meadille in their individual capacities.
Based on the foregoing, the defendants Pedro and Meadille’s motion to dismiss the plaintiff’s compensatory and punitive damages claims against them in their individual capacities is granted.
The defendants Pedro and Meadille did not move to dismiss the plaintiff’s declaratory judgment claims against them, which were not asserted in their individual capacities, and this court does not address those claims in this decision.
B. Subject Matter Jurisdiction
The defendant DOC has moved to dismiss all of the plaintiff’s claims against it on subject matter jurisdiction grounds. The defendant DOC contends that this court lacks subject matter jurisdiction over the claims asserted against it in that: (1) sovereign immunity prevents the plaintiff from seeking monetary damages from the DOC, a state of Connecticut agency; and (2) that the declaratory relief requested by the plaintiff is not prospective in nature and as such cannot be the basis for the § 1983 declaratory relief asserted against it.
In his complaint, the plaintiff alleges that the defendant DOC violated his fourth and eighth Amendment rights by failing to ensure his safety from the use of excessive and unnecessary force of staff members. The plaintiff seeks: (1) a declaration that the acts described above violated his fourth and eighth amendment rights by failing to ensure his safety from unlawful and unnecessary use of force under Title 42 of the United States Code, § 1983; and (2) compensatory and punitive damages for the same. The DOC has moved to dismiss the plaintiff’s claims against it, contending that as a state agency, it is immune from liability as to both declaratory relief and monetary damages on the grounds of sovereign immunity.
"[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, supra, 301 Conn. 274. Title 42 of the United States Code, § 1983, states in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ... except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. § 1983 (2019).
The United States Supreme Court has repeatedly expressed that "[t]o state a claim under § 1983, a plaintiff must allege a 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." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The Connecticut Supreme Court made clear that, "when sovereign immunity is claimed as a defense to a cause of action pursuant to § 1983, federal sovereign immunity jurisprudence preempts analysis under state law." Sullins v. Rodriguez, 281 Conn. 128, 133, 913 A.2d 915 (2007). "The United States Supreme Court has asserted that [f]ederal law is enforceable in state courts ... because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature." (Citation omitted; internal quotation marks omitted.) Id. "State courts have concurrent jurisdiction over claims brought under § 1983. Nevertheless, [c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 ... cannot be immunized by state law." (Internal quotation marks omitted.) Id., 133-34. "[S]overeign immunity may bar a plaintiff’s claim pursuant to § 1983, but ... federal law must govern that inquiry." Id., 136. Thus, in the present matter, this court should apply federal law in assessing whether the plaintiff’s monetary claims or claims for declaratory relief can move forward.
"Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity, or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. That Congress, in passing § 1983, had no intention to disturb the States’ Eleventh Amendment immunity and so to alter the federal-state balance in that respect was made clear in our decision in Quern ." (Citation omitted.) Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); see also Quern v. Jordan, 440 U.S. 332, 350, 99 S.Ct. 1139, 59 L.Ed.2d 35 (1979) (holding that § 1983 does not override state’s eleventh amendment immunity).
"A state, as an entity having immunity under the eleventh amendment to the United States constitution, is not a ‘person’ within the meaning of § 1983 and thus is not subject to suit under § 1983 in either federal or state court ..." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 311, 828 A.2d 549 (2003). "[A] suit against a state official in his or her official capacity is not a suit against the official, but rather a suit against the official’s office ... As such it is no different from a suit against the State itself." (Citation omitted.) Will v. Michigan Dep’t of State Police, supra, 491 U.S. 71. Thus, "[a] suit generally may not be maintained directly against the State itself, or against any agency or department of the State, unless the State has waived sovereign immunity." Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982).
Pursuant to § 1983, the plaintiff has brought claims against the defendant DOC in its individual capacity for monetary damages and in its official capacity for declaratory relief. "[A] suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally." Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999).
42 U.S.C. § 1983 provides, in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding in redress."
In this case, the plaintiff has alleged monetary damages claims against the defendant DOC pursuant to § 1983. The Department of Correction is a state agency. See Vaden v. Connecticut, 557 F.Supp.2d 279, 288 (D.Conn. 2008); Garris v. Dep’t of Correction, 170 F.Supp.2d 182, 186 (D.Conn. 2001). Like other state agencies, the DOC is not a "person" within the meaning of § 1983, and it is not subject to suit under § 1983 in either federal or state court on a claim for monetary damages. See Santos v. Dep’t of Correction, United States District Court, Docket No. 3:04CV1562 (JCH) (D.Conn. August 29, 2005) (observing that "neither a Department of Correction nor a correctional institution is a person" subject to liability under § 1983); Slaughter v. University of Connecticut, United States District Court, Docket No. 3:15CV1226 (VLB) (D.Conn. September 15, 2016) (the Department of Correction is a state agency and is not a person within the meaning of § 1983).
Based on the foregoing, the defendant DOC’s motion to dismiss the plaintiff’s § 1983 claims against it for monetary relief is granted.
B. Declaratory Relief
The plaintiff has also asserted claims for declaratory relief pursuant to § 1983 in his complaint and seeks that the court recognize that his fourth and eighth amendment rights of the United States Constitution were violated.
The defendant DOC has moved to dismiss the plaintiff’s § 1983 claims for declaratory relief on the grounds that such claims are barred by sovereign immunity in that the relief requested by the plaintiff is not prospective in nature. The plaintiff has sued the defendant DOC in its official capacity for declaratory relief.
An action brought against a state agency or official in their official capacity may overcome sovereign immunity under the provisions of 42 U.S.C. § 1983. "[A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State." (Internal quotation marks omitted.) Will v. Michigan Dep’t of State Police, supra, 491 U.S. 58, 71 n.10.
"[U]nder the venerable doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ... a plaintiff may sue a state official acting in his official capacity— notwithstanding the Eleventh Amendment— for ‘prospective injunctive relief, from violations of federal law.’" In re Deposit Ins. Agency, 482 F.3d 612 (2d Cir. 2007). "In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective ." (Emphasis added; internal quotation marks omitted.) Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). "Judgments against state officers declaring that they violated federal law in the past" are not permitted. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); see also Lee v. Dep’t of Children and Families, 939 F.Supp.2d 160 (D.Conn. 2013) (because the only declaratory relief sought in this case was a declaration that past conduct was unlawful, declaratory relief was not available).
For the court to have jurisdiction in this case under the sovereign immunity exception for unconstitutional acts, the plaintiff must clearly allege facts establishing a declaratory judgment claim for prospective relief. Pursuant to the Ex Parte Young inquiry, this court has reviewed the allegations in the plaintiff’s complaint which allege violations of the fourth and eighth amendments of the United States constitution by way of unlawful use of excessive force pursuant to Title 42 of the United States Code, § 1983.
In his complaint, the plaintiff alleges that defendant Pedro’s past excessive and unnecessary use of force on June 20, 2017, violated his Fourth and Eighth Amendment rights of the United States Constitution. The plaintiff also alleges that the DOC, defendants Feliciano, and Meadille violated his fourth and eighth amendment rights by failing to ensure his safety from the use of excessive and unnecessary force by defendant Pedro on June 20, 2017.
This court finds that the allegations in the plaintiff’s complaint do not sufficiently assert a claim for prospective declaratory or injunctive relief as these allegations do not assert an ongoing violation of federal law and do not seek relief properly characterized as prospective.
Accordingly, the defendant DOC’s motion to dismiss plaintiff’s claims against it for declaratory relief on the grounds of sovereign immunity is granted.
III.
CONCLUSION
Based on the foregoing, the plaintiff’s claims against the defendant DOC for monetary and declaratory relief are dismissed in their entirety and the plaintiff’s claims against defendants Pedro and Meadille for compensatory and punitive damages in their individual capacities are dismissed in their entirety.