Summary
recognizing in a case brought by a state prisoner that "[t]he commissioner promulgated administrative directive 3.8 pursuant to statutory authority. The plain language of CUTPA prevents the plaintiff from seeking redress under its provisions. Therefore, the plaintiff's CUTPA claim against the commissioner of correction must fail on this ground as well."
Summary of this case from Sterling v. Securus Techs., Inc.Opinion
No. CV 084031139
August 10, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#102)
The plaintiff, M. Andre Pierce, a self-represented inmate at the Cheshire correctional institution, commenced this action on May 6, 2008, seeking a declaratory judgment and injunctive relief, alleging, variously that the defendants violated his constitutional rights and the Connecticut Unfair Trade Practices Act (CUTPA). The defendants, Theresa Lantz, the Commissioner of Correction; Elizabeth Berrios, a commissary operator at the Cheshire correctional institution; W. Mark Strange, a district administrator; and "Ms. Hicks, a grievance coordinator," filed a motion to dismiss the action on September 4, 2008. (#102.) Therein, the defendants argue that the plaintiff's complaint is barred by sovereign immunity and by General Statutes § 4-165. The defendants filed a reply memorandum on October 2, 2008. The plaintiff filed a reply memorandum on October 28, 2008. The parties argued their positions before the court at Short Calendar on April 19, 2010. For reasons more fully set forth in this Memorandum of Decision, the court grants the defendants' motion to dismiss.
Defendant Hicks is only identified as "Ms. Hicks, Grievance Coordinator."
The plaintiff's memorandum in opposition, though dated September 17, 2008, was filed on October 8, 2008.
During the pendency of this motion, the plaintiff filed a request to amend his complaint to add a cause of action pursuant to 42 U.S.C. § 1983. Although the plaintiff requested, at oral argument, that this court consider this request prior to ruling on the motion to dismiss, that matter is not before the court, and the court did not consider it in its ruling. See, Federal Deposit Ins. Corp. v Peabody, NE., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996) ("Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, 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").
In this action the plaintiff seeks the following relief: (1) declaratory relief for violations of his right to be free from cruel and unusual punishment guaranteed by the Eighth Amendment to the United States Constitution and made applicable to the state of Connecticut by the Fourteenth Amendment to the United States Constitution; (2) an injunction ordering Lantz to reform policies pertaining to threats against prison personnel so as to employ an objective standard; (3) an injunction ordering Lantz to provide inmates with garbage bags in their cells; (4) an injunction ordering Lantz to rescind the policy that permits the prison commissary to charge a thirty percent markup and shipping and handling costs for the purchase of cassette tapes and compact discs through a mail-order catalog and (5) damages in the sum of $44,000 to be apportioned evenly between the defendants with no more than ten percent being subjected to deduction for the cost of his correction.
In their motion to dismiss, the defendants argue that the plaintiff's claim for monetary damages against them in their individual capacities must be dismissed because such an action is barred by sovereign immunity. The defendants further argue that the plaintiff's CUTPA claim must be dismissed because: (1) Lantz enjoys statutory immunity pursuant to General Statutes § 4-165; (2) the enumerated acts alleged by the plaintiff do not fall into the recognized exceptions to statutory immunity and (3) the operation of the prison commissary, being provided for by General Statutes §§ 18-88, 4-57a, is excluded from civil actions for CUTPA violations.
In a memorandum in opposition filed on October 8, 2008, the plaintiff argues that he brings this suit against the defendants in their capacity as individuals and not as state officers. The plaintiff further argues that the defendants are not entitled to either sovereign or statutory immunity because they acted recklessly and unlawfully by violating his constitutional rights and CUTPA. Furthermore, the plaintiff maintains that sovereign and statutory immunity do not bar his action for declaratory and injunctive relief.
"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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003); see Practice Book § 10-31. "[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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). Moreover, "[c]laims involving . . . statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009); Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2007).
"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.3d 801 (2003). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). "[I]n determining whether a court has subject matter 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).
I. Eighth Amendment Claim
In his complaint, the plaintiff seeks damages totaling $44,000 against all of the defendants in their official and individual capacities for violations of his right to be free from cruel and unusual punishment guaranteed by the Eighth Amendment to the United States Constitution. First, he alleges that Berrios violated his rights when she caused him to be placed in segregation; fired him from his employment within the facility; and stripped him of his personal property after he threatened her. He claims that the sanctions are unconstitutional because they are disproportionate to the offense. Second, the plaintiff argues that the correctional institution's policy of not providing inmates with garbage bags in their cells constitutes a violation of the Eighth Amendment.
The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
In their motion to dismiss, the defendants argue that the plaintiff's claims rest in actions that the defendants took in their official capacities. Consequently, the defendants argue that the plaintiff is truly seeking money damages against the state of Connecticut, and that such claims are barred by sovereign immunity. The defendants argue that the court is without subject matter jurisdiction since the plaintiff's claims are barred by sovereign immunity and, therefore, they must be dismissed.
Sovereign immunity is "[t]he principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . It has deep roots in this state and our legal system in general, finding its origin in ancient common law." (Citation omitted; Internal quotation marks omitted.) Daimler Chrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). "[A]dherence to the doctrine of sovereign immunity does not mean [however] that all suits against government officers, since they are in effect suits against the government, must be barred . . . In those cases in which it is alleged that the defendant officer is proceeding under an unconstitutional statute or in excess of his statutory authority, the interest in the protection of the plaintiff's right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine. Moreover, the government cannot justifiably claim interference with its functions when the acts complained of are unconstitutional or unauthorized by statute. On the other hand, where no substantial claim is made that the defendant officer is acting pursuant to an unconstitutional enactment or in excess of his statutory authority, the purpose of the sovereign immunity doctrine requires dismissal of the suit for want of jurisdiction." (Citations omitted; internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 212-13, 994 A.2d 106 (2010).
"[A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Internal citation omitted.) Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003). "[I]n order to overcome sovereign immunity, the [plaintiff] must do more than allege that the defendants' conduct was in excess of their statutory authority; [he] also must allege or otherwise establish facts that reasonably support those allegations." Shay v. Rossi, 253 Conn. 134, 174-75, 740 A.2d 1147 (2000).
"A claim for declaratory relief may be an exception to the doctrine of sovereign immunity only when the substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights." Bloom v. Dept. of Labor, 93 Conn.App. 37, 41, 888 A.2d 115 (2005). "The exception to the doctrine of sovereign immunity for actions by state officers in excess of their statutory authority applies to actions seeking declaratory or injunctive relief, not to actions for money damages." Id. Therefore, inasmuch as the plaintiff seeks monetary damages against the defendants for violations of his constitutional rights, the claims are barred by sovereign immunity.
II. CUTPA Claim
In his complaint, the plaintiff alleges that Lantz violated CUTPA in permitting the prison commissary to charge a markup pursuant to department of correction administrative directive 3.8. The plaintiff argues that it was deceptive and unfair for the defendant to permit the commissary to charge a thirty percent markup and charge shipping and handling on mail-order cassette tapes and compact discs. Specifically, the plaintiff argues that the commissary only facilitates the transaction between the inmate and a third party mail-order service.
See General Statutes § 42-110a et seq. CUTPA provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or trade practices in the conduct of any trade or commerce." General Statutes § 42-110b(a).
Administrative directive 3.8 (19) provides: "Pricing. Most merchandise sold in the commissary shall be marked up 30 percent (30%) . . ."
The defendants argue that the plaintiff's CUTPA claim must fail for two reasons. First, the defendants argue that General Statutes § 4-165 provides them with statutory immunity against these claims. And, the defendants argue that the plaintiff failed to allege wanton, reckless or malicious conduct that would surmount this statutory bar. Second, the defendants argue that General Statutes § 42-110c(a)(1) bars CUTPA claims for actions taken by state officials in furtherance of their official duties. The defendants maintain that Lantz is authorized by General Statutes § 18-88(k) to operate the commissary at a profit, and that Lantz's promulgation of an administrative directive for the commissary is tacitly authorized by that statute.
General Statutes § 18-88(k) provides: "The Commissioner of Correction may establish, within the industrial fund, commissaries to be operated for the purpose of sale to inmates of items authorized by the commissioner. The cost of the commissary operation shall be charged to the fund and the proceeds of such sales shall be deposited in the fund. The commissioner is authorized to transfer a portion of the profits from the operation of the commissaries to the Correctional General Welfare Fund established under Section 4-57a."
There is generally no "special requirement of pleading particularity connected with a CUTPA claim." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 644, 804 A.2d 180 (2002). However, in order "[t]o establish a CUTPA violation, a claimant's evidence must establish that the conduct at issue falls within one of three criteria. A court must decide whether the conduct (1) offends public policy, (2) is immoral, unethical, oppressive or unscrupulous or (3) causes substantial injury to consumers, competitors or other businessmen." (Citations omitted; internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 646, 882 A.2d 98, cert. denied, 276 Conn. 924, 888 A.2d 92 (2005). These criteria, colloquially known as the "cigarette rule," need not all be established in order to state a valid CUTPA claim. See Toshiba American Medical Systems, Inc. v. Mobile Medical Systems, Inc., 53 Conn.App. 484, 491 n. 3, 730 A.2d 1219, cert. denied, 249 Conn. 930, 733 A.2d 1219 (1999). "Thus, a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 434, 849 A.2d 382 (2004).
General Statutes § 4-165(a) provides: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter." "The umbrella of personal immunity provided by § 4-165 applies only to a state officer or employee who causes injury or damage while acting within the scope of his [or her] employment." (Internal quotation marks omitted.) Antinerella v. Rioux, 229 Conn. 479, 498, 642 A.2d 699 (1994).
Section 4-165(a) shields state employees sued in their individual capacity, but may only be "implicated after it has been determined that the state may rightfully be sued." Antinerella v. Rioux, 229 Conn. 479, 498, 642 A.2d 699 (1994). Therefore, personal immunity under § 4-165 does not apply where a suit is barred by sovereign immunity. See id. In the present case, the court will address this issue, even though the defendants' motion to dismiss does not raise sovereign immunity as a bar to the plaintiff's CUTPA claim.
Our Supreme Court has stated that: "In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [Such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 379, 802 A.2d 814 (2002).
General Statutes § 4-165(a) effectively shields the defendants from the plaintiff's allegations. The plaintiff has not alleged facts that would lead to the conclusion that the defendants' actions were wanton, reckless, wilful, intentional and malicious. Therefore, statutory immunity blocks the plaintiff's claims for relief against the defendants individually for their alleged violations of CUTPA.
The defendants are correct in their assertion that the plain language of CUTPA also bars the plaintiff's claims. CUTPA provides that "[n]othing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or of the United States . . ." General Statutes § 42-110c(a). Our Supreme Court has only twice had the occasion to address this statutory exception from CUTPA, both times holding that the exemption barred actions for CUTPA violations against municipalities.
In Danbury v. Dana Investment Corp./Lot No. G08065, 249 Conn. 1, 730 A.2d 1128 (1999), the court addressed the issue of whether a CUTPA violation could be raised as a special defense in an action for foreclosure on municipal real estate tax liens on property owned by the defendant. Id., 3. The court assumed arguendo that the city was conducting "trade" or "commerce" for the purposes of CUTPA by collecting real estate taxes. Id., 19. However, the court held that the defendant's CUTPA defense failed on the grounds of the statutory exception provided by § 42-110c(a). Id.
In its analysis, the court relied on Connelly v. Housing Authority, 213 Conn. 354, 362, 567 A.2d 1212 (1990), the one other occasion that it had to address the statutory exception. In Connelly, the court "held that the actions of a municipal housing agency were exempt from CUTPA because the agency, a creature of statute, was acting pursuant to and was regulated pervasively by statutes and regulations that set forth in great detail the municipal landlord's responsibilities and provide[d] carefully balanced procedural and substantive remedies . . . [And that] using the history of the Federal Trade Commission Act as the lodestar for interpreting CUTPA, we were unable to discover any instance in which that act ha[d] been applied to any act or practice of a local public agency . . ." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp./Lot No. G08065, supra, 249 Conn. 19-20. Thus, the court in Danbury v. Dana Investment Corp./Lot No. G08065 found that the tax collection process was "authorized and regulated expressly by a pervasive statutory scheme . . . [and] the procedures by which a taxpayer may challenge those assessments are set forth by a statutory scheme that carefully balances both the procedural and substantive remedies . . . [and that] the processes by which the city may collect unpaid taxes are set forth explicitly by statute." (Citations omitted.) Id., 20.
The reasoning in these cases is applicable to the matter before this court. Our Appellate Court has recognized the authority of the commissioner of correction to issue directives to operate a prison commissary. See, Pierce v. Lantz, 113 Conn.App. 98, 106-07, 965 A.2d 576 (2009) (affirming motion to dismiss for lack of subject matter jurisdiction because thirty percent markup is not a regulation that can be challenged via the UAPA). The commissioner promulgated administrative directive 3.8(18) pursuant to statutory authority. The plain language of CUTPA prevents the plaintiff from seeking redress under its provisions. Therefore, the plaintiff's CUTPA claim against the commissioner of correction must fail on this ground as well.
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to dismiss the plaintiff's claims for money damages against the defendants and grants the defendants' motion to dismiss the plaintiffs CUTPA claim because it is barred by statutory immunity and is excepted from CUTPA.