Opinion
No. CV 07 5012304 S
March 6, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS NO. 102
On September 7, 2007, the defendant Moscowitz, represented by the Office of the Attorney General, filed a motion to dismiss the entirety of the plaintiff's complaint. He asserts that this court does not have subject matter jurisdiction. Specifically the defendant claims that the plaintiff's claims against him in his capacity as a special public defender are barred by sovereign immunity; that statutorily, Gen. Stat. 4-165 bars the plaintiff's individual capacity claims; that a public defender does not act under color of state law for purposes of 42 U.S.C. 1983 and finally, since the plaintiff's criminal sentence has neither been reversed nor invalidated, this court is without subject matter jurisdiction.
The pro se plaintiff's brief in opposition to this motion characterizes the defendant's conduct as "wanton, reckless and malicious." The plaintiff also accuses the defendant of "a pattern of repeated offenses, conduct involving dishonesty, fraud, deceit, misrepresentation, and condor (sic) toward the tribunal." The plaintiff argues that sovereign immunity does not bar his claim because he seeks Declaratory Relief on the basis that the defendant violated the plaintiff's constitutional rights. See Tuchman v. State, 89 Conn.App. 745 (2005). The plaintiff further argues that Gen. Stat. 4-165 does not bar his claims because the acts of the defendant as described in the complaint were wanton, reckless or malicious. The plaintiff asserts that since the defendant was paid as a special public defender by the state of Connecticut that the defendant was acting "under color of state law." Finally, the plaintiff argues that Heck v. Humphrey does not apply to his claim because he is not seeking to attack his criminal sentence.
A.
On April 27, 2007, the plaintiff, Jorge H. Rodrigues, commenced the present action against the defendant, Michael Moscowitz in both his individual and official capacities. The complaint states on or about July 13, 2006, the plaintiff was arrested and charged with robbery in the first degree (Gen. Stat. 53a-134) and several other crimes. The defendant Moscowitz was appointed as a special public defender to represent the plaintiff on these criminal charges. The complaint is critical of the manner in which the defendant Moscowitz represented the plaintiff. The plaintiff alleges in his complaint that his constitutional rights, state and federal, were violated by the defendant's ineffective assistance and that this "negatively affected plaintiff's case." The plaintiff claims that the defendant did not communicate with him in a prompt and effective manner, that the defendant did not aggressively pursue a motion to lower the bond in violation of the state constitution. When the plaintiff expressed dissatisfaction with the defendant's services, the defendant encouraged the plaintiff to retain private counsel. The plaintiff complains of his poverty and inability to retain private counsel or afford bond. The plaintiff further complains about the plea negotiations and the defendant's failure to pursue discovery and testing of the weapon used during the robbery. The plaintiff was dissatisfied with the recommended sentence coming out of the pretrial process and the plaintiff considered it a threat when the defendant advised him that he would likely receive a longer sentence if convicted after a trial. Further he claims the defendant failed to pursue testing of the firearm allegedly used in the commission of the crime, disclosure of exculpatory materials, viewing of video cassettes and sending an investigator to interview witnesses. Eventually the plaintiff asked the defendant to withdraw as his attorney and filed a complaint against the defendant with the Statewide Bar Grievance Committee. The plaintiff wrote a letter of apology to the victims of the crime in the hopes that such a letter would induce the court to recommend a lesser sentence than previously offered. Instead the letter was forwarded to the prosecution. The plaintiff claims that he suffered extreme emotional anguish because of the disloyal and ineffective assistance of counsel. In essence he asserts that the defendant did not defend him zealously and was not "loyal" to the plaintiff. The plaintiff seeks as relief compensatory and punitive damages and a declaratory judgment that the defendant's "practices" violated his constitutional rights and that the actions/inactions of the defendant violated "rules, guideline, statutes, ordinance of Attorney and Special Public Defenders Service Commission." On July 6, 2007 the plaintiff was sentenced to twelve years in prison as a consequence of his earlier guilty plea to the charge of Robbery in the first degree.
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 . . . 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. 205, 210-11, 897 A.2d 71 (2006). "[I]t 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 . . ." (Citation omitted; internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, 279 Conn. 672, 678, 904 A.2d 182 (2006). "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, including on appeal . . ." (Citations omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
"The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "The burden rests with 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.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). "[E]very presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006). "When a 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.) Cox v. Aiken, supra, 278 Conn. 211.
B. OFFICIAL CAPACITY
The plaintiff has brought this action, in part, against the defendant in his official capacity as special public defender. The defendant asserts that as a state employee he is protected by the doctrine of sovereign immunity. "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . ." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). "[Connecticut has] long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal rights as against the authority that makes the law on which the rights depends . . ." (Citations omitted; internal quotation marks omitted.) Id., 313-14. "[T]he state [as a legal entity] can act only through its officers and agents, [and therefore] a suit against a state officer or employee is in effect one against the sovereign state . . ." (Citation omitted; internal quotation marks omitted.) Lemoine v. McCann, 40 Conn.App. 460, 463, 673 A.2d 115, cert. denied, 237 Conn. 904, 674 A.2d 1330 (1996). General Statute § 4-141 includes within the definition of state officers and employees "attorneys appointed by the court as special assistant public defenders . . ."
In the present case the defendant Moscowitz, in accordance with General Statute § 4-141, was a state officer or employee while performing his duties as a special public defender. As suits against a state officer or employee acting in their official capacity are unconditionally suits against the state, the defendant is correspondingly entitled to the protection afforded by the doctrine of sovereign immunity. The Supreme Court has, however, recognized limited exceptions to the doctrine of sovereign immunity, which if satisfied, would allow the plaintiff's complaint to survive the motion to dismiss. The exception applicable in this circumstance is that "when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights" sovereign immunity is inapplicable. Tuchman v. State, 89 Conn.App. 745, 753, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). The plaintiff's complaint prays for declaratory relief and alleges that his constitutional rights to effective assistance of counsel, access to the court and equal protection were violated by the defendant. The Supreme Court has imposed specific pleading requirements which must be met before sovereign immunity can be circumvented by this exception. "[T]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests . . . In the absence of a proper factual basis in the complaint to support the applicability of [this exception], the granting of a motion to dismiss on sovereign immunity grounds is proper." (Citations omitted; emphasis added; internal quotation marks omitted.) Tuchman v. State, supra, 89 Conn. 754.
The plaintiff alleges his right to effective assistance of counsel was violated because the defendant did not conduct his defense of the plaintiff in accordance with the plaintiff's wishes. In support of this the plaintiff alleges various reasons why this is the fault of the defendant. "It is well established that the sixth amendment right to counsel is a right to effective assistance of counsel, whether that counsel is privately retained or court-appointed . . . The standard used to review claims of ineffective assistance of counsel is whether defense counsel's performance [was] reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . The plaintiff, Rodriguez, however, has the burden to show that his counsel's conduct fell below that standard and that the lack of competency contributed to the conviction." State v. Hamilton, 30 Conn.App. 68, 84, 618 A.2d 1372 (1993), aff'd, 226 Conn. 234, 636 A.2d 760 (1994).
The allegations of the plaintiff's complaint and the supporting documentation appended to the complaint document the plaintiff's dissatisfaction with the defendant's service and advice, and his disagreement not with the defendant's recommended sentence but rather the sentence that the court indicated it would offer based upon the allegations in the case. The State Grievance Panel concluded that no probable cause of misconduct existed. The plaintiff alleges that the defendant's conduct "negatively" impacted the plaintiff's defense. These allegations are not sufficient to support a claim that fits within the exception of the sovereign immunity defense. The "practices" upon which the plaintiff bases his claims for declaratory and injunctive relief do not state substantial claims regarding the violation of the plaintiff's constitutional rights. Therefore, for the reasons described above the motion to dismiss the complaint directed against the defendant in his official capacity is granted because the court does not have subject matter jurisdiction to adjudicate the case.
C. INDIVIDUAL CAPACITY
The plaintiff brought suit against the defendant in his individual capacity for violations of state law. The defendant argues that statutory immunity conferred by General Statute § 4-165 applies to bar the case. "Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006). The lack of subject matter jurisdiction, if found, is a proper ground to grant a motion to dismiss. Vitale v. Zoning Board of Appeals, supra, 279 Conn. 678.
General Statute § 4-165 provides in pertinent part: "(a) 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 . . . (b) For the purposes of this section, (1) `scope of employment' includes but is not limited to, (A) representation by an attorney . . . appointed by the court as a special assistant public defender . . ." The second part of § 4-165 echoes the definition of state officers and employees as defined in General Statute § 4-141, given above.
In the present case, the plaintiff alleges the defendant was appointed and acted as his special public defender at the time of the alleged civil rights violations and the ineffective assistance of counsel claims. Section 4-165, therefore, protects the defendant from personal liability because he was acting within the scope of his employment at the time. Statutory immunity is abrogated, however, if the defendant was acting in a wanton, reckless or malicious manner at the time of the civil rights violations. Such action by the defendant, if properly alleged by the plaintiff, would remove the statutory immunity afforded to the defendant by § 4-165 and allow the complaint to survive the motion to dismiss.
The Supreme Court has defined conduct as sufficiently wanton, reckless or malicious if "the plaintiff [can] prove, on the part of the [defendant], the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [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 . . . [In sum, 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 . . ." (Citations omitted; internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 379-80, 802 A.2d 814 (2002).
The allegations of this complaint do not describe conduct of the defendant that was wanton, willful or reckless. The allegations describe a disagreement between the plaintiff and the defendant about the best manner to conduct the plaintiff's defense to pending criminal charges. These allegations are insufficient to bring this claim within the exceptions that would allow a suit to be filed against the defendant in his capacity as a special public defender.
"[A] criminal defendant's proper remedy for any illegal detention is by resort to the courts by means of a petition for writ of habeas corpus . . . Indeed, the central purpose of a writ of habeas corpus is to test the legality of detention . . . A claim of ineffective assistance of counsel, such as that made by the plaintiff here, is a well-recognized basis of a habeas corpus petition." (Citations omitted; internal quotation marks omitted.) Bloor v. Rodriguez-Schack, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV94 0543119 (February 15, 1995, Allen, State Judge Referee). Further, there were other changes pending against the plaintiff that provided a basis for the incarceration of the plaintiff.
For the reasons stated above, the motion to dismiss the portion of the complaint against the defendant in his individual capacity is granted because statutory immunity applies to deprive the court of subject matter jurisdiction.
D. MONEY DAMAGES
The plaintiff's prayer for relief also includes a request for money damages. The defendant argues this portion of the complaint should be dismissed for failure to comply with the pertinent administrative procedures. General Statute § 4-165 provides a plaintiff with an alternate avenue of recovery if the state employee, such as the defendant in the present case, is protected by statutory immunity. Section 4-165 provides, in relevant part: "Any person having a complaint for such damages or injury shall present it as a claim against the state under the provisions of this chapter." This claim presentment requirement refers to the administrative procedure which authorizes the claims commissioner to waive the protection afforded to the state under the doctrine of sovereign immunity. This allows the suit against the state for damages to proceed. See General Statute § 4-160.
"Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff's claim." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 251, 851 A.2d 1165 (2004). "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
The defendant argues the plaintiff entirely failed to file any claim with the claims commissioner in accordance with the relevant administrative procedures. There are also no facts alleged in the plaintiff's complaint which would allow the court to objectively draw an inference that the plaintiff abided by the required administrative procedures. In the absence of the plaintiff first filing a proper claim with the claim commissioner, let alone receiving the claim commissioner's authorization letter stating the state has affirmatively waived its sovereign immunity, the portion of the complaint seeking money damages from the defendant is dismissed for failure to exhaust the appropriate administrative procedure.
II. FEDERAL CLAIMS AGAINST THE DEFENDANT A. OFFICIAL CAPACITY
The plaintiff also brought suit against the defendant in his official capacity seeking declaratory relief, monetary compensation, punitive damages, attorneys fees and costs "all pursuant to 42 U.S.C. § 1983. Federal law on this matter, however, is clearly against the plaintiff. "A state . . . is not a `person' within the meaning of § 1983 and thus is not subject to suit under § 1983 in either federal court or state court . . . This rule also extends to state officers sued in their official capacities." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 311. The plaintiff's claim against the defendant in his official capacity, since it is actually a claim against the state and the state is not subject to suit under § 1983, is therefore dismissed.
42 U.S.C. § 1983 states: "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 for redress . . ."
B. INDIVIDUAL CAPACITY
The plaintiff also brings suit against the defendant individually pursuant to 42 U.S.C. § 1983. "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 . . ." (Citation omitted; emphasis added; internal quotation marks omitted.) Tuchman v. State, supra, 89 Conn.App. 762. The requirement that the defendant act under color of state law is a "jurisdictional requisite for a § 1983 action." Polk County v. Dodson, 454 U.S. 312, 315, 102 S.Ct 445, 70 L.Ed.2d 509 (1981).
The plaintiff specifically alleges that the defendant, as his special public defender, violated his constitutional rights while acting as his criminal defense attorney. The defendant argues as the plaintiff's special public defender he is not subject to suit under § 1983. "[A] public defender does not act under color of state law [for 42 U.S.C. § 1983 purposes] when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Polk County v. Dodson, supra, 454 U.S. 325. The plaintiff, therefore, cannot meet the bare jurisdictional requirement to maintain a § 1983 action. Also, as discussed above, the plaintiff has failed to clearly allege any of his protected constitutional rights were violated by the defendant. Therefore, the case against the defendant in his individual capacity brought pursuant to § 1983 should be dismissed.
CONCLUSION
For all of the above reason's the defendant's motion to dismiss is granted.