Opinion
No. CV-07-4027998
October 30, 2008
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#113)
The plaintiff has brought this § 1983 action against the defendant, his former probation officer, for the claimed failure to timely issue an arrest warrant for violation of probation. The defendant moves to strike the complaint for failure to state a claim upon which relief can be granted, and in the alternative, under the doctrine of qualified immunity.
This is a suit against the defendant in her individual capacity only; a prior court decision dismissed the action against her in her official capacity (see ruling #109).
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
"Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
The defendant argues that the plaintiff has failed to state a claim upon which relief can be granted, as he has failed to allege, as required in a § 1983 action, that a right secured under the Constitution was violated by a person acting under color of state law. Tuchman v. State, 89 Conn.App. 745, 762 (2005). The plaintiff complains that his due process rights were violated by the defendant who failed to timely serve a violation of probation warrant upon him.
The specific facts that the plaintiff relies upon to support his claims are as follows. On October 18, 2005 the plaintiff was sentenced to one year incarceration, execution suspended after ninety days, and a two-year period of probation. In July 2006 he was arrested on various charges. He was on probation at that time. The defendant prepared a violation of probation warrant on May 17, 2007; probable cause was found by the court on May 23, 2007 and the plaintiff was arrested on the violation of probation warrant on May 30, 2007.
General Statutes § 53a-32 provides as follows: "At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation . . ." That is what occurred in the plaintiff's case. During the term of his probation, he was served with a violation of probation warrant. Under no stretch of the imagination can it be said that he was deprived of any due process right for his arrest, during the term of his probation, for a violation of probation.
Plaintiff has cited this court to several decisions of our courts that have held that there can be a violation of due process when a warrant charging violation of probation has not been served with reasonable diligence. In State v. Soldi, 92 Conn.App. 849 (2006), our Appellate Court held that a five-year delay in the execution of a violation of probation warrant implicated the defendant's rights of due process and thus, the burden shifted to the state to show that the delay was not unreasonable.
General Statutes § 53a-32 requires that the probation officer shall immediately notify the court of an individual's arrest for violation of probation and "upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing . . ." In the present case, the plaintiff has failed to state a ground upon which relief can be granted as he has failed to allege that he was denied due process. The plaintiff received all the rights accorded to him under General Statutes § 53a-32; he was served with a warrant during the term of his probation, and he was served with that warrant one week after it was signed by a judge of the Superior Court.
For all the foregoing reasons, the Motion to Strike (#113) is granted.