Opinion
FSTCV165015768S
04-25-2017
Jeffrey Sommers v. Robert Klug et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE [#104]
Irene P. Jacobs, J.
On May 9, 2016, the plaintiff, representing himself, filed the complaint in the instant case in small claims court against the town of Wilton, the Wilton Police Department, and Lt. Robert Klug. By the defendants' June 23, 2016 motion to transfer [#101], this case was transferred to the Superior Court docket. On August 8, 2016, the defendants Wilton Police Department and Klug filed the instant motion to strike the complaint [#104], along with a supporting memorandum of law [#105]. The plaintiff filed an opposing memorandum of law [#106]. The defendants subsequently filed an amended motion to strike [#111], which, correcting a court data entry error, now shows the Town of Wilton as a defendant and as joining in the pending motion to strike. The matter was heard by the court on September 19, 2016.
The complaint alleges the following facts: on August 9, 2015, in Wilton, CT, while in their motor vehicle, the plaintiff and his wife observed a bicyclist operating his bike in an illegal manner. The bicycle operator made threatening and abusive comments to the plaintiff and his wife. The plaintiff delivered a written demand to the Wilton Police Department for the police department to " invoke the legal process" against the bicycle operator. Lt. Klug of the Wilton police department did not investigate the plaintiff's allegations and dismissed them.
The complaint incorporates the alleged facts as described above into three counts: In Count One, the plaintiff alleges that the defendant failed to perform a ministerial duty; that the defendant failed under the Public Duty Doctrine " to bestow upon the plaintiff" equal treatment under the law; and that the defendant denied the plaintiff his equal protection rights under the U.S. Constitution and pursuant to 42 U.S.C. 1983. In Count Two, the plaintiff alleges that the defendants' failure to investigate his claim deprived him of due process under 42 U.S.C. 1983 and Connecticut General Statutes § 29-7. In Count Three, the plaintiff alleges that the defendants' failure to investigate his claim denied him equal rights under Sections 1 and 20 of the Connecticut Constitution. The plaintiff seeks $5, 000.00 in damages, plus costs and reasonable attorney fees " recognizing his efforts on his own behalf."
The defendants base their motion to strike the plaintiff's complaint on the following grounds: (1) Connecticut General Statutes § 52-557n immunizes the town from liability based on police investigations and decision-making related to traffic violations; (2) General Statutes § 29-7 does not create a constitutionally protected right; (3) the complaint fails to state a claim for an equal protection violation under federal or state law; and (4) there is no private right of action under the state constitution equal protection clause.
DISCUSSION
Standard of Review
" Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Connecticut Practice Book § 10-39(a); Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 815 A.2d 1188 (2003). " A motion to strike admits all facts well pleaded." Parsons v. United Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997); RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 650 A.2d 153 (1994). Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 693 A.2d 293 (1997). Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007). The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 889 A.2d 810 (2006). In deciding a motion to strike, the court is limited to considering the grounds specified in the motion to strike. Meredith v. Police Commission, 182 Conn. 138, 438 A.2d 27 (1980).
Count One: Governmental Immunity
In Count One, the plaintiff alleges, " Brought under Title 42 U.S.C. Sec. 1983: Defendant failed to perform a ministerial function required of him under C.G.S., Defendant failed under the public duty doctrine to bestow on the plaintiff equal treatment under the law, and denied the plaintiff his equal protection rights under the U.S. Constitution." Count One does not specify which Connecticut General Statutes section is being invoked by the plaintiff, which function he alleges as being ministerial, or to which defendant the count is addressed. However, the court is cognizant of the fact that the plaintiff represents himself. " [C]onstruction of a self-represented party's pleading should not focus on technical defects, but should afford the [self-represented party] a broad, realistic construction of the pleading under review." Macellaio v. Newington Police Department, 145 Conn.App. 426, 75 A.3d 78 (2013) (internal quotation marks and citation, omitted). " Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties. Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice . . . the purpose of which is to provide a just determination of every proceeding." Argentinis v. Fortuna, 134 Conn.App. 538, 39 A.3d 1207 (2012) (citations and internal quotation marks, omitted). Baker v. Atria Management Co., LLC, Docket No. CV-13-501-4028-S, Superior Court of Connecticut, Judicial District of Stamford-Norwalk, 10/10/13, Povodator, J. In the instant case, the court construes the plaintiff's use of the term " ministerial function" to refer to the investigation of the plaintiff's claim, construes the use of the term " C.G.S." to invoke Connecticut General Statutes § 52-557n, and construes the plaintiff's use of the term " defendant" to mean that the allegation is against the defendant Klug.
A " ministerial function" is a function that does not require the exercise of discretion by, as in this case, a municipal employee. Such functions may be mandated by city charter provision, ordinance, regulation, rule, policy, or any other directive to act in any prescribed manner. Colon v. New Haven, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). The plaintiff in the instant case has failed to allege any specific city charter provision, ordinance, regulation, rule, policy, or any other directive which mandates that the defendant investigate the plaintiff's complaint. Kumah v. Brown, Superior Court, J.D. of Fairfield Docket No. CV-08-501-5502-S, (1/7/09), Bellis, J., rev'd 127 Conn.App. 254, 14 A.3d 1012 (2011); aff'd on other issue, 307 Conn. 620, 58 A.3d 247 (2013). Moreover, he has failed to allege the existence of any policy or directive in place regarding those duties with which the defendants had failed to comply. Kolaniak v. Board of Education, 28 Conn.App. 277, 610 A.2d 193 (1992). As such, the defendant's conduct cannot be said to be ministerial.
A police officer's failure to investigate a citizen's complaint is a matter of police discretion. Brooks v. Powers, 322 Conn. 907, 143 A.3d 603 (2016). Brown v. Dooling, Superior Court, J.D. of Ansonia/Milford at Milford, Docket No. 032598, (1/23/98), Flynn, J. In the instant action, the police officer was engaged in performing a discretionary function when he triaged the plaintiff's complaint. Pursuant to Connecticut General Statutes § 52-557n, a municipality may be liable for the discretionary acts of its employees if the plaintiff falls into the status of an " identifiable victim subject to imminent harm." " The imminent harm exception to discretionary act immunity [for municipalities and their employees] applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm . . ." (Citations omitted; footnote omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 907 A.2d 1188 (2006); Strycharz v. Cady, 323 Conn. 548, 148 A.3d 1011 (2016). " [T]he only identifiable class of foreseeable victims that we have recognized . . . is that of schoolchildren attending public schools during school hours because: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they [are] legally required to attend school rather than being there voluntarily; their parents [are] thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." Grady v. Somers, 294 Conn. 324, 984 A.2d 684 (2009) (Internal quotation marks omitted.) The plaintiff in the instant case does not fall into the only identifiable class of foreseeable victims currently recognized by our courts as triggering an exception to municipal immunity.
The plaintiff alleges in Paragraph 3 of the facts set forth in his complaint that his claim is brought pursuant to Connecticut General Statutes § 29-7, although it is not specifically pled in Count 1. Connecticut General Statutes § 29-7, in its entirety, states:
The Division of State Police within the Department of Emergency Services and Public Protection, upon its initiative, or when requested by any person, shall, whenever practical, assist in or assume the investigation, detection and prosecution of any criminal matter or alleged violation of law. All state policemen shall have, in any part of the state, the same powers with respect to criminal matters and the enforcement of the law relating thereto as policemen or constables have in their respective jurisdictions. The Commissioner of Emergency Services and Public Protection shall devise and make effective a system of police patrols throughout the state, exclusive of cities and boroughs, for the purpose of preventing or detecting any violation of the criminal law or any law relating to motor vehicles and shall establish and maintain such barracks or substations as may prove necessary to accomplish such purpose.
Connecticut General Statutes § 29-7 applies only to state policemen. New England Health Care, Employees Union, District 1199, SEIU/AFL-CIO v. Rowland, 221 F.Supp.2d 297 (D.Conn. 2002); United States v. Markland, 635 F.2d 174 (2d Cir. 1980). No provision of General Statutes § 29-7 imposes on a municipal police officer the duty to act.
In Count 1, the plaintiff has also alleged the defendant's failure to bestow equal treatment on him " under the public duty doctrine." There is no dispute that the defendant was performing a public duty in responding to the plaintiff's call. However, the public duty doctrine merely provides the starting point of the analysis as to whether governmental immunity applies. Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 161 (1988). " [W]hether a public or private duty is established, there is no potential liability if the act complained of is a discretionary act that does not fit into any of the narrow exceptions . . ." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988). As this court has determined that the defendant was performing a discretionary function to which no exception applies, there is no potential liability in the instant case under, as the plaintiff frames it, the public duty doctrine.
The court notes that the defendants have not filed the special defense of governmental immunity. This, however, is not fatal to their motion to strike. " Where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Internal quotation marks omitted.) DeConti v. McGlone, 88 Conn.App. 270, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005); accord Doe v. Board of Education, 76 Conn.App. 296, 819 A.2d 289 (2003); Brown v. Branford, 12 Conn.App. 106, 529 A.2d 743 (1987); Trzaska v. Hartford, 12 Conn.Supp. 301 (1943); see also Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988) (" [n]otwithstanding the procedural posture of a motion to strike, [the Connecticut Supreme Court] has approved the practice of deciding the issue of governmental immunity as a matter of law").
Count Two: Due Process
In Count Two, the plaintiff alleges that the defendants' failure to investigate his claim deprived him of due process under 42 U.S.C. 1983 and Connecticut General Statutes § 29-7.
In order to set forth a federal due process claim, a plaintiff must allege a constitutionally protected interest " as a threshold requirement." In the absence of such an interest, " the due process analysis ceases because no process is constitutionally due for the deprivation of an interest that is not of constitutional magnitude." Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 627 A.2d 909 (1993). The plaintiff's federal due process claim is based on Lieutenant Klug's alleged failure to comply with § 29-7. As has been previously discussed, § 29-7 may impose a duty on state police officers to act. State v. Morrill, 197 Conn. 507, 498 A.2d 76 (1985); United States v. Markland, 635 F.2d 174, 176 (2d Cir. 1980), cert. denied, 451 U.S. 991, 101 S.Ct. 2332, 68 L.Ed.2d 851 (1981); Matthews v. Lynch, United States District Court, Docket No. 3:07-cv-739 (WWE), (D.Conn. April 11, 2011); New England Health Care, Employees Union, District 1199, SEIU/AFL-CIO v. Rowland, 221 F.Supp.2d 297, 315 n.31 (D.Conn. 2002). Section 29-7 does not implore a municipal police officer to act.
In the present case, the plaintiff alleges that Klug's failure to act in accordance with § 29-7 deprived the plaintiff of his federal due process rights. The plaintiff alleges that: (1) the town is a municipality; (2) the Wilton Police Department is employed by the town; and (3) Klug is a supervisory police officer employed by the Wilton Police Department. Taking the plaintiff's allegations as admitted, the court concludes that the plaintiff has failed to allege that Klug violated any duty imposed by § 29-7. Accordingly, Klug's failure to act did not constitute Klug's depriving the plaintiff of any right.
The plaintiff's constitutional rights, both state and federal, have not been violated. " [T]he benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the [d]ue [p]rocess [c]lause, neither in its procedural nor in its 'substantive' manifestations." (Internal quotation marks omitted.) " The plaintiff does not have a property right to such an investigation . . . because an investigation is process." Morgan v. Bubar, 115 Conn.App. 603, 975 A.2d 59 (2009). In his complaint, the plaintiff does not explicitly state he seeks the arrest of the biker, but makes it clear he would like the Wilton Police Department to " issue traffic summonses" and that " [his] wife and [he] are willing and anxious to appear . . . and issue sworn statements and to testify in open court against this dangerous biker." (Complaint Ex. A, p. 1.) As stated in Morgan, this type of interest is insufficient to prove a violation of the plaintiff's due process rights under the Fourteenth Amendment of the constitution of the United States.
In the present case, the plaintiff has not alleged the existence of any specific rule, policy, or directive governing the procedures Klug or Wilton Police Department should take when accepting a hand-delivered grievance. The plaintiff cites General Statutes § 29-7, but, as discussed above, the plain language of the statute does not confer an affirmative duty or procedure governing what Klug should have done after receiving the plaintiff's hand-delivered grievance. Since no specific policy was cited by the plaintiff even generally, Klug's actions is considered discretionary and immunity under § 52-577n applies.
Count Three: Equal Protection
In Count Three, the plaintiff alleges: " The defendant denied the plaintiff his rights under 'all citizens are equal in rights, ' and § 20, the equal protection clause." However, the constitution of Connecticut does not provide for a private right of action based on a violation of article first, § 1 or § 20. In Spector v. Board of Trustees of Community-Technical Colleges, 463 F.Supp.2d 234 (D.Conn. 2006), relying in part on Ward v. Housatonic Area Regional Transit District, 154 F.Supp.2d 339 (D.Conn. 2001), the court stated: " Article First, Section Twenty of the Connecticut Constitution does not provide a private cause of action." Spector v. Board of Trustees of Community-Technical Colleges, supra, 254. In Ward , the court found " that there is no private cause of action for monetary damages under the equal protection and due process provisions (Art. First, § § 1, 8 and 20) of the Connecticut Constitution." Ward v. Housatonic Area Regional Transit District, supra, 356.
Article first, § 1, of the Connecticut constitution provides: " All men when they form a social compact, are equal in rights . . ." Article first, § 20, of the Connecticut constitution provides: " No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin."
In addition, the plaintiff has failed to allege facts which support a state equal protection claim. " [T]he fourteenth amendment to the United States Constitution provides that '[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.' Article first, of the constitution of Connecticut contains similar language and has been determined to have a like meaning and to impose similar limitations." Tuchman v. State, 89 Conn.App. 745, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). To successfully allege a federal equal protection claim, a plaintiff may " show that a governmental actor has intentionally discriminated on the basis of race, ethnicity, or national origin and without a compelling purpose and use of narrowly tailored means in doing so." (Citations omitted; internal quotation marks omitted.) Grenier v. Stratton, 44 F.Supp.3d 197, 203 (D.Conn. 2014). In his complaint, the plaintiff has failed to allege that Klug discriminated against him intentionally based on his race, ethnicity, or national origin.
As to the plaintiff's federal equal protection claim, the defendants argue that the plaintiff has failed to state a claim for an equal protection violation under federal law because citizens do not hold a right to compel the police to initiate judicial process against another, there is no constitutional right to demand further investigation before arrest or prosecution, and there is no constitutional right to an investigation by government officials.
Although a due process plaintiff must allege the deprivation of some protected interest, " [t]here is no similar doctrine requiring a plaintiff to show that it clearly was entitled to a protectable property interest in order to trigger the federal or state equal protection guarantees." (Emphasis omitted.) City Recycling, Inc. v. State, 257 Conn. 429, 778 A.2d 77 (2001). " [T]he concept of equal protection [under both the state and federal constitutions] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged." (Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407 (2008). As mentioned previously, to successfully allege a federal equal protection claim a plaintiff may " show that a governmental actor has intentionally discriminated on the basis of race, ethnicity, or national origin and without a compelling purpose and use of narrowly tailored means in doing so." (Citations omitted; internal quotation marks omitted.) Grenier v. Stratton, supra, 44 F.Supp.3d 203. " The Equal Protection Clause undoubtedly applies to affirmative enforcement decisions that police officers make on patrol, such as to a patrol officer who decides to make a traffic stop on the basis of a driver's apparent race . . . So, too, the Equal Protection Clause may apply to police inaction--if the police decline to perform their duties because of the race, ethnicity, or national origin of the member of the public to be protected." Id.
" A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." (Internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection, 253 Conn. 661, 757 A.2d 1 (2000). Nowhere in his complaint does the plaintiff indicate how he was treated differently than any other person in a similar situation, or that the motivation of the defendants' inaction was due to his race, ethnicity, or national origin. Without a more specific allegation of how the plaintiff was differently impacted than other members of the community similarly situated, and for what reason he was discriminated against, the complaint is insufficient to establish a claim for a violation of equal protection under the Fourteenth Amendment.
CONCLUSION
For the reasons set forth above, the court grants the defendants' motion to strike the plaintiff's complaint.