Opinion
No. CV09 5032806S
June 15, 2011
MEMORANDUM OF DECISION IN RE MOTION TO DISMISS (#101)
Facts
Ian Wright, a self-represented plaintiff, filed this suit for malpractice under state law and conspiracy to deny access to the courts under 42 U.S.C. §§ 1985(2), (3) and 1986 against both defendants, Attorney Sebastian O. DeSantis and the public defender services commission (commission). On November 13, 2009, the plaintiff commenced this action by service of process on DeSantis at 345 State Street, New London, Connecticut, and the commission at 2275 Silas Deane Highway, Rocky Hill, Connecticut. The complaint is difficult to construe because the plaintiff has not divided his state law claim and federal law claims into separate counts. Additionally, the plaintiff has not explicitly indicated on the face of his complaint whether he is suing DeSantis in his official capacity or his individual capacity.
In the first paragraph of his complaint, the plaintiff alleges the following: "This is a suit for Malpractice and conspiracy to deny access to the courts, Obstruction of Justice and violation of Equal Protection under the Law. The Malpractice is being brought under State Laws and the remaining in accordance with 42 U.S.C. 1985 Sec. (2) (3) and 42 U.S.C. 1986. This suit is being asserted against both Attorney Sebastian O. DeSantis and the Public Defender Service Commission."
The complaint alleges the following facts. Four years ago, the plaintiff filed a writ of habeas corpus in which he claimed ineffective assistance of counsel. Specifically, he alleged that his trial, appellate and habeas corpus counsels were ineffective in his proceedings. Subsequently, the habeas corpus unit of the public defender's office appointed DeSantis to represent the plaintiff. Since his appointment as the plaintiff's counsel, DeSantis has refused to comply with the plaintiff's multiple requests in the following ways. DeSantis has: (1) failed to obtain information regarding an eyewitness who claimed to be at the scene of the crime of which the plaintiff is convicted; (2) failed to provide the plaintiff with the transcripts of the criminal trial of the plaintiff's codefendant; and (3) failed to argue in the plaintiff's amended petition that the plaintiff's conviction should be vacated pursuant to " State v. Dash, SC-15569."
The plaintiff further alleges that he has filed "this suit of Malpractice as several years have elapsed since the [plaintiff's] Habeas Corpus was filed, and because the plaintiff has a right to a swift remedy in a habeas corpus matter said counsel has precipitated Malpractice as the plaintiff has not received his day in court as required by the Constitution and he is require[d] effective assistance of counsel."
Additionally, the plaintiff alleges the following facts. The commission was advised of DeSantis' conduct and failed to protect the plaintiff's rights of access to the courts and effective assistance of counsel. It "stood by and watch[ed] and continues to watch" as the plaintiff's rights are being violated. The director of special public defenders has a duty under " Rivera v. Rowland, CV95-0545629-S" to investigate the plaintiff's claims. Specifically, these duties are (1) to periodically ask judges about the quality of the special public defenders' representation and advocacy and (2) to consult with the chief of habeas corpus service to evaluate the representation of the special public defenders who handle habeas corpus matters. The commission has been derelict in its duties and has "sat back and watch[ed]" as the plaintiff's constitutional rights have been violated.
The final part of the complaint is labeled "Relief Requested" and seeks the following:
"Temporary injunction ordering [the commission] to investigate the performance of the plaintiff's counsel.
"Injunction preventing Attorney Sebastian O. DeSantis from seeking to dismiss the plaintiff's case in retaliation for this suit.
"An order of the court ordering [the commission] to issue the plaintiff a lawyer of his choice who will represent him in a effective manner.
"Compensatory damages in the amount of $10,000.00 or the equivalent to be paid back to the State of Connecticut for the fleecing of State."
On January 8, 2010, an assistant attorney general filed an appearance for both defendants. On July 13, 2010, the defendants filed a motion to dismiss on the ground that they are immune from suit. On the same day, they filed a memorandum of law in support of their motion. On March 7, 2011, the plaintiff filed an objection to the motion along with a memorandum of law in support. The plaintiff attached to his memorandum a copy of DeSantis' supplement to his motion to withdraw appearance in the plaintiff's habeas matter dated January 19, 2010. On March 7, 2011, the court heard oral argument at short calendar.
Discussion
"[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.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "Claims involving the doctrines of common-law sovereign immunity and 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). Accordingly, "a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).
"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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
"[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party . . . Nonetheless, [a]lthough we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Citation omitted; internal quotation marks omitted.) New Haven v. Bonner, 272 Conn. 489, 497-98, 863 A.2d 680 (2005).
The parties' briefs do not adequately address the complexity of the issues before the court. They do not distinguish their discussions of the state law claims and the federal claims. The distinction is important because state law claims are subject to state law sovereign immunity while federal law claims are subject to federal law sovereign immunity. Accordingly, the court will address the state law claim separately from the federal law claims.
Additionally, it is unclear as to whether the plaintiff is suing DeSantis in his official capacity or his individual capacity. While the plaintiff argues in his brief that he is suing DeSantis in his individual capacity, it is not readily apparent from the face of the complaint. In his brief, DeSantis does not mention the capacity in which he is sued. The distinction between official capacity and individual capacity matters because it determines the character and scope of immunity available to DeSantis. Accordingly, within the discussion of both the state claim and the federal claims, the court will therefore address whether the plaintiff is suing DeSantis in his official or individual capacity.
State Law Claim Against the Commission
In his complaint, the plaintiff brings a state law malpractice action against DeSantis and the commission. The commission argues that as an agency of the state it is immune from suit regardless of the nature of the allegations. The plaintiff counters that because he is suing the commission for injunctive relief, sovereign immunity is waived.
"`We have long recognized the common-law principle that the state cannot be sued without its consent . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer [or agent] concerning a matter in which the officer [or agent] represents the state is, in effect, against the state . . . Therefore, we have dealt with such suits as if they were solely against the state and have referred to the state as the defendant.' . . . Bloom v. Gershon, 271 Conn. 96, 107, 856 A.2d 335 (2004). The doctrine of sovereign immunity `protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable.' Shay v. Rossi, 253 Conn. 134, 165, 749 A.2d 1147 (2000), overruled in part, Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003)." (Internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 751, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
General Statutes § 51-289 establishes the commission, which is responsible for policy making, appointments of all personnel, and compensation matters regarding the division of public defender's services. As an entity of the state, the commission may be entitled to common-law sovereign immunity.
General Statutes § 51-289 provides in relevant part: "(a) There is established a Public Defender Services Commission . . ."
"Our Supreme Court . . . has recognized that when an action against the state seeks damages as well as declaratory or injunctive relief, each should be treated separately. See, e.g., Barde v. Board of Trustees, 207 Conn. 59, 60-61, 539 A.2d 1000 (1988) (treating separately plaintiff's claims for injunctive relief, damages; as to damages, plaintiff required to proceed through claims commissioner; as to injunctive relief, plaintiff must establish constitutional violations); Fetterman v. University of Connecticut, 192 Conn. 539, 553, 473 A.2d 1176 (1984) (treating separately claims for damages, declaratory relief)." Tuchman v. State, supra, 89 Conn.App. 752 n. 4.
"It has long been recognized that `[w]hen a plaintiff brings an action for money damages against the state, he must proceed through the office of the claims commissioner pursuant to chapter 53 of the General Statutes, §§ 4-141 through 4-165. Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity.' Prigge v. Ragaglia, 265 Conn. 338, 349, 828 A.2d 542 (2003)." Tuchman v. State, 89 Conn.App. 752.
In the present case, the plaintiff does not allege that he has received permission from the office of the claims commissioner to bring claims for damages against the state. Therefore, the doctrine of sovereign immunity bars that portion of the plaintiff's state law malpractice claim against the commission.
"[T]he sovereign immunity enjoyed by the state is not absolute. There are exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity; Martinez v. Dept. of Public Safety, CT Page 13762 263 Conn. 74, 86, 818 A.2d 758 (2003); (2) 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; Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987); and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority. Antinerella v. Rioux, 229 Conn. 479, 497, 642 A.2d 699 (1994), overruled in part by Miller v. Egan, [ supra, 265 Conn. 325]." DaimlerChrysler Corp. v. Law, 284 Conn. 701, 720-21, 937 A.2d 675 (2007).
The plaintiff neither alleges in his complaint nor argues in his brief that the legislature has explicitly or impliedly waived immunity from his claims for injunctive relief under state law. Therefore, the court will not address the first exception. Since the second and third exceptions concern injunctive relief, the court will address those exceptions.
"For a claim made pursuant to the second exception, complaining of unconstitutional acts, we require that `[t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests.' Barde v. Board of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988). For a claim under the third exception, `the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations.' Shay v. Rossi, 253 Conn. 134, 174-75, 749 A.2d 1147 (2000), overruled in part by Miller v. Egan, supra, 265 Conn. 325. In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." DaimlerChiysler Corp. v. Law, supra, 284 Conn. 721.
The allegations of the plaintiff's malpractice claim satisfy neither exception two nor exception three. Regarding exception two, the plaintiff does not clearly demonstrate an incursion upon constitutionally protected interests. The plaintiff's use of the phrase "effective assistance of counsel" in describing DeSantis's malpractice while representing him in his habeas corpus petition, does not change what the plaintiff himself calls a "suit for malpractice . . . being brought under state laws" to a suit alleging a violation of the right to effective assistance of counsel during all stages of a criminal proceeding arising under the sixth and fourteenth amendments to the United States constitution or article first, § 8, of the Connecticut constitution. Neither does the plaintiff's allegation that the commission stood by and watched DeSantis' malpractice.
Regarding exception three, the plaintiff has not alleged facts that reasonably demonstrate that the commission acted in excess of statutory authority. The plaintiff has not alleged that the commission has violated a specific statute that governs its authority. The plaintiff does allege that the director of special public defenders, who is not a party to this lawsuit, has a duty to investigate his claims under " Rivera v. Rowland, CV-95-0545629-S." There are several Superior Court decisions in the case named Rivera v. Rowland with that docket number. None of those decisions establish such a duty for the commission.
Thus, the doctrine of sovereign immunity bars the claims for injunctive relief of the plaintiff's state law malpractice claim against the commission.
State Law Claim Against DeSantis
In his complaint, the plaintiff brings a state law malpractice action against DeSantis and the commission. In his brief, DeSantis does not distinguish between the plaintiff's state and federal claims. He argues that he is immune from suit because he is entitled to "statutory sovereign immunity" under General Statutes § 4-165. The plaintiff also does not distinguish between his state and federal claims. The plaintiff argues that DeSantis is being sued pursuant to 42 U.S.C. §§ 1985(2), (3) and 1986 "in his individual capacity and therefore he is not entitled to statutory, sovereign immunity."
The 42 U.S.C. §§ 1985(2), (3) and 1986 claims are separate causes of action from the state law malpractice claim. As a result, they have no effect on DeSantis' immunity to the malpractice claim.
"`Whether a particular action is one against the state is not determined solely by referring to the parties of record.' Somers v. Hill, 143 Conn. 476, 479, 123 A.2d 468 (1956). `If the plaintiff's complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims.' Miller v. Egan, 265 Conn. 301, 307, 828 A.2d 549 (2003)." Kenney v. Weaving, 123 Conn.App. 211, 215-16, 1 A.3d 1083 (2010). "Common-law sovereign immunity is distinct from the statutory immunity provided by § 4-165. See Martin v. Brady, CT Page 13764 64 Conn.App. 433, 438, 780 A.2d 961 (2001), aff'd, 261 Conn. 372, 802 A.2d 814 (2002). By its own terms, § 4-165 applies only to state officers and employees sued in their personal capacities . . ." Hanna v. Capitol Region Mental Health Center, 74 Conn.App. 264, 268, 812 A.2d 95 (2002).
"To determine whether an action is against the state or against a defendant in his individual capacity, we look to the four criteria . . . in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975). If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred. Id., 568. The criteria are: `(1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.' Id." Kenney v. Weaving, supra, 123 Conn.App. 216.
In Spring v. Constantino, supra, 168 Conn. 567-69, the Supreme Court analyzed whether a suit against a public defender may be a suit against the state to which sovereign immunity applies. The court held that a "public defender when he represents his client is not performing a sovereign function and is therefore not a public or state official to whom the doctrine of sovereign immunity applies." Id., 569. It reasoned: "Even though the state must ensure that indigents are represented by competent counsel, it can hardly be argued that the actual conduct of the defense of an individual is a sovereign or governmental act. The principle that the state cannot function both as prosecutor and defender is so deeply rooted in our system of justice as to require no citation." Id. Thus, DeSantis is not entitled to common-law sovereign immunity.
Although they are not entitled to common-law sovereign immunity, special public defenders may be entitled to the statutory immunity under § 4-165. Section 4-165 provides in relevant part: "Immunity of state officers and employees from personal liability. (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. 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.
"(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 Public Defender Services Commission as a public defender, assistant public defender or deputy assistant public defender or an attorney appointed by the court as a special assistant public defender of an indigent accused or of a child on a petition of delinquency . . ."
Our Supreme Court . . . observed that it has `never definitively determined the meaning of wanton, reckless or malicious as used in § 4-165. In the common-law context, however, [the court has] stated: In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must provide, on the part of the defendants, 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 . . . 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.' (Internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 379, 802 A.2d 814 (2002)." Tuchman v. State, supra, 89 Conn.App. 764.
As a special public defender, DeSantis would be immune under § 4-165 if the complaint lacks allegations of wanton, reckless or malicious conduct. In his allegations of malpractice, the plaintiff alleges no facts that indicate that DeSantis' representation of him was wanton, reckless or malicious. Conduct such as failing to obtain transcripts and information about witnesses is not highly unreasonable, involving an extreme departure from ordinary care. Therefore, the statutory immunity of § 4-165 bars the state law malpractice claim against DeSantis.
Federal Claims Against the Commission
In his complaint, the plaintiff alleges a conspiracy to deny access to the courts, obstruction of justice and violation of equal protection under law in violation of 42 U.S.C. §§ 1985(2), (3) and 1986 against both DeSantis and the commission. Despite the fact that the face of the complaint says that the plaintiff is bringing his claims under §§ 1985(2), (3) and 1986, the defendants' brief says that "[t]his is an action for money damages and equitable relief brought pursuant to 42 U.S.C. § 1983 . . ." The commission argues that as an agency of the state, it is immune from suit. It argues that under the United States Supreme Court case, Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), § 1983 does not waive the state's sovereign immunity. The plaintiff counters that because he seeks injunctive relief his claims against the commission are not barred by sovereign immunity.
42 U.S.C. § 1985 provides in relevant part: "Conspiracy to interfere with civil rights . . ." (2) Obstructing justice; intimidating party, witness, or juror. If two or more persons . . . conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;
"(3) Depriving persons of rights or privileges. If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."
42 U.S.C. § 1986 provides: "Action for neglect to prevent. Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued."
42 U.S.C. § 1983 provides in relevant part: "Civil action for deprivation of rights. 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 . . ."
"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.' Howlett v. Rose, 496 U.S. 356, 367, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) . . . A construction of [§ 1983] which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced . . . `The elements of, and the defenses to, a federal cause of action are defined by federal law.' Howlett v. Rose, supra, 375." (Citation omitted; internal quotation marks omitted.) Sullins v. Rodriguez, 281 Conn. 128, 133-34, 913 A.2d 415 (2007).
Much of the federal jurisprudence regarding state sovereign immunity concerns 42 U.S.C. § 1983 claims. In Will v. Michigan Dept. of State Police, supra, 491 U.S. 70-71, the United States Supreme Court held that state governments are not "persons" under § 1983 and therefore may not be sued in state court pursuant to § 1983. The court said that "in deciphering congressional intent as to the scope of § 1983, the scope of the Eleventh Amendment is a consideration." Id., 66-67. The court reasoned that as it had ruled in eleventh amendment cases, Congress may override state sovereign immunity only if it expresses a clear intent to do so. Id., 65. The court said that it "cannot conclude that § 1983 was intended to disregard the well established immunity of a State from being sued without its consent." Id., at 67.
The eleventh amendment to the United States constitution provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
The court will therefore apply the reasoning of Will to hold that states and their agencies are not "persons" under §§ 1985 and 1986. Courts have used Will's reasoning to hold that states are not "persons" under § 1985. See Sharp v. State, 245 Kan. 749, 751, 783 P.2d 343 (Kan. 1989), cert. denied, 498 U.S. 822, 111 S.Ct. 71, 112 L.Ed.2d 45 (1990); Presnick v. Goldberg, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 22 00085 (April 27, 1993, Curran, J.). Moreover, state sovereign immunity regarding §§ 1985 and 1986 is treated the same as § 1983 because Congress passed all sections in the same act. The statutes now known as §§ 1983, 1985 and 1986 were all provisions of the Civil Rights Act of 1871. Kush v. Rutledge, 460 U.S. 719, 724, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983) ("The statutory provision that is now codified as § 1985 of Title 42 of the United States Code was originally enacted as § 2 of the Civil Rights Act of 1871, 17 Stat. 13"); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 665-69, 98 S.Ct. 2018; 56 L.Ed.2d 611 (1978) (discussing provisions of Civil Rights Act of 1871 now codified as §§ 1983 and 1986). "While there is no per se rule of statutory interpretation that identical words used in different parts of the same act are intended to have the same meaning, there is a presumption that this is so." (Emphasis in original.) Lippoldt v. Cole, 468 F.3d 1204, 1213 (10th Cir. 2006). Accordingly, in applying the reasoning in Will to assess state sovereign immunity under §§ 1985 and 1986, sovereign immunity bars the plaintiff's §§ 1985 and 1986 claims against the commission for damages and injunctive relief.
Federal Claims Against DeSantis
In his complaint, the plaintiff alleges a conspiracy to deny access to the courts, obstruction of justice and violation of equal protection under law in violation of 42 U.S.C. §§ 1985(2), (3) and 1986 against both DeSantis and the commission. DeSantis does not make a sovereign immunity argument under federal law regarding the federal claims against him. He only argues that he is entitled to "statutory, sovereign immunity under § 4-165." The plaintiff counters that he is suing DeSantis pursuant to §§ 1985 and 1986 in DeSantis's individual capacity and therefore DeSantis is not entitled to "statutory, sovereign immunity under 4-165." As previously discussed, state law immunity defenses cannot bar federal claims. Sullins v. Rodriguez, supra, 281 Conn. 128, 134. Whether sovereign immunity bars the plaintiff's claims against DeSantis depends on whether the plaintiff is suing DeSantis in his official or individual capacity and on the relief the plaintiff seeks.
Although DeSantis does not make a sovereign immunity argument under federal law, the court will address the issue because sovereign immunity implicates the court's subject matter jurisdiction.
Much of the federal jurisprudence regarding official versus individual capacity involve § 1983 claims. For the same reasons previously discussed in analyzing the definition of "person," the court applies the § 1983 capacity analysis for the §§ 1985 and 1986 claims.
"[T]he Supreme Court has taken the view that Congress did not intend to defeat traditional notions of sovereign immunity in enacting § 1983. Quern v. Jordan, [ 440 U.S. 332, 341, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)] . Instead, these principles inform the meaning of the term `person' as used in § 1983. See, e.g., Will v. Michigan Dept. of State Police, supra, 491 U.S. 71 (`neither a State nor its officials acting in their official capacities are "persons" under § 1983'). Importantly, however, the court later clarified that § 1983 does authorize actions against state officers for damages arising from official acts, if they are sued in their individual capacities. Hafer v. Melo, [ 502 U.S. 21, 23, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)] .
"In Hafer, former Pennsylvania state employees brought a § 1983 claim against the state auditor general for allegedly dismissing the employees because of their political affiliations. Id. The auditor general argued that the claims were barred because she had made the employment decisions in her official capacity. Id. The United States Supreme Court allowed the action. Id., 31. `Personal-capacity suits . . . seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, [o]n the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.' (Emphasis in original; internal quotation marks omitted.) Id., 25. In other words, the requirement of action under color of state law means that a § 1983 defendant's liability is derived from his authority as an official. See id., 27-28. Thus, `the phrase "acting in their official capacities,'" the court said, ` is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.' (Emphasis added.) Id., 26.
"Put another way, state officials sued for money damages in their official capacities are not `persons' within the meaning of § 1983 because the action against them is one against the office and, thus, no different from an action against the state itself. See Will v. Michigan Dept. of State Police, supra, 491 U.S. 71. State officials are, however, `persons' within the meaning of § 1983 and may be held personally liable when sued as individuals for actions taken in their official capacities and, thus, under color of law. See Hafer v. Melo, supra, CT Page 13769 502 U.S. 27." (Emphasis in original.) Sullins v. Rodriguez, supra, 281 Conn. 140-41.
"Of course 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.' Kentucky v. Graham, [ 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)]; Ex parte Young, [ 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908)] ." Will v. Michigan Dept. of State Police, supra, 491 U.S. 71 n. 10.
"[A]lthough the test set forth in Spring [v. Constantino, supra, 168 Conn. 563,] and Miller [v. Egan, 265 Conn. 301,] is an appropriate mechanism for our state courts to determine the capacity in which the named defendants are sued in actions asserting violations of state law, to employ that test to divest state courts of jurisdiction to hear otherwise cognizable § 1983 claims would be to erect a constitutionally impermissible barrier to the vindication of federal rights. See Howlett v. Rose, supra, 496 U.S. 375." Sullins v. Rodriguez, supra, 281 Conn. 136.
As previously discussed, our Supreme Court in Spring held that public defenders fail the test because the "public defender when he represents his client is not performing a sovereign function and is therefore not a public or state official to whom the doctrine of sovereign immunity applies." Spring v. Constantino, supra, 168 Conn. 569.
To determine whether a suit is against a defendant in his or her official or individual capacity federal courts may look to how the complaint is drafted, the defenses raised and other factors. See, e.g., Shabazz v. Coughlin, 852 F.2d 697, 700 (2d Cir. 1988) ("Notwithstanding the complaint's ambiguous language and the defendants' numerous affirmative defenses, Shabazz's request for punitive and compensatory damages, coupled with the defendants' summary judgment motion on qualified immunity but not Eleventh Amendment grounds, suggests that the parties believed that this action is a personal capacity suit").
The drafting of the complaint and DeSantis' arguments indicate that the plaintiff is bringing his federal claims against DeSantis in his individual capacity. The plaintiff seeks an injunction prohibiting DeSantis from seeking to dismiss the plaintiff's habeas matter in retaliation for this suit. Additionally, the plaintiff seeks "Compensatory damages in the amount of $10,000.00 or the equivalent to be paid back to the State of Connecticut for the fleecing of State." Unlike the other parts of his "Relief Requested" the plaintiff does not explicitly direct this claim toward either the commission or DeSantis. The phrase "back to the State" implies that the money will not come out of the state's coffers, but from DeSantis' pockets.
In his brief, the plaintiff consistently argues that he is suing DeSantis in his individual capacity. DeSantis does not make an immunity argument under federal law. The immunity argument he makes regarding the state claim, that he is immune under General Statutes § 4-165, is an argument he can make if he is being sued in his individual capacity. Moreover, the plaintiff served process to DeSantis at his law office's address, not at the commission's address. The preceding indicate that the plaintiff is suing DeSantis in his individual capacity. Therefore, sovereign immunity does not bar the plaintiff's federal claims for damages or injunctive relief against DeSantis.
Conclusion
Accordingly, for the forgoing reasons, the motion to dismiss regarding the malpractice claim against the commission and DeSantis and the 42 U.S.C. §§ 1985(2), (3) and 1986 claims against the commission is granted. The motion to dismiss regarding the 42 U.S.C. §§ 1985(2), (3) and 1986 claims against DeSantis is denied.