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Lonny Bowers v. Town of Plainville Police
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The plaintiff Lonny Bowers brings this action for writ of mandamus to compel the defendant Town of Plainville, specifically its police department, to investigate a claim that a crime was committed. The defendant moves to dismiss this action on the grounds that the court lacks subject matter jurisdiction to issue a writ under these circumstances. The court agrees with the defendant.
The plaintiff's demand for a police investigation grows out of an order issued in August 2010 by the U.S. District Court for the District of Utah permitting individuals accompanied by members of the U.S. Marshals Service to enter upon the plaintiff's property in Plainville to recover certain items that are the subject of civil litigation in Utah. The plaintiff believes that the federal court order was unlawfully issued and executed and he demands that the local police force investigate this miscarriage of justice and consider prosecuting the parties involved in what he believes to have been an illegal seizure of items that he claims belonged to him and him alone. He filed his petition for writ of mandamus in November 2010.
In December 2010, the defendant filed its Motion to Dismiss, and, with neither a challenge to nor a concession of the facts as alleged by the plaintiff, asserted that the court lacked jurisdiction to issue a writ of mandamus because the decision of police officers to investigate a claim that a crime has been committed is a discretionary one, not a mandatory one. The court received briefs from the parties and heard argument on this matter in January 2011.
THE LAW OF MANDAMUS
A writ of mandamus is an extraordinary remedy. “The writ will issue only when the person against whom it is directed is under a clear legal obligation to perform the act compelled and the party seeking the writ has a clear legal right to the performance.” McAllister v. Nochols, 193 Conn. 168, 171, 474 A.2d 792 (1984). The writ is proper only when:
(1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy. (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000).
See Avalonbay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 417, 853 A.2d 497 (2004). While mandamus will compel the performance of a purely ministerial act, it cannot be used to compel the performance of an act involving the exercise of judgment or discretion. Hannifan v. Sachs, 150 Conn. 162, 167, 187 A.2d 253 (1962). A ministerial act is one which must be performed in a prescribed manner without the exercise of judgment or discretion. Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). The question of whether the act sought to be compelled by the plaintiff is mandatory (ministerial) or discretionary is one for the court to decide. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167, 544 A.2d 1185 (1984).
The manner in which a police force is deployed has been held to be within the discretion of the force's supervisors. Gordon v. Bridgeport Housing Authority, supra, 180. Unless the plaintiff can point to a statute that essentially removes such discretion and mandates that the police undertake a particular course of action in the situation, the plaintiff's claim must fail.
THE PLAINTIFF'S CLAIM
The plaintiff claims that he has been the victim of identity theft, which is the subject of a statute that does compel certain kinds of action on the part of a police department. Conn. Gen.Stat. § 54–1n provides
Any person who believes that such person's personal identifying information has been obtained and used by another person in violation of section 53a–129a of the general statutes, revision of 1958, revised to January 1, 2003, or section 53a–129b, 53a–129c or 53a–129d may file a complaint reporting such alleged violation with the law enforcement agency for the town in which such person resides. Such law enforcement agency shall accept such complaint, prepare a police report on the matter, provide the complainant with a copy of such report and investigate such alleged violation and any other offenses allegedly committed as a result of such violation and shall, if necessary, coordinate such investigation with any other law enforcement agencies.
In reviewing the plaintiff's report of this incident to the Plainville police and in reviewing the petition and supporting documents, the court determines that a fair reading of the plaintiff's grievance is not that someone used his identity in violation of the criminal laws. Rather his claim is that the Utah court order was invalid and he wants those who caused the seizure of the disputed property to be investigated and prosecuted.1 The court rejects the plaintiff's belated and unfounded suggestion that this is an identity theft case that the police were bound to investigate under § 54–1n.
The plaintiff reported to the Plainville police what he considered to be a larceny. The Plainville police recorded his complaint, determined it to be part of ongoing civil litigation, and declined to investigate further. The plaintiff cannot use a writ of mandamus to compel the defendant to do more.
CONCLUSION
The requirements for the issue of a writ of mandamus are absent in this case. That being so the court lacks subject matter jurisdiction. The defendant's Motion to Dismiss is granted.
Patty Jenkins Pittman, Judge
FOOTNOTES
FN1. The court notes that the “property” involved was electronically stored confidential information that the Utah federal court ordered retrieved from this plaintiff. The plaintiff was also the object of an order to show cause why he should not be found in contempt of a previous court order in the Utah litigation that he return the confidential information. See attachments to plaintiff's Petition.. FN1. The court notes that the “property” involved was electronically stored confidential information that the Utah federal court ordered retrieved from this plaintiff. The plaintiff was also the object of an order to show cause why he should not be found in contempt of a previous court order in the Utah litigation that he return the confidential information. See attachments to plaintiff's Petition.
Pittman, Patty Jenkins, J.
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Docket No: HHBCV105015173
Decided: April 18, 2011
Court: Superior Court of Connecticut.
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