Shawn Lowery v. S. Shea, Sgt. et al. (2010)

MEMORANDUM OF DECISION ON MOTION TO DISMISS # 101

On June 11, 2009, the plaintiff, Shawn K. Lowery, commenced this suit against the defendants Sergeant Stephen Shea, Officer Steven Silk, Officer Elizabeth Rivera, Officer Robert Maturo, Officer Richard Miller, and Officer Robert Levy. In his complaint, the plaintiff alleges that the defendants assaulted him during an arrest they made in their official capacities as police officers for the New Haven police department.   On August 7, 2009, the defendants filed a motion to dismiss the plaintiff's complaint on the ground that the court lacks jurisdiction for insufficiency of process.   The defendants filed a memorandum of law in support of their motion.   On November 4, 2009, the plaintiff filed an objection to the defendants' motion.   The defendants filed a reply brief on November 9, 2009.   Papers were taken on this matter at short calendar on December 14, 2009.

“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.)  Caruso v. Bridgeport, 285 Conn. 618, 627 (2008).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”   Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687 (1985), citing Practice Book § 10-31.  “Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book ․ the plaintiff's complaint must contain the basic information and direction normally included in a writ of summons.”  Hillman v. Greenwich, 217 Conn. 520, 526 (1991).  “A defect in process ․ implicates personal jurisdiction, rather than subject matter jurisdiction ․ [T]he Superior Court ․ may exercise jurisdiction over the person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction.”  (Citation omitted;  internal quotation marks omitted.)  Rock Rimmon Grange # 142, Inc. v. Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415-16 (2005).

In their memorandum of law in support of their motion to dismiss, the defendants argue that the court lacks personal jurisdiction over the defendants because the plaintiff has not provided a recognizance, as required by Practice Book § 8-4.   The defendants argue that the plaintiff's failure to provide a recognizance subjects this case to dismissal for insufficiency of process.   In his objection to the defendants' motion to dismiss, the plaintiff argues that because he is pro se and proceeding in forma pauperis, he should not be required to declare financial responsibility.   He cites Practice Book § 8-4(b) in support of his argument.   In their reply brief filed on November 9, 2009, the defendants argue that § 8-4(b) is inapplicable to the present case as this case is not a summary process matter.

Practice Book § 8-4 states in relevant part:  “(a) Except as provided below, in all actions wherein costs may be taxed against the plaintiff, no mesne process shall be issued until the recognizance of a third party for costs has been taken, unless the authority signing the writ shall certify thereon that he or she has personal knowledge as to the financial responsibility of the plaintiff and deems it sufficient. (b) No recognizance shall be required of a pro se complainant in a summary process action ․” The Superior Court has consistently held “that the failure of a plaintiff to comply with § 8-4 [results] in insufficient service, and consequently ․ [a] defendant's motion to dismiss [should be granted].”   Guilani v. Bak, Superior Court, judicial district of Windham, Docket No. CV 09 5004519 (August 31, 2009, Riley, J.) (48 Conn. L. Rptr. 430);  accord Barr, Inc. v. Central Construction Industries, LLC, Superior Court, judicial district of Windham, Docket No. CV 06 4004596 (September 1, 2006, Riley, J.);   Hyman v. National Association for the Advancement of Colored People, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0195524 (May 6, 2004, Lewis, J.T.R.).   Plaintiffs who are indigent or who are inmates are not exempt from filing a recognizance.   See Loughery v. Commissioner of Corrections, Superior Court, judicial district of Hartford, Docket No. CV 01 0812161 (July 9, 2002, Hennessey, J.).

In the present case, the plaintiff's summons does not contain a recognizance of a third party.   The plaintiff's contention that he is excused from providing a recognizance pursuant to Practice Book § 8-4(b) is without merit as the present action is not a summary process action.   Furthermore, his status as an indigent and inmate do not exempt him from complying with the Practice Book. Accordingly, because the plaintiff has failed to comply with Practice Book § 8-4 by failing to provide a recognizance, the court grants the defendants' motion to dismiss for insufficiency of process.

Maureen M. Keegan, J.

Keegan, Maureen M., J.