James Hanton v. Elizabeth Dolbeare (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 101

By this motion to dismiss the defendant, Elizabeth Dolbeare asserts alternative grounds requiring the dismissal of this lawsuit.   First, if she is sued in her individual capacity, she has been improperly served and thus the court is without personal jurisdiction.   Second, if she is sued in her official capacity as an employee of the State of Connecticut, the court does not have subject matter jurisdiction because the claims asserted are barred by the doctrines of sovereign immunity and statutory immunity.   The plaintiff, James Hanton, argues that he is suing the defendant in her individual capacity and asks for an opportunity to correct any errors in the service of process.

FACTS

On February 17, 2010, the present action was commenced by the self-represented plaintiff, James Hanton, when a state marshal attempted service on the defendant, Elizabeth Dolbeare, by leaving a copy of the writ, summons, and complaint in the hands of an assistant attorney general at the offices of the state attorney general in Hartford.   Hanton subsequently filed a three-count complaint on February 19, 2010, alleging the following facts.   Hanton filed a petition for a writ of habeas corpus on February 23, 2009 and thereafter, on March 12, 2009, the court referred said petition to the public defender's office in accordance with General Statutes § 51-297.   On April 16, 2009, Dolbeare “sent the plaintiff a letter stating he was eligible for public defender services.  [Dolbeare] also stated there was a delay in appointing counsel and could not say when counsel would be appointed.  [Dolbeare] further stated the court would take no action on [Hanton's] case until an attorney was appointed.”   Thereafter, on June 9, 2009, Hanton wrote Dolbeare, requesting that counsel be appointed immediately.   Dolbeare never responded to Hanton's request and counsel was never appointed.   Hanton's writ was subsequently dismissed by the court, Nazzaro, J., on October 16, 2009.¹  On October 20, 2009, Hanton “notified [Dolbeare] about the dismissal.”   Hanton alleges that Dolbeare “deliberately and maliciously ignored [his] notification.”   Hanton was never appointed counsel and he subsequently lost his right to appeal.

Counts one, two and three of Hanton's complaint allege denial of Hanton's right to an attorney, denial of access to the courts, and denial of Hanton's right to appeal, respectively.   All such claims allegedly arise out of Dolbeare's aforementioned actions.   Hanton's prayer for relief avers that “[a]s a direct result of [Dolbeare's] actions [Hanton] has been damaged in the amount of $15,000 or more.”

On March 9, 2010, Dolbeare filed a motion to dismiss the present action on the grounds that the court lacks jurisdiction over the subject matter of Hanton's claims, the court lacks personal jurisdiction over her, process was insufficient and process was improperly served.   Dolbeare has filed a memorandum of law in support of her motion.   Hanton filed a memorandum in opposition on March 23, 2010.   There was no short calendar hearing on the matter.

DISCUSSION

“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, 941 A.2d 266 (2008);  R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (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, 490 A.2d 509 (1985), citing Practice Book § 10-31.

“The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “The burden rests with the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).  “[E]very presumption favoring jurisdiction should be indulged.”   (Internal quotation marks omitted.)  Fedus v. Planning & Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006).  “When a court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.)  Cox v. Aiken, supra, 278 Conn. 211.

Dolbeare argues that Hanton improperly served her.   In particular, Dolbeare argues that she is being sued in her individual capacity, therefore service upon an assistant attorney general pursuant to General Statutes § 52-64 was improper.   Alternatively, Dolbeare argues that she is being sued in her official capacity;  therefore, even if she was properly served, she is immune from suit pursuant to the principles of sovereign inmunity.   Dolbeare's motion also asserts that she is protected by statutory immunity under General Statutes § 4-165 and thus, insulated from suit.

Hanton counters that he is not suing Dolbeare in her official capacity.   In particular, Hanton argues that Dolbeare was acting in her individual capacity, outside the scope of her employment, when she sent Hanton the letter of April 16, 2009, and when she subsequently failed to reply to Hanton's communications of June 9, 2009 and October 20, 2009.   Hanton argues that although service on Dolbeare was improper, it was through no fault of his own and he requests the court allow him to correct service on Dolbeare.

A.

“[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.)  Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996).  “[B]efore determining whether and to what extent [a defendant is] shielded by the statutory immunity provided by § 4-165, it is appropriate to determine whether the claims against them are barred by the common-law doctrine of sovereign immunity.”  Shay v. Rossi, 253 Conn. 134, 162-63, 749 A.2d 1147 (2000), overruled in part on other grounds, Miller v. Egan, 265 Conn. 301, 317, 828 A.2d 549 (2003).

“The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty ․ Our Supreme Court has set forth criteria to determine whether an action is against the state or against a defendant in an individual capacity.   The four criteria for an action against the state 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.’  “ Hultman v. Blumenthal, 67 Conn.App. 613, 620-21, 787 A.2d 666 (2002), citing Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975).

To determine whether, under the present facts, Dolbeare qualifies as a state official under the first Spring criterion, the court must examine the essential characteristics of a “public office,” which are:  “(1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government ․ A key element of this test is that the ‘officer’ is carrying out a sovereign function.”  Spring v. Costantino, supra, 168 Conn. 568-69.

Dolbeare is a paralegal specialist employed by the habeas unit of the office of the chief public defender.   The office of the public defender assigns counsel to indigent defendants pursuant to constitutional and statutory authority.²  Dolbeare is an employee of such office, satisfying the requirement of fixed tenure.³  The office of the public defender, and Dolbeare by way of extension, is tasked with exercising a sovereign function, namely the assignment of counsel to indigent defendants.   Dolbeare, in providing notice to persons applying for public defender services, is essentially functioning as a conduit for the public defender's office in the execution of its statutory mandate.   Therefore, under the present facts, Dolbeare satisfies the first Spring criterion as she was acting pursuant to the sovereign function of ensuring that indigents are represented by competent counsel.

Moreover, the complaint does not allege that Dolbeare is being sued in her individual capacity.   The summons lists Dolbeare's address as “2275 Silas Deane Highway, Rocky Hill, CT 06067,” the address of the office of the chief public defender.   The marshal's return indicates that a copy of the writ, summons and complaint was left with an assistant attorney general, “duly authorized to accept service for [Dolbeare],” at the address of the attorney general's office in Hartford.   Furthermore, the complaint alleges causes of action arising out of Dolbeare's correspondence with Hanton regarding his request for appointment of counsel, and such claims are directly related to Dolbeare's duties as a representative of the office of the chief public defender.   Therefore, Dolbeare satisfies criteria two and three under Spring.

Finally, as any judgment against Dolbeare would place in issue the manner by which the state must correspond with individuals requesting appointment of counsel through the office of the public defender, as well as the overall process of appointing such counsel, the fourth Spring criterion is likewise satisfied.   See Hanton v. Gworek, Superior Court, judicial district of New Haven, Docket No. CV 095027787 (November 12, 2009, Corradino, J.).

As the above analysis indicates, Hanton's complaint may be construed as a claim against the state for money damages.  “[T]he State cannot be sued without its consent.”  Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981).   A party “who seeks to bring an action for monetary damages against the State must first obtain authorization from the claim commissioner.”  Miller v. Egan, supra, 265 Conn. 317.⁴  Therefore, Hanton was required to obtain authorization from the claim commissioner ⁵ in order to bring suit.   Dolbeare, in her motion to dismiss, argues that Hanton failed to obtain such permission, and Hanton has failed to establish that he has obtained the authorization necessary to bring the present action.   Accordingly, Hanton's action is barred by the doctrine of sovereign immunity.

B.

Nevertheless, even if the court were to assume that the present action is against Dolbeare as an individual and reach Hanton's argument, raised in his objection to the motion to dismiss, that Dolbeare acted outside the scope of her employment,⁶ the present action must still be dismissed.

Section § 4-165(a) provides:  “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.”  “[I]n order to overcome sovereign immunity [a plaintiff] must do more than allege that [a defendant's] conduct was in excess of [the defendant's] statutory authority;  they must also allege or otherwise establish facts that reasonably support those allegations.”  Shay v. Rossi, supra, 253 Conn. 174-75.  “In order to establish that [a defendant's] conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the [defendant], 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 ․” (Internal quotation marks omitted.)  Elliot v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).

Hanton's conclusory allegations that Dolbeare acted “deliberately and maliciously” are not supported by the facts alleged in his complaint.   Hanton seeks to impute malice upon Dolbeare through the mere use of the words “deliberately” and “maliciously” in his complaint.   Hanton's pleading contains no facts supporting such claims.   Such facts do not support an inference that Dolbeare acted with an intent to deprive Hanton of his right to counsel, his access to the courts or his right to appeal.

Examining the complaint in a light most favorable to Hanton, it merely alleges that Dolbeare failed to respond to Hanton in a timely fashion, counsel was not appointed in relation to the habeas petition and Hanton lost his right to appeal.   Hanton's conclusions in his opposition to the motion to dismiss, that Dolbeare “refused to have counsel appointed” and that she acted outside the scope of her employment, are not supported by any allegation in the complaint.   Even if the court were to accept Hanton's argument that he is bringing suit against Dolbeare as an individual, outside the protections of common law sovereign immunity, Dolbeare is nonetheless protected by the statutory immunity afforded to state employees by § 4-165.

C.

The court need not address Dolbeare's personal jurisdiction claim, related to improper service of process, as the preceding analysis provides that the court lacks subject matter jurisdiction over the present action.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is granted.

The Court,

Cosgrove, J.

FOOTNOTES

FN1. In particular, Judge Nazzaro dismissed the matter for lack of subject matter jurisdiction, as it was determined that Hanton was not in custody at the time he filed his petition for a writ of habeas corpus and the sentences underlying Hanton's petition had expired approximately nine years prior to Hanton's filing thereof..  FN1. In particular, Judge Nazzaro dismissed the matter for lack of subject matter jurisdiction, as it was determined that Hanton was not in custody at the time he filed his petition for a writ of habeas corpus and the sentences underlying Hanton's petition had expired approximately nine years prior to Hanton's filing thereof.

FN2. The constitution of Connecticut, article first, § 8, provides:  “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel ․” ․ “ General Statutes §§ 51-289 through 51-300 provide the statutory provisions concerning public defender services..  FN2. The constitution of Connecticut, article first, § 8, provides:  “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel ․” ․ “ General Statutes §§ 51-289 through 51-300 provide the statutory provisions concerning public defender services.

FN3. Specifically, a fixed tenure, for purposes of ascertaining the status of a public official, may be defined as a period of time “either fixed by law or enduring at the pleasure of the creating power ․” (Internal quotation marks omitted.)  Kelly v. Bridgeport, 111 Conn. 667, 670, 151 A. 268 (1930)..  FN3. Specifically, a fixed tenure, for purposes of ascertaining the status of a public official, may be defined as a period of time “either fixed by law or enduring at the pleasure of the creating power ․” (Internal quotation marks omitted.)  Kelly v. Bridgeport, 111 Conn. 667, 670, 151 A. 268 (1930).

FN4. “Sovereign immunity can also be avoided if the legislature, either expressly or by force of necessary implication, statutorily waives the state's sovereign immunity.”  Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 533, 976 A.2d 784 (2009).   There is no indication that a statutory waiver applies under the present facts..  FN4. “Sovereign immunity can also be avoided if the legislature, either expressly or by force of necessary implication, statutorily waives the state's sovereign immunity.”  Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 533, 976 A.2d 784 (2009).   There is no indication that a statutory waiver applies under the present facts.

FN5. General Statutes § 4-142 provides in relevant part:  “There shall be a Claims Commissioner who shall hear and determine all claims against the state ․”.  FN5. General Statutes § 4-142 provides in relevant part:  “There shall be a Claims Commissioner who shall hear and determine all claims against the state ․”

FN6. The court need not accept Hanton's conclusory argument that he is suing Dolbeare in her individual capacity.   See Miller v. Egan, 265 Conn. 301, 310, 828 A.2d 549 (2003) (conclusory statement that plaintiff sought relief against defendants as individuals impermissible to avoid dismissal of complaint)..  FN6. The court need not accept Hanton's conclusory argument that he is suing Dolbeare in her individual capacity.   See Miller v. Egan, 265 Conn. 301, 310, 828 A.2d 549 (2003) (conclusory statement that plaintiff sought relief against defendants as individuals impermissible to avoid dismissal of complaint).

Cosgrove, Emmet L., J.