James Hanton v. DelPaine et al. (2010)

MEMORANDUM OF DECISION MOTION TO DISMISS # 107

FACTS

On April 5, 2010, the defendants, “Mr. DelPaine,” ¹ Lora Castronova, John DeFeo and Robert Farr, filed a motion to dismiss this action.   On July 8, 2010, the plaintiff, James Hanton, filed a memorandum in opposition to the motion.

The plaintiff alleges the following facts in his amended complaint, which was filed on February 17, 2010.   On January 9, 2008, the plaintiff was issued a parole violation report for violation of parole.   Subsequently, the plaintiff had a parole revocation hearing, during which he was found guilty of the parole violation.   The hearing examiner recommended a period of confinement until December 2009, and the parole board approved and adopted the recommendation on June 26, 2008.   State Regulation Sec. 54-124a(j)(1)-9 paragraph M(3) requires that a supplemental hearing be provided if the parole board seeks to impose a period of incarceration longer than the recommendation by the hearing examiner.   In December 2009, DeFeo and Farr denied the plaintiff a new revocation hearing and kept the plaintiff confined longer than the period of incarceration recommended.   DeFeo and Farr denied the hearing because the plaintiff had previously commenced civil actions against them.

On September 21, 2009, the plaintiff notified DelPaine and Castronova that he was commencing a civil action for exposure to toxic chemicals and denial of medical treatment.   On October 8, 2009, DelPaine and Castronova deliberately and maliciously refused to send the plaintiff's privileged correspondences in an attempt to prevent the plaintiff from commencing his civil action.   Thereafter, the plaintiff requested that Castronova and DelPaine explain why they refused to send his correspondences.   Castronova and DelPaine refused to provide a reason in violation of Administrative Directive 10.7(j).  As a result of Castronova and DelPaine's refusal to forward the correspondences, the plaintiff lost his right to appeal court actions.

The plaintiff alleges that he was denied access to the courts, that DeFeo and Farr's actions violated the plaintiff's due process rights and that “the plaintiff's [first] amendment right to be free from retaliation was violated.”   The plaintiff seeks compensatory and punitive damages and claims that he has commenced this action against the defendants in their individual capacities.

LAW OF MOTION TO DISMISS

“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.)  R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008).   “The motion to dismiss shall be used to assert ․ lack of jurisdiction over the subject matter ․ Practice Book § 10-31(a).  “Claims involving the doctrines of common-law sovereign immunity ․ implicate the court's subject matter jurisdiction.”  (Internal quotation marks omitted.)  Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009).

“When a [trial] 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.)  State v. Marsh & McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).  “Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause ․” (Internal quotation marks omitted.)  Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 537, 893 A.2d 389 (2006).

DISCUSSION

The defendants move to dismiss this action on the grounds of sovereign immunity, statutory immunity pursuant to General Statutes § 4-165 and qualified immunity.   The defendants argue that they were acting within the scope of their employment as employees of the state of Connecticut at all times.   Further, the defendants argue that the plaintiff's claims regarding parole and due process violations are barred by the judgment of the habeas court in Hanton v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 08 4002247 (May 21, 2009, Nazzaro, J.), and Baker v. Commissioner of Correction, 281 Conn. 241, 914 A.2d 1034 (2007).   Finally, the defendants argue that the plaintiff's allegations with respect to denial of access to the court are false in light of the numerous actions filed by the plaintiff within the first three months of this year.

In response, the plaintiff argues that the defendants' motion to dismiss does not sufficiently present a challenge to the court's jurisdiction.   Additionally, the plaintiff asserts that the court has jurisdiction over his parole claims because the parole board's decision was not discretionary in nature and the plaintiff was entitled to notice and a hearing.   Further, the plaintiff argues that his complaint clearly states that the defendants are being sued in their individual capacities.   Finally, the plaintiff argues that the defendants were not acting within the scope of their employment.

I

The court begins its analysis with the issue of sovereign immunity.  “It is well settled that the defense of sovereign immunity can be raised for claims brought directly against the state or against state employees acting in their official capacities ․ Because an action against state employees in their official capacities is, in effect, an action against the state ․ the only immunity that can apply is the immunity claimed by the state itself-sovereign immunity.”  (Citations omitted.)  Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006).   As a threshold matter, the plaintiff argues that he brings this suit against the defendants in their individual capacities and, thus, the suit cannot be barred by sovereign immunity.   The plaintiff's argument centers on the fact that he claims in his amended complaint that the action “is being commenced against the defendants in their individual capacit [ies].”

“[The Connecticut Supreme Court has] identified the following criteria for determining whether an action against an individual is, in effect, against the state and barred by the doctrine of sovereign immunity:  (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.”   (Internal quotation marks omitted.)  Gordon v. H.N.S. Management Co., 272 Conn. 81, 93-94, 861 A.2d 1160 (2004).  “[T]he identities of the parties are determined by their description in the summons.”  Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002).   Additionally, the court may look to the complaint and the plaintiff's arguments to determine whether the claims are against the defendants in their individual or official capacities.  Miller v. Egan, 265 Conn. 301, 308-09, 828 A.2d 549 (2003).  “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.”  Id., 307.

In the present case, although the plaintiff claims that he is bringing the suit against the defendants in their individual capacities, the plaintiff's allegations are limited to actions that the defendants undertook within the scope of their employment with the state of Connecticut.   The plaintiff alleges that DeFeo and Farr denied the plaintiff a new revocation hearing, which can only have occurred due to DeFeo and Farr's roles on the Board of Pardons and Paroles.   The plaintiff alleges that DelPaine and Castronova refused to send the plaintiff's privileged correspondence, which can only have occurred due to DelPaine and Castronova's roles as employees with the department of corrections at Gates Correctional Institution.   The plaintiff alleges that the defendants acted in violation of state regulations and administrative directives, which govern the conduct of state employees and officials.   Additionally, the addresses listed in the summons for the defendants are the Gates Correctional Institution and the Board of Pardons and Paroles.   Regardless of the plaintiff's claim that this is a suit against the defendants in their individual capacities, the court must conclude that it is, in fact, a suit against state employees acting in their official capacities.

II

“[I]n order to overcome sovereign immunity, [a plaintiff] 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 on other grounds by Miller v. Egan, supra, 265 Conn. 325.  “It is difficult to describe with any degree of specificity where the line should be drawn between an excessive use of authority and an appropriate use of authority ․ The difference ․ is somewhere between two poles ․ The first pole involves the same standard as is used in the determination of an abrogation of judicial immunity, where a judge must be acting so far outside the normal scope of judicial functions that the judge is no longer acting as a judge ․ The second pole involves a process of statutory interpretation examining whether a state official acted beyond the authority given to the official, that is, beyond the scope of the official's authority.”  (Citations omitted;  internal quotation marks omitted.)  Hultman v. Blumenthal, supra, 67 Conn.App. 621-22.

With respect to DeFeo and Farr, General Statutes § 54-124a(f) provides, in relevant part:  “The Board of Pardons and Paroles shall have independent decision-making authority to ․ grant or deny parole ․ establish conditions of parole or special parole supervision ․ rescind or revoke parole or special parole ․ grant commutations of punishment or releases, conditioned or absolute, in the case of any person convicted of any offense against the state and commutations from the penalty of death ․” “Connecticut has conferred ‘unfettered discretion’ on its Board of Pardons, but-paradoxically-then proceeded to fetter the Board with a halter of constitutional ‘entitlement.’   The statute imposes no limit on what procedure is to be followed, what evidence may be considered, or what criteria are to be applied by the Board.”   Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 466, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981).

The plaintiff alleges that DeFeo and Farr denied him a new revocation hearing because the plaintiff had previously commenced civil actions against them.   The act of granting or denying a revocation hearing is clearly within the scope of DeFeo and Farr's authority, particularly considering the broad discretion of the Board of Pardons and Paroles.   The plaintiff alleges in his amended complaint that the denial was because he had previously initiated actions against DeFeo and Farr, but that allegation is unsupported by any other facts or allegations.   In fact, the plaintiff does not even mention this allegation in his opposition to the motion to dismiss.

With respect to the plaintiff's allegations regarding DelPaine and Castronova, “Section 18-81-1 of the Regulations of Connecticut State Agencies, titled ‘Commissioner of correction and deputies,’ provides in relevant part:  ‘The Commissioner is responsible for the administration, coordination and control of the operations of the Department of Correction and for the overall supervision and direction of all institutions, facilities and activities of the Department ․’ “ Pierce v. Lantz, 113 Conn.App. 98, 103, 965 A.2d 576, cert. denied, 293 Conn. 915, 979 A.2d 490 (2009).  Section 18-81-31 of the Regulations of Connecticut State Agencies, titled, “Outgoing general correspondence,” provides, in relevant part:  “All outgoing general correspondence shall be subject to being read at the direction of the Unit Administrator, by person(s) designated in writing by such Administrator, for either a specific inmate(s) or on a random basis if the Commissioner or Unit Administrator has reason to believe that such reading is generally necessary to further the substantial interests of security, order or rehabilitation.”   Regs., Conn. State Agencies § 18-81-31.  Section 18-81-31 further provides that outgoing correspondence may be “restricted, confiscated, returned to the inmate, retained for further investigation, referred for disciplinary proceedings or forwarded to law enforcement officials” if a review discloses correspondence or materials which concern certain subjects.  Regs., Conn. State Agencies § 18-81-31.

In the present case, the plaintiff alleges that DelPaine and Castronova refused to send the plaintiff's correspondences in violation of an administrative directive.   Pursuant to state regulations, however, the monitoring and restriction of correspondence is within the scope of the authority of employees of the department of correction.   The plaintiff does not support hisallegations with any facts that would allow the court to conclude that DelPaine and Castronova were acting in excess of their authority.

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of 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.)  May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009).   The plaintiff has not alleged or otherwise established facts that show that the defendants' conduct was in excess of their statutory authority.   Thus, this case is barred by the doctrine of sovereign immunity and the court lacks subject matter jurisdiction over the claims.   The court need not reach the defendants' other arguments.

CONCLUSION

Based on the foregoing, the defendants' motion to dismiss is granted.

Cosgrove, J.

FOOTNOTES

FN1. “Mr. DelPaine” is named as such in the plaintiff's summons..  FN1. “Mr. DelPaine” is named as such in the plaintiff's summons.

Cosgrove, Emmet L., J.