Earl Grant v. Christopher Neary (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 103

The plaintiff is an inmate in the custody of the Commissioner of Corrections.   The plaintiff brings this action against defendant Christopher Neary who represented the plaintiff in a habeas corpus action.   Plaintiff has sued the defendant pursuant to 42 U.S.C. Section 1983 seeking compensatory and punitive damages plus injunctive relief.   Defendant has filed a Motion to Dismiss dated February 4, 2011 claiming the court lacks subject matter jurisdiction over this action due to the doctrine of sovereign immunity.   Oral argument was held on March 7, 2011.

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 66 (2008);  R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “[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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007);  Sullins v. Rodriguez, 281 Conn. 128, 131, 913 A.2d 415 (2007).

“[W]hen representing an indigent defendant in a state criminal proceeding, the public defender does not act under color of state law for the purposes of § 1983 because he ‘is not acting on behalf of the State’ he is the State's adversary.'  “ West v. Atkins, 487 U.S. 42, 50 (1988), quoting Polk County, 454 U.S. at 323 n.13.

[C]ourt-appointed attorneys performing a lawyer's traditional functions as counsel to defendant do not “under color of state law” and therefore are not subject to suit under 42 U.S.C. § 1983.   See Housand v. Heiman, 594 F.2d 923, 924–25 (2d Cir.1979) (per curiam);  accord Polk County v. Dodson, 454 U.S. 312, 325, 70 L.Ed.2d 509, 102 S.Ct. 445 (1981) (public defenders do not act under color of state law).

Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d Cir.1997).

Plaintiff has no standing to maintain this action against defendant Neary in his individual capacity as he cannot be sued under 42 U.S.C. Section 1983.

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

Brian T. Fischer, Judge

Fischer, Brian T., J.