James Hanton v. Terri Williams et al. (2011)

MEMORANDUM OF DECISION IN RE MOTION TO DISMISS (# 103)

FACTS

On August 4, 2009, the plaintiff, James Hanton, filed a two-count complaint against the defendants, Terri Williams and George Byrd, alleging a denial of his right to due process in count one and retaliation for exercising his right to free speech in count two.¹  In the complaint, the plaintiff alleges the following facts which are common to both counts.   An incident occurred on August 17, 2005, that led to the plaintiff's parole revocation.   On February 26, 2007, Byrd, the plaintiff's parole officer testified that no investigation into the incident occurred.²  On May 2, 2007, the defendants issued a parole violation report for the plaintiff's alleged parole violations.   On January 29, 2009, Byrd answered interrogatories for another legal matter in which he indicated that he interviewed the plaintiff's parole sponsor on August 17, 2005, regarding the incident, and that he conducted an investigation into the incident until the date of the issuance of the parole violation report on May 2, 2007.   The plaintiff alleges that Byrd deliberately and maliciously withheld the occurrence of both the interview and the investigation from the plaintiff to prevent him from using it at the parole revocation hearing on May 10, 2007.   The plaintiff further alleges that Williams, the parole officer supervisor of Byrd, knew or should have known of Byrd's actions.

The defendants filed this motion to dismiss and a memorandum of law in support thereof on October 5, 2009.   The plaintiff filed his objection to the motion to dismiss on December 15, 2009.   The court heard oral argument on this matter on February 7, 2011.

The court takes judicial notice of the existence of the following actions:  Hanton v. Byrd, Superior Court, judicial district of New Haven, Docket No. CV 06 4017546 (Byrd I );  Hanton v. Byrd, Superior Court, judicial district of New Haven, Docket No. CV 06 4020174 (Byrd II );  and Hanton v. Williams, Superior Court, judicial district of New Haven, Docket No. CV 07 5015039.   See State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476 (1964).

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 defendants argue that collateral estoppel, res judicata and the prior pending action doctrine bar the present action because it is repetitive and duplicative of three prior actions in the Superior Court.   The defendants then argue that this court should enjoin this suit because it has the inherent authority to enjoin unnecessary and vexatious litigation, such as the present action.   Moreover, the defendants argue that the plaintiff's claims are barred under the doctrines of sovereign immunity, statutory immunity, absolute testimonial immunity and qualified immunity.³  The defendants also argue that the plaintiff lacks standing to bring this suit because he cannot demonstrate that he suffered an injury that was caused by the defendants.   Finally, the defendants argue that the court lacks personal jurisdiction over Williams on the grounds of lack of service, inadequate process and inadequate service of process

The plaintiff counters that the present action is not duplicative and that res judicata does not apply because the present claims were not raised in the three prior actions.   The plaintiff then counters that the defendants are not entitled to sovereign immunity because the defendants' actions were not within the scope of their employment.   Furthermore, the plaintiff argues that the defendants are not entitled to statutory immunity or qualified immunity because the defendants lied to the court about the investigation.   Finally, the plaintiff argues that the defendants are not entitled to absolute immunity because he never raised any claims in this action concerning the defendants' testimony at the parole revocation hearing.   The plaintiff does not provide a response to several of the defendants' arguments for dismissal.

I

IMPERMISSIBLE GROUNDSA

In their motion to dismiss and accompanying memorandum of law, the defendants argue that this case is duplicative of three prior actions based on the same underlying facts and, thus, it should be dismissed on the grounds of res judicata and collateral estoppel.   The plaintiff argues that these claims were never raised in the prior actions and, thus, res judicata is inapplicable.

“Res judicata is not included among the permissible grounds on which to base a motion to dismiss ․ [because it] does not itself raise a jurisdictional question.  Zizka v. Water Pollution Control Authority, [supra, 195 Conn. 687].   Nor does collateral estoppel implicate a court's subject matter jurisdiction ․ [mandating] dismissal of a case.  State v. T.D., 286 Conn. 353, 360 n.6, 944 A.2d 288 (2008).   Collateral estoppel, like res judicata, must be specifically pleaded by a defendant as an affirmative defense.   Carnese v. Middleton, 27 Conn.App. 530, 537, 608 A.2d 700 (1992);  see also Practice Book § 10–50 ․ [A] motion to dismiss is the improper procedural vehicle in which to raise res judicata and/or collateral estoppel ․” (Citation omitted;  internal quotation marks omitted.)   169 Olive Street, LLC v. D'Urso, Superior Court, judicial district of New Haven, Docket No. CV 09 5029796 (July 23, 2010, Wilson, J.) [50 Conn. L. Rptr. 394].   Since res judicata and collateral estoppel are not permissible grounds for a motion to dismiss, the court denies the defendants' motion to dismiss based on these grounds.

B

The defendants argue in their motion to dismiss and their memorandum of law that the court has the inherent authority to enjoin vexatious litigation that is meritless, intended to harass an opponent and filed out of malice.   The plaintiff provides no response to this argument.

“It is well settled that equity may enjoin vexatious litigation.”   Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 194, 91 A.2d 778 (1952).  “[Establishing] a cause of action for vexatious suit requires proof that a civil action has been prosecuted not only without probable cause but also with malice ․ It must also appear that the litigation claimed to be vexatious terminated in some way favorable to the defendant therein.”   (Citation omitted;  internal quotation marks omitted.)  QSP, Inc. v. AETNA Casualty & Surety Co., 256 Conn. 343, 361, 773 A.2d 906 (2001).  “This power of equity exists independently of its power to prevent a multiplicity of actions.”  Bridgeport Hydraulic, Co. v. Pearson, supra, 139 Conn. 194.   Vexatious litigation serves as a basis for an injunction, raised through a motion for sanctions;  McCarthy v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 95 2044 (March 18, 1997, Kaplan, J.);   as well as a statutory and a common-law cause of action sounding in tort.  Bernhard–Thomas Buildings Systems, LLC v. Dunican, 100 Conn.App. 63, 69, 918 A.2d 889 (2007), aff'd, 286 Conn. 548, 944 A.2d 329 (2008).

In the present case, the defendants seek to have the court sanction the plaintiff by enjoining him from filing the present or any future actions against the defendants.   The defendants, however, have raised this sanctions argument in the form of a motion to dismiss rather than through a separate motion or a counterclaim.   Motions to dismiss have a limited number of bases, which do not include imposing sanctions for vexatious litigation.   Therefore, a motion to dismiss is not the appropriate vehicle through which to raise a vexatious litigation cause of action.   The court therefore denies the defendants' motion to dismiss based on this ground.

II

REPETITIVE ACTIONS

The defendants argue in their motion to dismiss and memorandum of law that the present action is entirely repetitive and duplicative of three prior actions in the Superior Court, of which this court has taken judicial notice, and is barred by the prior pending action doctrine.   The plaintiff argues that the present action is not duplicative of the three prior actions.

“[T]he prior pending action doctrine properly is raised via a motion to dismiss.”  Pecan v. Madigan, 97 Conn.App. 617, 622, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007).  “It has long been the rule that when two separate lawsuits are ‘virtually alike’ the second is amenable to dismissal by the court.”  Solomon v. Aberman, 196 Conn. 359, 382, 493 A.2d 193 (1985).   The trial court, however, “does not have the right to raise, sua sponte, the prior pending action rule when the moving party has not done so.”  Conti v. Murphy, 23 Conn.App. 174, 178, 579 A.2d 576, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990).  “The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for [dismissal].   It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious.”  Solomon v. Aberman, supra, 196 Conn. 383.   The court must look to the similarity in the plaintiff's causes of action, the similarity in the factual backgrounds, and the prayers for relief to determine whether the actions are of the same character, between the same parties and seek the same relief.   See Halpern v. Board of Education, 196 Conn. 647, 653, 495 A.2d 264 (1985).  “[T]he fact that different relief is sought does not prevent [dismissal] of a second action adjudicating the same underlying rights.”  (Internal quotation marks omitted.)  Id., 655.

In Byrd I, the plaintiff brings three claims sounding in due process violations.   In Byrd II, the plaintiff again, brings three claims sounding in due process violations.   In Hanton v. Williams, Docket No. CV 07 5015039, the plaintiff brings three claims sounding in breach of contract, false arrest and defamation, respectively.   In the present action, the plaintiff brings claims sounding in a due process violation and retaliation for the exercise of his freedom of speech guaranteed under the United States Constitution.   The present action shares one cause of action with the first and second of the three prior actions.   The present action, however, has a cause of action that is not raised in any of the three prior actions.   Therefore, the causes of action raised in the present action are not virtually identical to the causes of action raised in either of the three prior actions.

The three prior actions and the present action stem from the same occurrence in which the defendants revoked the plaintiff's parole on August 17, 2005.   In the present action, the plaintiff alleges that Byrd testified that no investigation occurred into the plaintiff's parole violation, but that Byrd revealed in interrogatories that he investigated the plaintiff's parole violation.   The plaintiff then alleges that during the course of this investigation, Byrd interviewed the plaintiff's parole sponsor.   The plaintiff further alleges that the defendants deliberately and maliciously withheld the occurrence of the investigation from the plaintiff.   These facts, however, are not alleged in any of the three prior actions.   Accordingly, the presently alleged facts constitute a factual background distinct from each of the three prior actions filed by the plaintiff against the defendants.⁴  Therefore, the factual background of the present action is not virtually identical to any of the three prior actions.

Since the claims brought in the present action are not virtually identical to the claims in any of the three prior actions, and since the factual background of the present action is not virtually identical to the factual backgrounds of either of the three prior actions, they therefore, do not constitute prior pending actions with respect to the present action.   Accordingly, the court denies the defendants' motion to dismiss based on this ground.

III

IMMUNITY

The doctrines of sovereign immunity, statutory immunity, absolute testimonial immunity ⁵ and qualified immunity implicate the court's subject matter jurisdiction.  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007) (sovereign immunity);  Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002) (statutory immunity);  Brooks v. Sweeney, 299 Conn. 196, 206, 9 A.3d 347 (2010) (qualified immunity).   Therefore, these grounds are properly raised in a motion to dismiss.   Beecher v. Mohegan Tribe of Indians of Connecticut, supra, 282 Conn. 134 (sovereign immunity);  Martin v. Brady, supra, 261 Conn. 376 (statutory immunity) Rioux v. Barry, Superior Court, judicial district of New Haven, Docket No. CV 05 4007375 (January 3, 2006, Licari, J.) (40 Conn. L. Rptr. 537, 539) (absolute testimonial immunity), rev'd on other grounds, 283 Conn. 338, 927 A.2d 304 (2007);  see Wagner v. State, Superior Court, judicial district of Hartford, Docket No. CV 09 5026341 (November 17, 2010, Pellegrino, J.T.R.) (qualified immunity).   Federal sovereign immunity jurisprudence applies to claims raised under federal law and state sovereign immunity jurisprudence applies to claims raised under state law.   See generally, Sullins v. Rodriguez, 281 Conn. 128, 134, 913 A.2d 415 (2007).   Because the plaintiff raises both state and federal claims;  see footnote 1;  federal sovereign immunity, which includes qualified immunity, and state sovereign immunity, which includes statutory immunity, will be addressed.  “The 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]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)   Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

A

Sovereign Immunity

The defendants argue in their memorandum of law that the plaintiff brought suit against the defendants in their official capacities as state officials and, therefore, the suit is barred by the doctrine of sovereign immunity.   Byrd argues that the plaintiff is suing him in his official capacity as a parole officer for testimony given in the course of carrying out his duties as a parole officer.   Williams argues that the plaintiff is suing her in her official capacity as parole officer supervisor for not preventing Byrd from allegedly falsely testifying or for not making the plaintiff aware of the information regarding the parole revocation investigation.   The plaintiff counters that the defendants acted beyond the scope of their authority as state officials and, therefore, the doctrine of sovereign immunity does not apply.

“The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty.”  Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002).  “[The Connecticut] Supreme Court has recognized that because a state can only act through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.”  (Internal quotation marks omitted.)  Kenney v. Weaving, 123 Conn.App. 211, 215, 1 A.3d 1083 (2010).  “The law is firmly established that the state cannot be sued except with its own consent ․ Whether a particular action is one against the state is not determined solely by referring to the parties of record.”  (Citations omitted.)  Somers v. Hill, 143 Conn. 476, 479, 123 A.2d 468 (1956).

“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.”  Miller v. Egan, 265 Conn. 301, 307, 828 A.2d 549 (2003).  “To determine whether an action is against the state or against a defendant in his individual capacity, we look to the four criteria established by our Supreme Court ․ If all four criteria are satisfied, the action is deemed to be against the state ․ The criteria 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.”  (Citations omitted;  internal quotation marks omitted.)  Kenney v. Weaving, supra, 123 Conn.App. 216.

The first criterion is satisfied because the plaintiff has brought suit against a parole officer and a supervising parole officer, two state officials.   See Hanton v. Walker, Superior Court, judicial district of New Haven, Docket No. CV 09 5029721 (March 29, 2010, Keegan, J.).   The second criterion is satisfied in that the plaintiff brings suit against the defendants for their conduct while carrying out their official duties as state officials.

“Analysis under [the third criterion] requires scrutiny of the complaint because it has been established that the right of a plaintiff to recover is limited to the allegations of [the] complaint ․” (Citation omitted;  internal quotation marks omitted.)   Kemper Auto & Home Ins. Co. v. State, Superior Court, judicial district of New London, Docket No. CV 569339 (January 24, 2005, Hurley, J.T.R.).   The court may also look to the summons for the manner in which the plaintiff references the defendants and the addresses provided for the defendants.  Miller v. Egan, 265 Conn. 301, 308–09, 828 A.2d 549 (2003);  see Hanton v. Dolbeare, Superior Court, judicial district of New London, Docket No. CV 10 5013954 (June 17, 2010, Cosgrove, J.);   see also Duquette v. Corradi, Superior Court, Judicial district of New London, Docket No. CV 05 4002769 (June 9, 2006, Jones, J.).   In the present case, the summons does not direct service to the home address of either defendant, rather the summons directs service to both defendants' work addresses.   In the complaint, the plaintiff does not state whether he is suing the defendants in their official or individual capacities.   The allegations, however, seek to hold the defendants liable for acts that they performed as a part of their official duties.   Therefore, the state is the real party against whom relief is sought and the third criterion is satisfied for both defendants.

In analyzing the state's possible liability in the fourth criterion, courts look to General Statutes § 5–141d(a) to determine whether the state would possibly be required to indemnify the state official in the event of a judgment being rendered against the official.⁶  See Duquette v. Corradi, supra, Superior Court, Docket No. CV 05 4002769;  see also Kemper Auto & Home Ins. Co. v. State, supra, Superior Court, Docket No. CV 569339.

In the present case, the plaintiff in his complaint alleges that the defendants engaged in deliberate and malicious conduct that caused his injury.   Viewing these allegations in the light most favorable to the plaintiff, and admitting all facts which are well pleaded, Peruta v. Commissioner of Public Safety, 128 Conn.App. 777, 783 (2011), the defendants engaged in willful and malicious conduct that injured the plaintiff.   The state, however, is not required to indemnify state officials for willful and malicious conduct under § 5–141d(a).   Therefore, the relief sought by the plaintiff would not subject the state to liability.   Accordingly, the fourth criterion is not satisfied as to either defendant.

Although three criteria are satisfied, the failure to satisfy the fourth criterion establishes that the plaintiff brings this suit against the defendants in their individual capacities, not in their official capacities.   Therefore, the doctrine of sovereign immunity does not apply to the either defendant.   Accordingly, the court denies the defendants' motion to dismiss as to both defendants on this ground.

B

Statutory Immunity

The defendants argue in the alternative, in their memorandum of law, that the plaintiff is barred from bringing this suit against the defendants under the doctrine of statutory immunity pursuant to General Statutes § 4–165.   The defendants argue that they were state employees acting within their official capacities, Byrd as a parole officer and Williams as a parole officer supervisor, at the time that they allegedly violated the plaintiff's rights.   The plaintiff argues that the defendants are not entitled to statutory immunity because they deliberately and maliciously acted beyond the scope of their authority as state officials when Byrd falsely testified and Williams did nothing to prevent Byrd's false testimony or to ensure that the plaintiff was given the information regarding the parole revocation investigation.

“[S]tatutory immunity provided by § 4–165 applies where sovereign immunity does not apply.”  Shay v. Rossi, 253 Conn. 134, 164, 749 A.2d 1147 (2000), overruled on other grounds, Miller v. Egan, 265 Conn. 301, 327, 828 A.2d 549 (2003).  “By its own terms, § 4–165 applies only to state officers and employees sued in their personal capacities ․” Hanna v. Capitol Region Mental Health Center, 74 Conn.App. 264, 268, 812 A.2d 95 (2002).  General Statutes § 4–165(a) provides that:  “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.”

“The question before [the court], therefore, is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive a motion to dismiss on the ground of statutory immunity.”  Martin v. Brady, supra, 261 Conn. 376.  “In determining whether the defendants are entitled to statutory immunity, we examine the pleadings to decide if the plaintiff has alleged sufficient facts ․ to support a conclusion that the [defendants were] acting outside the scope of [their] employment or willfully or maliciously.”  (Internal quotation marks omitted.)   Carroll v. Killingly, Superior Court, judicial district of Windham, Docket No. CV 063387 (October 6, 2000, Foley, J.) (28 Conn. L. Rptr. 409).  “In order to establish that the defendants' conduct was wanton, reckless, willful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a stage of consciousness with reference to the consequences of one's acts.”  Id.

In the present case, the plaintiff alleges that the defendants deliberately and maliciously withheld information regarding his parole revocation during the discharge of their duties.   The plaintiff alleges that Byrd, in a deliberate and malicious manner, testified that there was no investigation into the circumstances surrounding the plaintiff's parole revocation even though he knew it to be false because he conducted the investigation.   The plaintiff further alleges that the defendants acted in such a way as to prevent him from using the information from the investigation at his parole revocation hearing held on May 10, 2007.   Thus, the plaintiff alleges sufficient facts to support the conclusion that Byrd acted willfully and maliciously in withholding information regarding the investigation.   Therefore, the doctrine of statutory immunity does not apply to Byrd. Accordingly, the court therefore denies the motion to dismiss as to Byrd.

The plaintiff alleges that Williams “knew or should have known” that Byrd withheld information characterizes Williams' knowledge as deliberate and malicious.   The plaintiff's allegations lead to the reasonable inference that Williams, deliberately and maliciously, chose not to prevent Byrd's false testimony and chose not to ensure that the plaintiff was given the information regarding the parole revocation investigation.   These inferences support the plaintiff's allegation that Williams engaged in conduct designed to prevent the plaintiff from using the information from the investigation at his parole revocation hearing held on May 10, 2007.   Thus, the plaintiff alleges sufficient facts to support the conclusion that Williams, deliberately and maliciously, engaged in conduct with the purpose of withholding information regarding the parole revocation investigation.   Therefore, the doctrine of statutory immunity does not apply to Williams.   Accordingly, the court denies the motion to dismiss as to Williams.

C

Absolute Testimonial Immunity

The defendants argue that Byrd is entitled to absolute immunity because he testified pursuant to his official job duties as a parole officer and within the scope of his official capacity.⁷  The plaintiff argues that Byrd is not entitled to absolute testimonial immunity because Byrd falsely testified in a court proceeding that he did not conduct an investigation into the incident that led to the plaintiff being remanded to custody and that he did not conduct an interview with the plaintiff's parole sponsor.⁸

“It has long been established that there is an absolute privilege for statements made in judicial proceedings ․ There is a long-standing common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy.”  (Citations omitted;  internal quotation marks omitted.)  Petyan v. Ellis, 200 Conn. 243, 245–46, 510 A.2d 1337 (1986).  “The judicial proceeding to which the immunity attaches has not been defined very exactly.   It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not.”  (Internal quotation marks omitted.)  Id., 246.  “This privilege extends to every step of the proceeding until final disposition.”  (Internal quotation marks omitted.)  Id.

In the present case, the subject in controversy consisted of the circumstances surrounding the plaintiff violating the terms of his parole, as reported by Byrd. The plaintiff alleges that Byrd testified in a court proceeding regarding acts by the plaintiff which constituted a violation of his parole.   The plaintiff does not allege that Byrd testified as to an extraneous matter.   Thus, the plaintiff's allegations establish that all of the statements in Byrd's testimony were germane to the subject of the parole revocation.   Despite the fact that the plaintiff alleges that the false testimony was given, deliberately and maliciously, Byrd's testimony is privileged.   For the foregoing reasons, the defendants' motion to dismiss as to Byrd based on this ground is granted.

D

Qualified Immunity

The defendants argue that they are immune from suit under the doctrine of qualified immunity because they are government officials and are being sued for activities carried out within the scope of their official government duties.   Byrd is being sued for testimony that he gave in his role as parole officer.   Williams is being sued for her supervision of Byrd within his official duties as parole officer supervisor.   The plaintiff counters that he was denied the right to confront and cross-examine an adverse witness and that he was denied the right to use certain information in his defense when Byrd falsely testified.   The plaintiff further argues that the defendants “knew they were violating clearly established rights” when Byrd falsely testified and when Williams did nothing to prevent Byrd's false testimony or to ensure that the plaintiff knew about the information regarding the parole revocation investigation.⁹  The federal rights that the plaintiff alleges were violated, in the complaint, are his right to due process and his right to be free from retaliation for exercising his right to free speech.

“[W]hen sovereign immunity is claimed as a defense to a cause of action pursuant to § 1983, federal sovereign immunity jurisprudence preempts analysis under state law.”  Sullins v. Rodriguez, supra, 281 Conn. 133.¹⁰  Even assuming that the plaintiff has established the requisite elements for a § 1983 claim, the plaintiff may be precluded from recovery based on the qualified immunity of the defendant.  Krozsner v. New Haven, 212 Conn. 415, 422, 562 A.2d 1080 (1989), cert. denied, Krozsner v. Connecticut, 493 U.S. 1036, 110 S.Ct. 757, 107 L.Ed.2d 774 (1990).  “Under federal law, the doctrine of qualified immunity shields officials from civil damages liability for their discretionary actions as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated ․ Qualified immunity is an immunity from suit rather than a mere defense to liability ․” (Citations omitted;  internal quotation marks omitted.)   Brooks v. Sweeney, supra, 299 Conn. 216.  “[Qualified immunity] is only available to those defendants sued in their personal capacities.   See Moore v. City of Wynnewood, 57 F.3d 924, 929 n.4 (10th Cir.1995) (“the defense of qualified immunity only applies to [defendants] sued in [their] individual capacit[ies]”).   See also Mitchell v. Forsyth, 472 U.S. 511, 556 n.10, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (concurring/dissenting opinion of Justice Brennan) (“Of course, an official sued in his official capacity may not take advantage of a qualified immunity defense”) (citing Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)).”  Walker v. Board of Trustees, 76 F.Sup.2d 1105, 1109 (Colo.1999).

The United States Supreme Court “mandated a two-step sequence for resolving government officials' qualified immunity claims.   First, a court must decide whether the facts that a plaintiff has alleged ․ or shown ․ make out a violation of a constitutional right ․ Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly established’ at the time of the defendant's alleged misconduct.”  (Citations omitted.)  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 816, 172 L.Ed.2d 565 (2009).   In reconsidering the Saucier v. Katz, 533 U.S. 194, two-step sequence for resolving governmental immunity claims, the Court further concluded that “while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory.   The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”  Id., 818.   Therefore, qualified immunity analysis no longer requires a court to address both steps if the answer to step one is obvious.   In interpreting the qualified immunity analytical steps, the Connecticut Supreme Court stated that:  “A [governmental] defendant will be entitled to qualified immunity if either (1) his actions did not violate clearly established law or (2) it was objectively reasonable for him to believe that his actions did not violate clearly established law.”  Brooks v. Sweeney, supra, 299 Conn. 217–18.

1

Count One

In count one, the plaintiff claims that the defendants violated his right to due process of law by withholding information so as to prevent him from cross-examining an adverse witness and by preventing him from presenting certain evidence on his own behalf at his revocation hearing.   The plaintiff further alleges that the defendants acted deliberately and maliciously.

The United States Supreme Court has held that, in the context of parole revocation hearings, parolees are entitled to the disclosure of the evidence against them and the right to confront and cross-examine witnesses.   Morrissey v. Brewer, 408 U.S. 471, 488–89, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).   Viewing the allegations in the light most favorable to the plaintiff, the plaintiff meets his burden of alleging facts sufficient to show that Byrd committed a constitutional violation.   Thus, the first step to qualified immunity analysis is satisfied as to Byrd. The second step of qualified immunity analysis requires the court to determine whether “it was objectively reasonable for [Byrd] to believe that his actions did not violate clearly established law.”  Brooks v. Sweeney, supra, 299 Conn. 218.   The actions at issue are Byrd falsely testifying and withholding information to prevent the plaintiff from using the information for his own defense.   Viewing the allegations in the light most favorable to the plaintiff, the court can reasonably infer from these allegations that Byrd knew the falsity of the statements he made during his testimony, and that Byrd made these false statements to prevent the plaintiff from using the information in his parole revocation hearing.   Based upon such inferences, under no circumstances would it be objectively reasonable for Byrd to believe that either false testimony or a deliberate withholding of information would not violate clearly established law.   Thus, the second analytical step is not satisfied for Byrd. Therefore, the court denies the defendants' motion to dismiss as to Byrd under count one because Byrd is not entitled to qualified immunity.

As to Williams, the plaintiff's allegations lead to the reasonable inference that Williams was in a position to prevent Byrd from falsely testifying and failed to do so.   The plaintiff's allegations also lead to the inference that Williams could have provided the plaintiff with the information from the parole revocation hearing that was withheld from him, but Williams failed to provide the plaintiff with such information.   The plaintiff alleges that Williams acted deliberately and maliciously to withhold this information.   Based on a parolee's right to the disclosure of information against him and viewing the allegations in the light most favorable to the plaintiff, the plaintiff meets his burden of alleging facts sufficient to show that Williams committed a violation of the plaintiff's right to due process.   Thus, the first step to qualified immunity analysis is satisfied as to Williams.

The second step of qualified immunity analysis requires the court to determine whether it was objectively reasonable for Williams to believe that his actions would not violate clearly established law.  Id. Assuming that Williams was privy to the information from the parole revocation investigation and that Williams knew about Byrd's false testimony, it is not objectively reasonable for Williams to believe that not preventing Byrd from falsely testifying did not violate clearly established law.   Based upon the same assumptions, it is also not objectively reasonable for Williams to believe that not providing the plaintiff with the information from the parole revocation investigation to which the plaintiff was entitled did not violate clearly established law.   Thus, the second analytical step is not satisfied as to Williams.   Therefore, the court denies the defendants' motion to dismiss as to Williams under count one because Williams is not entitled to qualified immunity.

2

Count Two

In count two, the plaintiff claims that the defendants violated his right to be free from retaliation for exercising his right to free speech.   The plaintiff appears to argue that Byrd's false testimony, Williams' failure to prevent Byrd's false testimony, and Williams' failure to ensure that the information regarding the parole revocation investigation was made known to the plaintiff, were acts of retaliation against the plaintiff for exercising his right to free speech.   The complaint, however, is completely devoid of factual allegations demonstrating instances of the plaintiff exercising his right to free speech upon which to base his retaliation claim.   The plaintiff does not allege that he made any constitutionally protected speech.   Since the plaintiff fails to provide the constitutionally protected speech that caused the retaliation, the plaintiff fails to demonstrate that the either defendant violated that constitutional right.   Thus, the first step in the qualified immunity analysis is not satisfied as to both defendants because the plaintiff does not allege facts to show that the defendants violated his constitutionally protected right to be free from retaliation for making constitutionally protected speech.   Therefore, the court grants the defendants' motion to dismiss as to both defendants on this ground under count two because the doctrine of qualified immunity applies to both defendants.

IV

STANDING

In their motion to dismiss, the defendants argue that the plaintiff does not have standing to bring a claim against either defendant because the plaintiff, as a matter of law, cannot show that he suffered an injury that was caused by either defendant.   Byrd argues that the plaintiff's argument that he was denied a parole revocation investigation is false because the plaintiff signed the parole violation report that set forth his charges and the plaintiff acknowledged at his parole revocation hearing that the parole revocation investigation occurred.   Williams argues that the plaintiff fails to argue that Williams engaged in any conduct that had a direct causal relation to the plaintiff's alleged injury and that the plaintiff failed to allege that he suffered any injury.   The plaintiff does not respond to the defendants' arguments.

“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.  Practice Book § 10–31(a).”  (Internal quotation marks omitted.  May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009).  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, supra, 260 Conn. 443.   “Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved ․ The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination:  [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest ․ Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․” Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006).   Standing requires the plaintiff to demonstrate:  (1) that he suffered an injury;  and (2) to show a direct connection between the injury and actions by the defendant.   See Johnson v. Rell, 119 Conn.App. 730, 737, 990 A.2d 354 (2010).

In the present case, the plaintiff alleges that he suffered an injury when Byrd deliberately and maliciously withheld information from the plaintiff to prevent him from using the information at his parole revocation hearing.   Specifically, the injury consists of the plaintiff not being able to use information that Byrd collected in his investigation of the incident that occurred on August 17, 2005, which lead to the revocation of the plaintiff's parole.   The plaintiff alleges sufficient facts to demonstrate that he suffered an injury and that there is a direct connection between Byrd's acts and the injury he suffered.   Therefore, the plaintiff has standing to bring his claims against Byrd and the court therefore denies the defendants' motion to dismiss as to Byrd based on this ground.

In addition to alleging that both defendants deliberately and maliciously withheld information, the plaintiff alleges that Williams was Byrd's supervisor.   The plaintiff further alleges that as Byrd's supervisor, Williams knew or should have known of Byrd's malicious actions.   Viewing the plaintiff's allegations in the most favorable light, a reasonable inference can be drawn that Williams was positioned, as Byrd's supervisor, to prevent the plaintiff from being denied the information from the parole revocation investigation.   Specifically, it can be inferred that Williams knew of Byrd's false testimony, that Williams chose not to inform the proper parties, including the plaintiff, that Byrd falsely testified, and that Williams chose not to provide the plaintiff with the information from the parole revocation investigation.   Therefore, the plaintiff has alleged facts sufficient to demonstrate a direct connection between his injury and Williams' conduct.   Accordingly, the plaintiff has alleged facts sufficient to establish standing to bring suit against Williams and the court therefore denies the defendants' motion to dismiss as to Williams based on this ground.

V

PERSONAL JURISDICTION

The defendants argue that the plaintiff failed to serve Williams in both her official and individual capacities, as statutorily required.   For this reason, the defendants argue that the court should dismiss the claim against Williams on the following grounds:  (1) lack of service of process;  (2) insufficient process;  and (3) insufficient service of process.¹¹  The plaintiff provides no response to the defendants' arguments.

First, the defendants argue that the court should dismiss the claims against Williams on the ground of a lack of service of process.   Lack of service of process requires that there exist no evidence of an attempt by the plaintiff to complete service of process.   See Elias v. Stamford, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 09 4016758 (March 18, 2010, Brazzel–Massaro, J.).   The present facts demonstrate that service of process was carried out upon the office of the attorney general in an attempt to serve Williams.   Thus, the defendants' lack of service argument has no merit.   Therefore, the court denies the motion to dismiss as to Williams on the ground of lack of service of process.

Secondly, the defendants argue that the court should dismiss the claims against Williams on the ground of insufficient process.   The defendants, however, fail to brief this argument in their memorandum of law.   Because the defendants failed to adequately brief this argument, the court considers this argument abandoned.  Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008).   Therefore, the court denies the motion to dismiss based on the ground of insufficient process.

Finally, the defendants argue that the court should dismiss the claims against Williams on the ground of insufficient service of process.  “[A]n action commenced by ․ improper service must be dismissed.”  (Internal quotation marks omitted.)  Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).  “Facts showing the service of process in time, form and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.”  (Emphasis in the original;  internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179–80, 554 A.2d 728 (1989), cert. denied, 216 Conn. 824, 582 A.2d 203 (1990).   “[W]hen a particular method of serving process is set forth by statute, that method must be followed ․” (Internal quotation marks omitted.)  Pedro v. Miller, 281 Conn. 112, 117, 914 A.2d 524 (2007).

“In order for a court to have personal jurisdiction over a state employee in his individual capacity, [the employee] has to be served by leaving a true and attested copy of [process], including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.  General Statutes § 52–57.”  (Internal quotation marks omitted.)   Brown v. Trestmoon, Superior Court, judicial district of Tolland, Docket No. CV 09 5005045 (March 4, 2010, Nazzaro, J.).

As stated in section III A, the plaintiff brings suit against the defendants in their individual capacities.   In the present case, the return of service indicates that service for Williams was made at 55 Elm Street, Hartford, Connecticut, within the hands of an assistant attorney general.   The court takes judicial notice that this address is that of the office of the attorney general.   This address is not that of Williams' place of employment or usual place of abode.   Because the plaintiff brings suit against Williams in her individual capacity, § 52–57 requires that service be effected upon Williams at her usual place of abode or upon her personally.   Because service of process was not properly effected upon Williams, service of process was insufficient to give the court personal jurisdiction over Williams in her individual capacity.   Therefore, the court grants the defendants' motion to dismiss as to Williams for lack of personal jurisdiction.

CONCLUSION

For the foregoing reasons, the defendants' motion to dismiss the plaintiff's complaint is granted as to Byrd on the ground of absolute testimonial immunity.   Furthermore, the defendants' motion to dismiss the plaintiff's complaint is granted as to Williams on the ground of inadequate service of process.   The defendants' motion to dismiss is granted as to count two of the plaintiff's complaint for both defendants on the ground of qualified immunity.   The grounds of absolute testimonial immunity and inadequate service of process are independently dispositive of the motion to dismiss as to each defendant.   Therefore, the motion to dismiss the plaintiff's complaint in its entirety is granted.

Wilson, J.

FOOTNOTES

FN1. It is unclear as to whether the plaintiff's due process claim is a federal claim, a state claim, or both.   Viewing the complaint in the light most favorable to the plaintiff, the court will view count one as both a state claim and a federal claim..  FN1. It is unclear as to whether the plaintiff's due process claim is a federal claim, a state claim, or both.   Viewing the complaint in the light most favorable to the plaintiff, the court will view count one as both a state claim and a federal claim.

FN2. The nature of the proceeding in which Byrd testified is unclear from the record.   The plaintiff does allege, however, that the testimony was given under oath in court.   The court interprets this allegation as meaning that Byrd testified in a court proceeding..  FN2. The nature of the proceeding in which Byrd testified is unclear from the record.   The plaintiff does allege, however, that the testimony was given under oath in court.   The court interprets this allegation as meaning that Byrd testified in a court proceeding.

FN3. The doctrines of sovereign immunity, statutory immunity and absolute testimonial immunity are Connecticut state law doctrines that apply only to state causes of action.   Qualified immunity, however, applies only to federal causes of action..  FN3. The doctrines of sovereign immunity, statutory immunity and absolute testimonial immunity are Connecticut state law doctrines that apply only to state causes of action.   Qualified immunity, however, applies only to federal causes of action.

FN4. In Byrd I, the factual allegations concern the defendants' failure to provide the plaintiff with written notice of a parole violation and denial of a preliminary hearing and a revocation hearing.   Byrd II incorporates the allegations of the previous action.   Additionally, it involves Byrd refusing to act on sexual harassment allegations, threatening the plaintiff, accusing the plaintiff of lying, remanding the plaintiff to custody without reason, refusing to release the plaintiff from custody, and the defendants fabricating the plaintiff's parole violation.   Hanton v. Williams, Docket No. CV 075015039, concerns the defendants breaching the conditional parole agreement between the parties, the defendants misrepresenting the reasons for the parole revocation, and the parole violation serving as retaliation against the plaintiff for a prior legal action..  FN4. In Byrd I, the factual allegations concern the defendants' failure to provide the plaintiff with written notice of a parole violation and denial of a preliminary hearing and a revocation hearing.   Byrd II incorporates the allegations of the previous action.   Additionally, it involves Byrd refusing to act on sexual harassment allegations, threatening the plaintiff, accusing the plaintiff of lying, remanding the plaintiff to custody without reason, refusing to release the plaintiff from custody, and the defendants fabricating the plaintiff's parole violation.   Hanton v. Williams, Docket No. CV 075015039, concerns the defendants breaching the conditional parole agreement between the parties, the defendants misrepresenting the reasons for the parole revocation, and the parole violation serving as retaliation against the plaintiff for a prior legal action.

FN5. No appellate authority has addressed whether the doctrine of absolute testimonial immunity implicates a court's subject matter jurisdiction.   However, “several judges of the Superior Court ․ have decided that the question does pertain to subject matter jurisdiction based on the determination that the decision of the Connecticut Supreme Court in Chada v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005), supports the conclusion that [the issue] does [pertain to subject matter jurisdiction].   Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 07 4027999 (February 11, 2008, Bellis, J.)” (Internal quotation marks omitted.)   Damato v. Thomas, Superior Court, judicial district of Hartford, Docket No. CV 095030385 (June 2, 2010, Peck, J.) [50 Conn. L. Rptr. 112]..  FN5. No appellate authority has addressed whether the doctrine of absolute testimonial immunity implicates a court's subject matter jurisdiction.   However, “several judges of the Superior Court ․ have decided that the question does pertain to subject matter jurisdiction based on the determination that the decision of the Connecticut Supreme Court in Chada v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005), supports the conclusion that [the issue] does [pertain to subject matter jurisdiction].   Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 07 4027999 (February 11, 2008, Bellis, J.)” (Internal quotation marks omitted.)   Damato v. Thomas, Superior Court, judicial district of Hartford, Docket No. CV 095030385 (June 2, 2010, Peck, J.) [50 Conn. L. Rptr. 112].

FN6. Section 5–141d(a) provides that:  “The state shall save harmless and indemnify any state officer or employee ․ from financial loss and expense arising out of a claim, demand, suit or judgment by reason of alleged negligence or alleged deprivation of any person's civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.”.  FN6. Section 5–141d(a) provides that:  “The state shall save harmless and indemnify any state officer or employee ․ from financial loss and expense arising out of a claim, demand, suit or judgment by reason of alleged negligence or alleged deprivation of any person's civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.”

FN7. The plaintiff does not allege that Williams testified at the revocation hearing or any other court proceeding.   Thus, there is no testimony to which privilege analysis could apply for Williams..  FN7. The plaintiff does not allege that Williams testified at the revocation hearing or any other court proceeding.   Thus, there is no testimony to which privilege analysis could apply for Williams.

FN8. The defendants argue in their memorandum of law that Byrd has absolute immunity for testimony given at the parole revocation hearing.   The plaintiff, in his objection to the motion to dismiss, argues that his claims do not raise any issue regarding Byrd's testimony at the parole revocation hearing that occurred on May 10, 2007.   The plaintiff states that his claims involve testimony that Byrd gave in a court proceeding on February 26, 2007..  FN8. The defendants argue in their memorandum of law that Byrd has absolute immunity for testimony given at the parole revocation hearing.   The plaintiff, in his objection to the motion to dismiss, argues that his claims do not raise any issue regarding Byrd's testimony at the parole revocation hearing that occurred on May 10, 2007.   The plaintiff states that his claims involve testimony that Byrd gave in a court proceeding on February 26, 2007.

FN9. The court interprets the plaintiff reference to “clearly established rights” as an indication that the plaintiff's due process claim is based upon the United States Constitution, not the constitution of Connecticut.   The language is contained in the second step of the two-step test for qualified immunity based upon a violation of a federal right.   See Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 816, 172 L.Ed.2d 565 (2009)..  FN9. The court interprets the plaintiff reference to “clearly established rights” as an indication that the plaintiff's due process claim is based upon the United States Constitution, not the constitution of Connecticut.   The language is contained in the second step of the two-step test for qualified immunity based upon a violation of a federal right.   See Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 816, 172 L.Ed.2d 565 (2009).

FN10. 1983 of Title 42 of the United States Code states:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress ․” (Internal quotation marks omitted.)   DiMartino v. Richens, 263 Conn. 639, 642 n.2, 822 A.2d 205 (2003)..  FN10. 1983 of Title 42 of the United States Code states:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress ․” (Internal quotation marks omitted.)   DiMartino v. Richens, 263 Conn. 639, 642 n.2, 822 A.2d 205 (2003).

FN11. The defendants do not contest service upon Byrd..  FN11. The defendants do not contest service upon Byrd.

Wilson, Robin L., J.