Kermit Francis v. Joann Sulick et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS

BACKGROUND:

The self-represented plaintiff is currently an inmate incarcerated in a Connecticut correctional facility.   He has filed a complaint against three prosecutors of the office of the Connecticut State's Attorney, as well as others.   The gravamen of the complaint is his assertion that a witness to the crime of which he was convicted was allowed to “act as a confidential informer and enjoy anonymity.”   Complaint, ¶ 1.   It appears that the plaintiff is asserting that the defendants' alleged failure to provide the name of the confidential informant has hindered a habeas corpus proceeding.   He further alleges the undisclosed confidential informant, who he claims was defendant Casey Wilcox, was a witness to, and perpetrator of the crime of which the plaintiff was convicted, Complaint, ¶ 2 and not entitled to anonymity.

In an unnumbered initial paragraph of the complaint, the plaintiff claims violation of his constitutional rights, citing various federal and state constitutional provisions, as well as statutory references.   However, he does not specify which of his rights were violated, nor does he indicate any particular conduct by any defendant which resulted in such violation within the complaint.

The allegations against the three prosecutors appear to be claims of prosecutorial misconduct.   These defendants have filed a motion to dismiss the complaint against them on the ground of prosecutorial immunity.   The plaintiff has objected, stating he is not seeking monetary damages;  rather, he seeks a declaratory judgment and equitable relief and these defendants are not entitled to prosecutorial immunity.   The parties were afforded oral argument.

LEGAL STANDARD OF REVIEW:

“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.)  Cox v. Aiken, 278 Conn. 204, 210–11, 897 A.2d 71 (2006).

The standard governing a trial court's review of a motion to dismiss is well established.  “In ruling upon whether a complaint survives a motion to dismiss, 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.)   Brennan v. Fairfield, 58 Conn.App. 191, 195, 753 A.2d 396 (2000).

“Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong.”  (Citations omitted;  internal quotation marks omitted.)  Doe v. Roe, 246 Conn. 652, 661, 717 A.2d 706 (1998).  “A claim that [the] court lacks subject matter jurisdiction [may be raised] at any time.”  (Internal quotation marks omitted.)  Dowling v. Slotnik, 244 Conn. 781, 787, 712 A.2d 396 (1998).  “Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before proceeding further with the case.”  (Citations omitted;  internal quotation marks omitted.)  Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996).  “The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  Fink v. Golenbock, 238 Conn. 183, 199 n.13, 680 A.2d 1243 (1996).

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.   If the defendant submits no proof to rebut the plaintiff's jurisdictional allegations, the plaintiff need not supply evidence to support the complaint, but may rest on the jurisdictional allegations therein.  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

ANALYSIS:

I. Jurisdiction

There is no direct appellate authority as to whether an assertion of prosecutorial immunity invokes subject matter jurisdiction.   However, the issue has been addressed in various superior courts, including this one, and there is consistency in their rulings.   Prosecutorial immunity is akin to sovereign immunity.   Sovereign immunity invokes subject matter jurisdiction.   See, e.g., Hunt v. Brennan, Superior Court, judicial district of New Haven, Docket No. CV08–4031395 S (May 5, 2011, Woods, J.);   Damato v. Gailor, Superior Court, judicial district of Hartford, Docket No. CV 10 5034878 (March 9, 2011, Robaina, J.);   Diaz v. Palmese, Superior Court, judicial district of New Britain, Docket No. CV 10 5015049 (November 22, 2010, Young, J.);   Damato v. Thomas, Superior Court, judicial district of New Haven, Docket No. CV 09 5030385 (June 2, 2010, Peck, J.) [50 Conn. L. Rptr. 112].

II Immunity

These defendants claim absolute prosecutorial immunity.   When it applies, absolute immunity bars a civil lawsuit, “even if it leaves the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest actions deprives him of liberty.”  Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

The defendants are state's attorneys.   They enjoy absolute prosecutorial immunity only for acts undertaken as a function of their position.   The Connecticut Appellate Court has succinctly set forth the analysis for application of absolute immunity to prosecutors in Barese v. Clark, 62 Conn.App. 58, 773 A.2d 946 (2001):

Our Supreme Court, the United States Supreme Court and the federal courts of appeals have long recognized the existence of, and the need for, prosecutorial immunity.   Such immunity exists to allow prosecutors at the state and federal level to be free to perform their essential role in the judicial process without the possibility of civil liability hanging over their head as a sword of Damocles ․

The United States Supreme Court addressed the issue of a state prosecutor's amenability to suit under 42 U.S.C. § 1983 ․ in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).   Although that case arose under 42 U.S.C. § 1983 and not under state common law, the court engaged in an extensive discussion concerning the existence of common law immunities for prosecutors, the question at issue here.   The court did so because it previously had held in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), that “immunities well grounded in history and reason had not been abrogated by covert inclusion in the general language of § 1983.”   (Internal quotation marks omitted.)  Imbler v. Pachtman, supra, 418, quoting Tenney v. Brandhove, supra, 376.   As the court in Imbler stated:  “The decision in Tenney established that § 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them.”  Imbler v. Pachtman, supra, 418.

“The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties.   These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.”  Id., 422–23.

To allow a prosecutor to be subject to suit for actions performed as an integral part of the judicial process “would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby.   There would be involved in every case the possible consequences of a failure to obtain a conviction.   There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case ․ The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office.   The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement.”  Pearson v. Reed, 6 Cal.App.2d 277, 287, 44 P.2d 592 (1935). (footnotes omitted.)

Id. at 61–62.

The inquiry as to whether a prosecutor enjoys absolute immunity involves employing a “functional approach.”  “Immunities are grounded in ‘the nature of the function performed, not the identity of the actor who performed it.’   “ (Internal citation omitted.)  Clinton v. Jones, 520 U.S. 681, 695, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997).

The factual allegations which the plaintiff has shared with the court are these:  that Attorney O'Conner [sic] allowed an alleged witness to the crime to act as a confidential informant and enjoy anonymity, Complaint, ¶ 1;  that Attorney Macchiarullo did not comply with a court order of in camera disclosure of the name and criminal record of the criminal informant, Complaint, ¶ 4;  and that Attorney Sulick “exaggerated the record” when she stated to the court that Attorney Macchiarullo didn't know who the informant was, Complaint, ¶ 7.

The plaintiff has failed to allege any facts concerning conduct on the part of these defendants which would abrogate absolute immunity.   In his complaint, the plaintiff has not alleged the defendant state's attorneys acted outside the scope of judicial proceedings.   See, Buckley v. Fitzsimmons, 509 U.S. 259, 270–71, 113 S.Ct. 2606 (1993).   The plaintiff alleges no conduct on the part of these defendants that is apart from their function as prosecutors.   In the absence of the allegation of such facts, the defendants enjoy absolute prosecutorial immunity for the acts alleged in the plaintiff's complaint.   Imbler v. Pachtman, supra, 424 U.S. at 419 n.13.

Absolute immunity covers “virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate.  Hill v. City of New York, 45 F.3d 653, 659 n.2. “[P]rosecutors are absolutely immune from liability ․ for their conduct in initiating a prosecution and in presenting the State's case ․ insofar as that conduct is intimately associated with the judicial phase of the criminal process ․ It was recognized ․ that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom.”  (Citations omitted;  internal quotation marks omitted.)  Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).

The plaintiff contends that these defendants do not enjoy absolute immunity because he is seeking injunctive relief rather than damages.  “[T]he sovereign immunity enjoyed by the state is not absolute.   There are [three] exceptions:  (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity;  (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights;  and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority.”  (Internal citations omitted.)  Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).

The first exception is not claimed by the plaintiff.   As to the second, the plaintiff makes broad constitutional claims in the opening, unnumbered paragraph of his complaint, but fails to satisfactorily allege a substantial claim that the prosecutors violated his constitutional rights.   The plaintiff does not claim and does not allege that these defendants were promoting an illegal purpose in excess of their statutory authority, the third exception.

“In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper.”  (Citations omitted;  internal quotation marks omitted.)  Id. at 350;  Paragon Constr.   Co. v. Dept of Public Works, 130 Conn.App. 211, 222, 23 A.3d 732 (2011).   These defendants are entitled to pro secutorial immunity.   This court lacks subject matter jurisdiction.

CONCLUSION:

The defendants' motion to dismiss (102.00) is granted.   The objection to same (108.00) is overruled.

Robert E. Young, Judge

Young, Robert E., J.