Steven Gary v. Damon Kirschbaum (2011)

MEMORANDUM OF DECISION IN RE MOTION TO DISMISS (# 102)

FACTS

On February 8, 2010, the self-represented plaintiff, Steven Gary, filed a complaint alleging legal malpractice against the defendant, Damon Kirschbaum.   The plaintiff alleges the following facts.   On October 2, 2001, the plaintiff was convicted by a jury of “murder, carrying a pistol without a permit and criminal possession of a firearm.”   After the conviction, the plaintiff filed a petition for a writ of habeas corpus claiming that he was given ineffective assistance of counsel at trial.   The petition was “unsuccessful.”   Thereafter, the plaintiff filed a second habeas petition claiming that he was being “unlawfully detained due to an unfair trial and a lack of due diligence by all prior counsels to effectively challenge the conviction.”   The plaintiff now claims that the defendant, who currently represents the plaintiff in the second habeas proceeding, “has denied [him] effective assistance of habeas counsel” by refusing to raise certain claims regarding the competence of his trial attorney and his attorney in the first habeas proceeding.   The plaintiff seeks damages in the amount of $1 million.

On March 31, 2011, the defendant moved to dismiss the plaintiff's action on the ground that, based on the allegations presented in the complaint, the defendant is statutorily immune from suit and therefore the court lacks subject matter jurisdiction over the action.   In support of his motion, the defendant filed a memorandum of law.   The plaintiff did not file a reply.

DISCUSSION

Practice Book § 10–31(a) provides in pertinent part that “[t]he motion to dismiss shall be used to assert ․ lack of jurisdiction over the subject matter ․” “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.”   (Internal quotation marks omitted.)  Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).  “[T]he doctrine of [statutory] immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  (Internal quotation marks omitted.)  Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002).

“[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).  “If, however, the defendant submits ․ no proof to rebut the plaintiff's jurisdictional allegations ․ the plaintiff ․ may rest on the jurisdictional allegations therein.”  (Citation omitted.)  Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).   In such a case, “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.)  Id., 651.

The defendant argues that the plaintiff's legal malpractice action should be dismissed because it is barred by General Statutes § 4–165,¹ which protects state officers and employees from personal liability for negligence in the discharge of their duties or within the scope of their employment.   The defendant does not present any evidence in support of his argument;  rather, he relies entirely on the allegations of the plaintiff's complaint.   In particular, the defendant claims that § 4–165 applies in the present case because the plaintiff's allegations pertain to the defendant's actions as a special assistant public defender and, moreover, the plaintiff does not allege any wanton, reckless or malicious conduct.

“The statutory immunity provided by § 4–165 is distinct from common-law sovereign immunity.”  Kenney v. Weaving, 123 Conn.App. 211, 218, 1 A.3d 1083 (2010).   While “an action against state employees in their official capacities is, in effect, an action against the state ․ [and] the only immunity that can apply is the immunity claimed by the state itself-sovereign immunity”;  (citation omitted) Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006);  “ § 4–165 applies only to state officers and employees sued in their personal capacities, and is therefore inapplicable to the determination of whether ․ [the state] is immune from suit.”  (Emphasis added.)  Hanna v. Capitol Region Mental Health Center, 74 Conn.App. 264, 268, 812 A.2d 95 (2002).

“[Section] 4–165 was intended to grant state employees immunity where and because the state may be sued ․” (Internal quotation marks omitted.)   McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981).   Under the statute, “state employees may not be held personally liable for their negligent actions performed within the scope of their employment.   This provision of statutory immunity to state employees has a twofold purpose.   First, the legislature sought to avoid placing a burden upon state employment.   Second, § 4–165 makes clear that the remedy available to plaintiffs who have suffered harm from the negligent actions of a state employee who acted in the scope of his or her employment must bring a claim against the state ‘under the provisions of this chapter,’ namely, chapter 53 of the General Statutes, which governs the office of the claims commissioner.” ²  Miller v. Egan, 265 Conn. 301, 319, 828 A.2d 549 (2003).  “Stated differently, the statute, while affording a person the potential right to sue the state, denies that person his right of action against the state's employees.”  Spring v. Constantino, 168 Conn. 563, 570, 362 A.2d 871 (1975).

Thus, the defendant is clothed with the immunity granted by § 4–165 if the following requirements are satisfied:  (1) the defendant is a “state officer or employee” within the meaning of the statute;  (2) the defendant is sued in his personal capacity rather than in his official capacity;  (3) the injury was caused in the discharge of the defendant's duties or within the scope of his employment;  and (4) the defendant's actions were not “wanton, reckless or malicious.”  General Statutes § 4–165(a).

The defendant claims that, as a special assistant public defender, he may invoke the protection of § 4–165.  “The legislature, through the enactment of Public Acts 1976, No. 76–371, § 2, added public defenders to the definition of ‘state officers and employees' entitled to qualified, statutory ․ immunity pursuant to § 4–165.”  Carrubba v. Moskowitz, 274 Conn. 533, 542 n.8, 877 A.2d 773 (2005).  General Statutes § 4–141 now broadly provides that “[a]s used in this chapter ․'state officers and employees' includes ․ attorneys appointed by the Public Defender Services Commission as public defenders, assistant public defenders or deputy assistant public defenders and attorneys appointed by the court as special assistant public defenders ․” “Thus, § 4–141 on its face makes § 4–165 applicable to attorneys appointed by the court as special assistant public defenders ․” (Internal quotation marks omitted.)  Lemoine v. McCann, 40 Conn.App. 460, 463, 673 A.2d 115, cert. denied, 237 Conn. 904, 674 A.2d 1330 (1996).

The plaintiff does not specifically allege that the defendant is a special assistant public defender.   Nevertheless, “constru[ing][the] pleadings broadly and realistically, rather than narrowly and technically”;  DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 140, 998 A.2d 730 (2010);  the facts necessarily imply that the defendant is a type of public defender who may invoke the immunity of § 4–165.   In particular, the plaintiff alleges that (1) the defendant is his “habeas corpus counsel”;  (2) the alleged malpractice was committed by the defendant in his “official capacity”;  and (3) the defendant “has denied [him] effective assistance of habeas counsel, which is afforded to Connecticut prisoners under statutory law.”   Such statutorily mandated legal assistance in habeas cases may be provided by a public defender, assistant public defender, deputy assistant public defender or a special assistant public defender.   See General Statutes §§ 51–296 ³ , 51–291 ⁴ and 51–293.⁵  Under the facts alleged, therefore, the defendant qualifies as a “state officer or employee” within the meaning of § 4–165.

Having concluded that the defendant is a state officer or employee for purposes of the statute, the court must look to well-established principles in order to determine the capacity in which he has been sued.  “ ‘[T]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent ․ The vital test is to be found in the essential nature and effect of the proceeding.’  Somers v. Hill [143 Conn. 476, 479, 123 A.2d 468 (1956) ].   The Somers case (p. 480) laid down the following criteria for determining whether ‘the suit is, in effect, one against the state and cannot be maintained without its consent’:  (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.”   Spring v. Constantino, supra, 168 Conn. 568.  “If all four criteria are satisfied, the action is deemed to be against the state ․” (Emphasis added.)  Kenney v. Weaving, supra, 123 Conn.App. 216.  “The court may ․ look to the complaint and the plaintiff's arguments in determining whether the plaintiff's claim is brought against [the defendant] in [his or] her individual or official capacity.”   Allstate Ins. Co. v. State, Superior Court, judicial district of New London, Docket No. CV 10 6004056 (November 12, 2010, Martin, J.) (51 Conn. L. Rptr. 83, 84).

In the present case, the plaintiff unequivocally alleges that he “brings action against [the defendant] in his individual capacity ․” This allegation establishes that the state is not the real party against whom relief is sought and that the third Somers factor is not met.   See Vines v. Lantz, Superior Court, judicial district of New Haven, Docket No. CV 09 4037453 (March 7, 2011, Lager, J.) (stating principle that action is brought against state officer in his individual capacity when “a complaint unambiguously alleges that a state official is sued in his or her individual capacity” [internal quotation marks omitted] );  Johnson v. Juvenile Training School, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 05 4003278 (October 20, 2005, McWeeny, J.) (holding that third prong of Somers test was not satisfied where “[t]he amended complaint specifically states that the plaintiff seeks to hold the individual defendants liable in their individual capacities”);  see also Miller v. Egan, supra, 265 Conn. 309 (holding that third prong of Somers test was satisfied where “[n]owhere in the plaintiff's complaint did he allege that he was bringing an action against the defendants in their individual capacities”).   Because “the right of a plaintiff to recover is limited by the allegations of the complaint”;  (internal quotation marks omitted) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002);  the court must conclude that the plaintiff has sued the defendant in his personal capacity and not in his official capacity.

Finally, “[w]hen, as here, the motion to dismiss raises the issue of statutory immunity under § 4–165, the court must ‘examine the pleadings to decide if the plaintiff has alleged sufficient facts with respect to personal immunity under § 4–165, to support a conclusion that the defendant[s] [were] acting outside the scope of [their] employment or wilfully or maliciously.’   “ Kelly v. Albertsen, 114 Conn.App. 600, 606, 970 A.2d 787 (2009), quoting Martin v. Brady, supra, 261 Conn. 376.  “In order to determine if a state actor's conduct is caused in the discharge of his or her duties or within the granted statutory authority, it is necessary to examine the nature of the alleged conduct and its relationship to the duties incidental to the employment.”  Martin v. Brady, supra, 377.  “ ‘[S]cope of employment’ includes ․ representation by an attorney appointed by the Public Defender Services Commission as a public defender, assistant public defender or deputy assistant public defender or an attorney appointed by the court as a special assistant public defender of an indigent accused ․” General Statutes § 4–165(b).  Here, the plaintiff alleges that the defendant, as his “second habeas counsel,” refused to raise certain legal claims in furtherance of the plaintiff's second habeas proceeding.   Because the defendant's alleged conduct was committed in the course of his representation of the plaintiff, it was therefore within the scope of his employment for purposes of the statute.

Furthermore, the plaintiff does not allege any “wanton, reckless or malicious conduct.   Our Supreme Court has observed:  “[W]e have never definitively determined the meaning of wanton, reckless or malicious as used in § 4–165.   In the common-law context, however, we have stated:  In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, 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 ․ [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Internal quotation marks omitted.)  Martin v. Brady, supra, 261 Conn. 379.   In the present case, the plaintiff's specific allegations focus on the defendant's refusal to raise the following claims in the plaintiff's second habeas proceeding:  (1) “[t]rial counsel has denied the petitioner effective assistance where trial counsel stipulated to petitioner being a ‘prior convicted felon’ in possession of a firearm ․ [where] [p]etitioner['s] only prior conviction was adjudicated under the Youthful Offender Act, thus, the conviction is sealed”;  (2) “[t]rial counsel failed to contest the admissibility of the prior conviction, thereby, causing petitioner's trial to be prejudiced by impermissible evidence”;  (3) “trial counsel failed to object to the prosecutor's improper disparaging comments about certain witnesses credibility, as well as, the credibility of the petitioner ․ [a]nd where the prosecutor vouched for the credibility of one of its witnesses”;  and (4) the “first habeas counsel ․ fail[ed] to raise [the aforementioned claims] against trial counsel.”   Even when viewed in a manner most favorable to the plaintiff, these allegations, without more, do not constitute facts that transgress the bounds of gross or even ordinary negligence or involve an “extreme” departure of ordinary care.   See Wright v. DeSantis, Superior Court, judicial district of New Haven, Docket No. CV 09 5032806 (June 15, 2011, Wilson, J.) (allegations that special public defender failed to obtain transcripts and information about witnesses not wanton, reckless or malicious);  Smith v. Dowd, Superior Court, judicial district of Hartford–New Britain, Docket No. CV 93 0521767 (October 27, 1993, Aurigemma, J.) (allegations that public defender violated Code of Professional Responsibility and provided incorrect legal advice not wanton, reckless or malicious).

The court recognizes “the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.”  (Internal quotation marks omitted.)  New Haven v. Bonner, 272 Conn. 489, 497–98, 863 A.2d 680 (2005).  “The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their lack of legal education and experience ․” (Internal quotation marks omitted.)  Oliphant v. Commissioner of Correction, 274 Conn. 563, 569, 877 A.2d 761 (2005).  “This rule of construction has limits, however.   Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.”  (Internal quotation marks omitted.)   Id., 570.   Here, the plaintiff has not satisfied his burden to prove that the court has subject matter jurisdiction over his action.  Fort Trumbull Conservancy, LLC v. New London, supra, 265 Conn. 430 n. 12.   Because § 4–165 provides the defendant with immunity under the facts alleged, the motion to dismiss is granted.

Wilson, J.

FOOTNOTES

FN1. 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.”.  FN1. 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.”

FN2. “The procedure for claims that must proceed through the claims commissioner is well delineated.”  Miller v. Egan, 265 Conn. 310, 319, 828 A.2d 549 (2003).  “An individual having a liability claim for which a state employee is immune pursuant to ․ § 4–165 may present it as a claim against the state to the claims commissioner.   General Statues § 4–165.  ‘When the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim’ ․ General Statutes § 4–160(a).”  McKinley v. Musshorn, supra, 185 Conn. 621..  FN2. “The procedure for claims that must proceed through the claims commissioner is well delineated.”  Miller v. Egan, 265 Conn. 310, 319, 828 A.2d 549 (2003).  “An individual having a liability claim for which a state employee is immune pursuant to ․ § 4–165 may present it as a claim against the state to the claims commissioner.   General Statues § 4–165.  ‘When the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim’ ․ General Statutes § 4–160(a).”  McKinley v. Musshorn, supra, 185 Conn. 621.

FN3. Section 51–296 provides in relevant part:  “(a) ․ in any habeas corpus proceeding arising from a criminal matter ․ the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant ․(b) In the case of codefendants, the court may appoint one or more public defenders, assistant public defenders or deputy assistant public defenders to represent such defendants or may appoint counsel from the trial list established under section 51–291.”.  FN3. Section 51–296 provides in relevant part:  “(a) ․ in any habeas corpus proceeding arising from a criminal matter ․ the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant ․(b) In the case of codefendants, the court may appoint one or more public defenders, assistant public defenders or deputy assistant public defenders to represent such defendants or may appoint counsel from the trial list established under section 51–291.”

FN4. Section 51–291 provides in relevant part:  “The Chief Public Defender shall ․ (11) Maintain one or more lists of trial lawyers who may be available to represent persons in habeas corpus proceedings arising from criminal matters ․ which lawyers shall be selected by a judge of the court before which the matter is to be heard.”.  FN4. Section 51–291 provides in relevant part:  “The Chief Public Defender shall ․ (11) Maintain one or more lists of trial lawyers who may be available to represent persons in habeas corpus proceedings arising from criminal matters ․ which lawyers shall be selected by a judge of the court before which the matter is to be heard.”

FN5. Section 51–293 refers to such an attorney as mentioned in subsection (11) of § 51–291 as a “special assistant public defender.”   Specifically, § 51–293(a)(2) provides in relevant part:  “This section shall not prevent a judge of the Superior Court from appointing a special assistant public defender on a contractual basis for a temporary period of time in an appropriate case, whose expenses and compensation shall be paid from the budget of the Public Defender Services Commission ․ Whenever possible, any such appointment shall be made from a list of attorneys provided by the commission and submitted to the court by the office of the Chief Public Defender.”.  FN5. Section 51–293 refers to such an attorney as mentioned in subsection (11) of § 51–291 as a “special assistant public defender.”   Specifically, § 51–293(a)(2) provides in relevant part:  “This section shall not prevent a judge of the Superior Court from appointing a special assistant public defender on a contractual basis for a temporary period of time in an appropriate case, whose expenses and compensation shall be paid from the budget of the Public Defender Services Commission ․ Whenever possible, any such appointment shall be made from a list of attorneys provided by the commission and submitted to the court by the office of the Chief Public Defender.”

Wilson, Robin L., J.