Frankie Trimmer v. Warden Simple et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 102)

FACTS

On August 18, 2011, Frankie Trimmer (plaintiff), a prisoner at the Macdougall Correctional Institution, and formerly a prisoner in the Garner Correctional Institution, commenced this action against the City of Newtown (defendant), Warden Simple (Simple), the warden at the Garner Correctional Institution, and Captain Stowell (Stowell), a Department of Corrections officer.   The plaintiff alleges the following facts.   On November 22, 2010, the plaintiff was observed in a verbal altercation with another inmate at the Garner Correctional Institution.   The observing correctional officer interceded and stopped the altercation.   The observing officer additionally filed a disciplinary report against the plaintiff which was reviewed by Stowell.   The observing officer's resolution to the altercation was to separate the two prisoners.   The plaintiff responded to the observing officer by saying that a separation was unreasonable because the plaintiff and the other inmate were in the same facility and had similar obligations.   As a result, an assault by this inmate against the plaintiff was foreseeable.

The plaintiff further alleges that Stowell failed to report this threat to Simple.   Simple knew or should have known that no correctional officer had been assigned to monitor the hallway between the library/resource center and the religious service chapel area in order to avoid altercations between prisoners attending scheduled meetings.

On December 13, 2010, the plaintiff was attacked by the same inmate with whom he had a verbal altercation on November 22, 2010.   The plaintiff sustained injuries as a result of the attack and alleges that both Simple and Stowell are liable for, inter alia, failing to protect the plaintiff.   The plaintiff additionally alleges that the City of Newtown is liable for the promulgation and execution of a municipal policy and/or custom by the defendants Stowell and Simple prior to and during the attack on the plaintiff.   Furthermore, the defendants were alerted to a potentially serious problem of the lack of assigned correctional officers to monitor the religious service chapel and resource center/library hallway that joins them.   Because of this, the city has shown a deliberate indifference to the plaintiff's constitutional rights and it is liable for the actions of its employees, Simple and Stowell.

The plaintiff also alleges that the City of Newtown is required to indemnify its employees and that it is directly liable for their negligent acts.   Simple and Stowell are Newtown employees and were acting within the scope of their employment and/or their official duties.

On November 23, 2011, the defendant filed a motion to dismiss the claims in the complaint so far as they relate to the City of Newtown due to lack of personal jurisdiction.   The defendant has submitted a memorandum of law in support of the motion.   In response, on December 20, 2011, the plaintiff filed an objection and memorandum of law in opposition.   The matter was heard at the short calendar on December 12, 2011.

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “[A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.”  Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917 A.2d 959 (2007).

“Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss ․ If a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction.”  (Citations omitted;  internal quotation marks omitted.)   Golodner v. Women's Center of Southeastern Connecticut, Inc., supra, 281 Conn. 825.  “Generally speaking, when a defendant files a motion to dismiss challenging the court's jurisdiction, a two-part inquiry is required.   The trial court first must decide whether the applicable state statute authorizes the assertion of jurisdiction over the defendant.   If the statutory requirement is met, the court's second obligation is to decide whether the exercise of jurisdiction over the defendant would violate constitutional principles of due process.”   Id., 825 n.3.

In its memorandum of law in support of the motion to dismiss, the defendant argues that the claims, so far as they refer to the defendant, should be dismissed for lack of personal jurisdiction.   The defendant further argues that the statutes cited by the plaintiff for imposing vicarious or direct liability on the defendant are of no utility in this case.   The defendants submit an affidavit by Carole Ross, human resources director for the Town of Newtown.   In the affidavit, Carole Ross avers that neither Simple nor Stowell are employed by Newtown.   Consequently, the defendant argues that it cannot be held liable because it is not a proper party.

The plaintiff counters by arguing that Simple and Stowell are official policymakers of the City of Newtown.   He argues that because they were behind the deliberate indifference to the plaintiff's constitutional rights, the City of Newtown should also be liable.

The first issue to consider is the plaintiff's untimely response to the defendant's motion to dismiss.  Practice Book § 10–31(b) provides:  “Any adverse party who objects to this motion shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sections 10–12 through 10–17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.”   The plaintiff's response was filed with the court on December 20, 2011.   Because the defendant's motion was considered at the short calendar on December 12, 2011, the plaintiff's objection was untimely.

“Despite the language of Practice Book § 10–31(b), most courts have exercised discretion to address the merits of a motion to dismiss and to waive the five-day requirement when an opposing memorandum was untimely.”   Southern New England/SBC v. The Balf Co., judicial district of New Haven, Docket No. CV 03 0482272 (August 4, 2004, Skolnick, J.).   In addition to having the discretion to waive the five-day requirement, Practice Book § 1–8 serves as a ground for the court to liberally interpret the rules of procedure.   Practice Book § 1–8 provides:  “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”

In the present case, the plaintiff is an incarcerated, self-represented party.   Therefore, in the interest of preventing injustice and exercising its discretion, the court considers the plaintiff's objection to the defendant's motion to dismiss.

The next issue the court addresses is whether the defendant's motion to dismiss for lack of personal jurisdiction is proper.   The defendant argues that it is not a proper party to this action because the other two defendants, Simple and Stowell, are not employees of Newtown.  “[S]uing the wrong party ․ is not a jurisdictional defect ․ Nor, does it suggest that the court lacks subject matter or personal jurisdiction, improper venue, or insufficiency of service of process, one of the four grounds that may be asserted in a motion to dismiss, as enumerated under Practice Book § 10–31(a)(1)–(4).” ¹  (Citations omitted;  internal quotation marks omitted.)   Big East Equipment v. Ohio Casualty Ins., Superior Court, judicial district of New Haven, Docket No. CV 03 0480878 (August 31, 2004, Zoarski, J.).

In Arcal Corp v. Smith, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 97 0159514 (November 23, 1998, Lewis, J.), the plaintiff filed a complaint alleging the defendant owed it money for goods sold.   The plaintiff sought to recover from the defendant individually and through two of his alleged businesses.   The plaintiff was granted a default judgment after the defendant failed to appear.   The defendant eventually appeared and was granted a motion to reopen judgment.   The defendant then filed a motion to dismiss.   The court denied the defendant's motion to dismiss, holding that a motion to dismiss is an improper vehicle for asserting that the wrong party was sued.   The court stated:  “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.”   Because the defendant's motion to dismiss was based on the argument that the plaintiff's action is against an improper party, the court held that “[t]he defendant's motion to dismiss fails to set forth any claim for lack of subject matter or personal jurisdiction, improper venue, or insufficiency of process or service of process as required by Practice Book § 10–31.   Defendant's allegations attempt to establish that he and the corporation he worked for are two separate entities.   These allegations, even if true, are not proper grounds for a motion to dismiss.”

In the present case, the defendant seeks to dismiss for lack of personal jurisdiction.   Its argument, however, is premised on the fact that it is an improper party because the other named defendants, Simple and Stowell, are not employed by the defendant.   While the defendant offers the affidavit of Carole Ross attesting that Simple and Stowell are not employees of the defendant, the motion to dismiss is not the proper procedural vehicle in this case.   A motion to dismiss disputes, inter alia, a lack of jurisdiction over the party.   Suit against an improper party does not affect the court's jurisdiction over the defendant.   Consequently, the defendant's motion to dismiss is denied.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to dismiss.

Woods, J.

FOOTNOTES

FN1. Practice Book § 10–31(a) provides in relevant part:  “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of service of process.”.  FN1. Practice Book § 10–31(a) provides in relevant part:  “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of service of process.”

Woods, Glenn A., J.