Cordelia Thorpe v. J. Robert Galvin, Commissioner of Public Health et al. (2011)

MEMORANDUM OF DECISION REGARDING DEFENDANTS' FEBRUARY 26, 2010 MOTION TO DISMISS

The defendants, Department of Children and Families, Commissioner Susan I. Hamilton, John Ignatowski and Elizabeth Howard, pursuant to Practice Book § 10–30 and 10–31, moved the Court to dismiss the captioned matter because the same is barred by the Doctrine of Sovereign Immunity and/or the failure to exhaust all administrative remedies.

On May 7, 2010, the plaintiff filed a Memorandum of Law in Opposition to the Motion to Dismiss.

The plaintiff, Cordelia Thorpe, sought declaratory and injunctive relief against the Commissioner of the Department of Public Health (DPH), the State of Connecticut, the Department of Public Health, and several employees of the Department of Public Health.   The plaintiff also named as defendants Susan I. Hamilton, then Commissioner of the Department of Children and Families (DCF);  the State of Connecticut Department of Children and Families;  John Ignatowski and Elizabeth Howard, social workers employed by DCF.

The plaintiff avers that she held a license for a Connecticut family daycare facility.   She seeks to prevent the Department of Public Health from revoking her daycare license.

The Department of Public Health is the licensing authority for family daycare licenses such as the plaintiff's.   The plaintiff has sued DCF, Commissioner Hamilton and two DCF social workers alleging that it/they erred in the investigation of the plaintiff which resulted in a finding of substantiation of physical neglect of the child on or about February 19, 2008 and or about June 23, 2008 (Complaint ¶ 37).

The plaintiff's central complaint against DCF is apparently that the investigation was “biased and flawed” (Complaint ¶ 13).   She avers that Commissioner Hamilton acted “arbitrarily, capriciously and in an abuse of her discretion and manner amounted to a clearly unwarranted exercise of discretion relative to the substantiation of the plaintiff's DCF cases on or around February 19, 2008 and June 23, 2008 with a substantiation of child neglect, based upon biased and discriminatory investigations.   Substantial evidence was not presented relative to the allegations made by defendant Ignatowski and relied upon by defendant DPH. These investigations were biased and discriminatory substantiations based upon biased and discriminatory DCF investigations.   These investigations are currently under appeal ․” (Complaint ¶ 45.)

The plaintiff's prayer for relief seeks that the Superior Court “order the defendant DCF to withdraw their child abuse and neglect substantiations against plaintiff” and “that defendants should be required to compensate the plaintiff for all damages associated with this case.”  (Complaint ¶¶ 4 and 5.)

The parties agree that the DCF provided the plaintiff with two notices of substantiation of child neglect.   The plaintiff claims a hearing to challenge those DCF's substantiations.   However, the plaintiff has requested that her administrative hearings be deferred.   The Department of Public Health granted the plaintiff's request.   As of the date of the filing of this motion, the plaintiff has not requested her administrative hearing to challenge the substantiations of child neglect made by DCF.

STANDARD OF REVIEW:

“The parties agree that once the question of lack of jurisdiction of court is raised, it must be disposed of no matter in what forum it is presented, ․ and the court must fully resolve it before proceeding further with the case ․ subject matters jurisdiction, unlike jurisdiction of person, cannot be created through consent or waiver.”  Viera, 207 Conn. 420, 427–30 (1988).  “Because the exhaustion [of administrative doctrine] implicates subject matter's jurisdiction, [the court] must decide as a threshold matter whether that matter requires dismissal of the [plaintiff's] claim.”  Gerardi v. City of Bridgeport, 99 Conn.App. 315, 317 (2007).

“The parties further agree that it is a well settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter,” Housing Authority v. Papandrea, 222 Conn. 414, 420 (1992).  “Under our exhaustion of administrative remedies doctrine, the trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ․ in the absence of the exhaustion of that remedy, the action must be dismissed.”  Drumm v. Brown, 245 Conn. 657, 676 (1998).

In the instant matter, the plaintiff's claims are premised upon alleged errors in the DCF investigation.   As an administrative hearing process exists to challenge the Department's determination as to whether the plaintiff has neglected a child, C.G.S. § 17a–101(k), this remedy must be exhausted prior to instituting a civil action in the Superior Court.   The above-cited hearing process is governed by the Uniform Administrative Procedures Act and our Supreme Court has repeatedly held that the procedures required by the UAPA exceed the minimal procedural safeguards mandated by the due process clause.   Pet v. Department of Health Services, 228 Conn. 651, 661 (1994).

The plaintiff “may not bypass the statutory procedure and instead bring an independent action to test the very issue for which the administrative appeal is designed to test.”  LaCroix v. Board of Education, 199 Conn. 70, 78 (1986).

Consequently, this court lacks subject jurisdiction over the present action.   Stepney, LLC v. Town of Fairfield, 263 Conn. 558 (2003).

In addition thereto, the Doctrine of Sovereign Immunity bars the prosecution of this claim as well.  “In Connecticut, we have long recognized the validity of the common law principle that the State cannot be sued without its consent, and that since the State can only act through its officers and agents, a suit against a State officer is, in effect, one against the sovereign state ․” Horton v. Meskill, 172 Conn. 615, 622 (1977).

The Doctrine of Sovereign Immunity implicates subject matter's jurisdiction and is therefore the basis for granting a motion to dismiss.  Amore v. Frankel, 228 Conn. 358, 364 (1994).

While the plaintiff avers that the present lawsuit is brought pursuant to C.G.S. §§ 52–29, 52–471 and Practice Book § 17–54, et seq.  (Complaint ¶ 1), none of those statutes waive the State's sovereign immunity.

Here the plaintiff seeks injunctive relief directing DCF to reverse the results of its investigation.   While sovereign immunity is not a bar to a request for injunctive relief where a plaintiff makes “a substantial claim that the State or one of its officers has violated the plaintiff's constitutional rights,” or when an action seeks 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” Daimler Chrysler Corp. v. Law, 284 Conn. 701, 720 (2007), the plaintiff makes no such allegations in this case.

In sum, the plaintiff's claims for injunctive relief are barred by the Doctrine of Sovereign Immunity.

The plaintiff also asserts claims for money damages, see above.   The exceptions to the Doctrine of Sovereign Immunity noted above do not apply to claims for money damages against the State.  Prigge v. Ragaglia, 265 Conn. 338 (2003).   As the plaintiff does not name Susan Hamilton, John Ignatowski or Elizabeth Howard in their individual capacity, nor have they been served in their individual capacity as would have been required by C.G.S. § 52–57, they are only sued in their representative capacity as agents of the State and, as such, the claim for money damages against the agents of the State is barred.  “Nowhere in the plaintiff's Complaint did she allege that she was bringing an action against the defendants in their individual capacities ․ the right of a plaintiff to recover is limited to the allegations of her Complaint ․” Miller v. Egan, 265 Conn. 301, 309–10 (2003).   These defendants have been sued solely in their official capacity and as such it is no different than from the suit against the State itself and is therefore barred by the Doctrine of Sovereign Immunity, Doe v. Heintz, 204 Conn. 17 (1987).  “When a plaintiff brings in an action for money damages against the State, she must proceed through the Office of the Claims Commissioner pursuant to Chapter 53 of the General Statute, § 4–141 through 4–165.   Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the Doctrine of Sovereign Immunity.”  Prigge v. Ragaglia, supra, ¶ 343 (2003).

WHEREFORE, the defendants' February 26, 2010 Motion to Dismiss is granted with respect to the defendants DCF, Commissioner Susan Hamilton, John Ignatowski and Elizabeth Howard.

BY THE COURT

ZEMETIS, T.

Zemetis, Terence A., J.