Devon Smith v. N. Rodriguez (2012)

MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO DISMISS

The defendant moves to dismiss the instant action on the grounds that it is barred by sovereign and statutory immunity, and alternatively, due to the plaintiff's failure to exhaust available administrative remedies.   For the reasons set forth below, the court agrees with each of the defendant's assertions and hereby grants the defendant's motion to dismiss.

FACTS

On January 6, 2012, the plaintiff, Devon Smith, commenced this action by service of process against the defendant, N. Rodriguez.   In his complaint, the plaintiff, who is proceeding as a self-represented party, alleges the following relevant facts.   On December 22, 2008, the defendant, a correctional counselor supervisor employed by the state of Connecticut's department of correction at the Cheshire Correctional Institution, ordered the plaintiff, an incarcerated inmate, to the prison's segregation housing unit.   There, the plaintiff alleges that the defendant supervised a strip search of the plaintiff before placing the plaintiff into restrictive housing “for wholly fictitious reasons.”   During this strip search, the plaintiff claims that the defendant ordered guards under his supervision to remove a Bulova watch from the plaintiff's wrist.   On that same date, the defendant issued the plaintiff a department of correction “inmate property receipt” for the subject watch.   According to the plaintiff, he has not seen his watch since the defendant took possession of it, and the plaintiff alleges that “it was stolen by [Cheshire Correctional Institution] staff due to defendant['s] deliberate violation of [department of correction] policy and procedures related to inmate property.”

The plaintiff subsequently filed a complaint with Kimberly Weir, the department of correction's director of security, who ordered an administrative investigation into the missing watch.   According to the plaintiff's allegations, the administrative investigation report dated June 11, 2009 ¹ indicated that the defendant “deliberately violated department of correction protocol related to the storage of inmate property” and that the defendant “also admitted to investigative staff that [he] deliberately deviated and violated [department of correction] policy, procedure and protocol related to the storage of the plaintiff's Bulova watch leading to it being stolen by staff.”   As a result of the defendant's conduct, the plaintiff alleges that he has been denied the use of his property and experienced emotional distress.   Accordingly, the plaintiff alleges causes of action against the defendant for recklessness and negligent infliction of emotional distress.   In his prayer for relief, the plaintiff seeks both money damages and punitive damages, as well as any other relief that the court may deem just and equitable.

On June 25, 2012, the defendant filed a motion to dismiss and a memorandum of law in support of his motion.   The defendant moves to dismiss this action on the ground that the court lacks subject matter jurisdiction because of sovereign immunity, statutory immunity and the plaintiff's failure to exhaust administrative remedies.   In support of his motion, the defendant attaches:  (1) a copy of the property claim form filed by the plaintiff before the department of correction's lost property board dated November 5, 2009;  (2) a copy of the lost property board's final decision on the plaintiff's claim dated March 28, 2011;  (3) a copy of an “Inmate Property Inventory Form” dated October 30, 2008;  (4) a copy of a complaint filed by the plaintiff before the small claims session of the Superior Court and (5) a copy of the court docket from the small claims case indicating that it was dismissed by the court.

In response to the defendant's motion to dismiss, the plaintiff filed a “motion to set aside defendant's motion to dismiss, to allow time for discovery” on July 13, 2012.   This motion attaches a copy of the June 11, 2009 incident report regarding the plaintiff's missing watch.   On July 17, 2012, the defendant filed a memorandum of law in opposition the plaintiff's motion to set aside.   Finally, on July 27, 2012, the plaintiff filed a “response to defendant's objection to plaintiff's motion to set aside motion to dismiss.”   This matter appeared on the August 20, 2012 short calendar.

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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

“Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4–165, implicate the court's subject matter jurisdiction.”  (Internal quotation marks omitted.)  Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009).   Accordingly, “a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action.”  (Internal quotation marks omitted.)  Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).

Additionally, “[u]nder [the exhaustion of administrative remedies doctrine], a 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 exhaustion of that remedy, the action must be dismissed.”  (Internal quotation marks omitted.)  Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009).  “Because the [exhaustion doctrine] implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim.”  (Internal quotation marks omitted.)  Id.

I

SOVEREIGN IMMUNITY AND STATUTORY IMMUNITY

The defendant first moves to dismiss this action on the grounds that it is barred by both sovereign immunity and statutory immunity and, as a result, the court lacks subject matter jurisdiction over this case.   In his memorandum of law, the defendant argues that because he is being sued in his official capacity as a state employee, this matter is, in effect, a case against the state and is precluded under the doctrine of sovereign immunity.   The defendant contends that because the state has not consented to this lawsuit through the office of the claims commissioner, sovereign immunity bars the plaintiff from bringing his causes of action against the defendant.

Additionally, the defendant argues that he is immune from suit pursuant to General Statutes § 4–165,² which prohibits state employees from being held personally liable unless their acts are committed outside the scope of their employment or otherwise wanton, reckless or malicious.³

“It is a well-established rule of the common law that a state cannot be sued without its consent.”  Lyon v. Jones, 291 Conn. 384, 396–97, 968 A.2d 416 (2009).   Moreover, the Supreme Court “[n]ot only ․ [has] recognized the state's immunity as an entity, but ․ also [has] recognized that because the state can act only 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 ․ Exceptions to this doctrine are few and narrowly construed under our jurisprudence.”  (Internal quotation marks omitted.)   Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).  “In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so.”   (Internal quotation marks omitted.)  Perrone v. State, 122 Conn.App. 391, 395, 988 A.2d 256 (2010).

“Common-law sovereign immunity is distinct from the statutory immunity provided by § 4–165 ․ By its own terms, § 4–165 applies only to state officers and employees sued in their personal capacities ․” (Citation omitted;  emphasis added.)  Hanna v. Capitol Region Mental Health Center, 74 Conn.App. 264, 268, 812 A.2d 95 (2002).  “It is well settled that the defense of sovereign immunity can be raised for claims brought directly against the state or against state employees acting in their official capacities.   Likewise, the defense of statutory immunity can be raised for claims brought against state employees acting in their individual capacities.”  (Citations omitted.)  Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006).   Our courts have made clear, however, that “the [statutory] immunity provided by § 4–165 does not apply if the doctrine of sovereign immunity does apply.”  Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002).

Accordingly, in order to determine whether sovereign or statutory immunity may potentially apply to the facts alleged in this case, the court needs first to decide whether the defendant is being sued in his official capacity.   If the defendant is being sued in his official capacity, then this action is a matter brought against the state to which sovereign immunity may apply.   If the defendant is being sued in his personal capacity, then statutory immunity may apply but sovereign immunity will not.  “To determine whether an action is against the state or against a defendant in his individual capacity, [Connecticut courts] look to the four criteria established by our Supreme Court in Somers [v. Hill, 143 Conn. 476, 479, 123 A.2d 468 (1956) ] ․ If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred [by sovereign immunity] ․ 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.)  Id., 216.

Applying these criteria to the present case, the court finds that the defendant is being sued here in his official capacity.   The plaintiff alleges that the defendant is employed by the Connecticut department of correction.   This lawsuit arises out of conduct that occurred in the scope of the defendant's official duties, in that the plaintiff inmate alleges that the defendant committed wrongful acts while storing the plaintiff's property at the Cheshire Correctional Institution.   Therefore, the first two criteria of the Somers test are established.   The state is also the real party in interest in this matter because “[d]amages are sought for injuries allegedly caused by the defendant for performing or not performing acts that are part of his official duties.”  Kenney v. Weaving, supra, 123 Conn.App. 216–17.   Additionally, the fourth criterion of the Somers test is met because “any judgment against the defendant based on the allegations in the ․ complaint will subject the state to liability.”  Id., 217.   Accordingly, this action is, in essence, against the state—one to which sovereign immunity, as opposed to statutory immunity, may properly apply.   See, e.g., Anderson v. Murphy, Superior Court, judicial district of Tolland, Docket No. CV 11 500552 (June 29, 2012, Shapiro, J.) (sovereign immunity, not statutory immunity, applied where inmate brought tort claims against department of correction employees for their allegedly incorrect use of restraints).

Based upon the above, and given that the plaintiff did not receive authorization from the claims commissioner to commence this action, the court concludes that sovereign immunity applies to this case, and that the defendant properly raises that doctrine as grounds to dismiss the plaintiff's action.   In reaching this conclusion, the court recognizes, of course, that the sovereign immunity enjoyed by the state is not absolute and that the legislature may expressly or by implication waive that immunity.   But the plaintiff here does not cite, and research also has failed to reveal, any statute authorizing (explicitly or implicitly) the plaintiff to bring an action in Superior Court against a correctional officer for prisoner property allegedly lost in the prison setting.   Lacking such legislative authorization, this action is barred by sovereign immunity and the defendant's motion to dismiss must be granted.

II

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

Although it has already been determined that sovereign immunity bars this action, the court further finds in favor of the defendant on his alternative contention and concludes that this matter, irrespective of the defense of sovereign immunity, must be dismissed because the plaintiff failed previously to exhaust his administrative remedies.   In his memorandum of law, the defendant contends that General Statutes § 18–81y ⁴ outlines a procedure for prison inmates to submit claims for compensation due to lost or damaged property.   The defendant argues that § 18–81y provides the appropriate mechanism for the plaintiff to seek redress for his missing property.   Moreover, the defendant notes that the plaintiff began to avail himself of the administrative procedures outlined in § 18–81y but the plaintiff did not seek permission from the claims commissioner to sue the state after the plaintiff received an unsatisfactory ruling from the lost property board.   Accordingly, the defendant argues that this court is without subject matter jurisdiction over the plaintiff's claims.⁵

“The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law ․ Under that doctrine, a 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 exhaustion of that remedy, the action must be dismissed ․ Thus, [our Supreme Court has] frequently held that [when] a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure ․ When, however, a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctrine would be consistent with the statutory scheme ․ Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief.”  (Citations omitted;  internal quotation marks omitted.)   Piteau v. Board of Education, 300 Conn. 667, 678–79, 15 A.3d 1067 (2011).

According to the attachments to the defendant's motion to dismiss, the plaintiff submitted a claim to the lost property board in 2009.   The lost property board awarded the plaintiff $50 for his watch on March 28, 2011.   Pursuant to § 18–81y, the plaintiff, if dissatisfied with that award, had sixty days to submit a claim to the claims commissioner.   There is no evidence in the record, however, indicating that the plaintiff sought this review with the claims commissioner.   In the court's opinion, the plaintiff's failure to pursue his action with the claims commission is fatal to the current action.

Section 18–81y sets forth a two-step administrative procedure that an inmate must follow with regard to claims for property lost in the prison.   This procedure expressly provides that an inmate initially must seek relief from the prison's lost property board, and then, if still aggrieved, may further pursue the claim with the state claims commissioner.   In the instant case, the plaintiff filed an appropriate claim with the lost property board, but he did not thereafter present his claim to the claims commissioner as provided for in § 18–81y.   By choosing not to pursue his statutory right of redress with the claims commissioner, the plaintiff failed to fulfill the legal requirement that he exhaust his available administrative remedies prior to commencing an action in court.   As noted above, this failure to exhaust cannot be overlooked by the court because it deprives the court of subject matter jurisdiction.   Indeed, lacking such jurisdiction, this court is not authorized to consider the merits of the plaintiff's claim and thus is obligated to grant the defendant's motion to dismiss on that basis.

CONCLUSION

For the reasons stated above, the defendant's motion to dismiss is hereby granted on the bases of sovereign immunity and the plaintiff's failure to exhaust his administrative remedies.

THE COURT

GOLD, J.

FOOTNOTES

FN1. The plaintiff attaches a copy of the June 11, 2009 report to his complaint..  FN1. The plaintiff attaches a copy of the June 11, 2009 report to his complaint.

FN2. General Statutes § 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. General Statutes § 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.”

FN3. In his opposition papers, the plaintiff contends that the court does have subject matter jurisdiction over this case but does not directly address the defendant's arguments with respect to either sovereign immunity or statutory immunity..  FN3. In his opposition papers, the plaintiff contends that the court does have subject matter jurisdiction over this case but does not directly address the defendant's arguments with respect to either sovereign immunity or statutory immunity.

FN4. Section 18–81y provides:  “The Commissioner of Correction shall establish a lost property board within the Department of Correction to hear and determine any claim by an inmate of a correctional facility who seeks compensation not exceeding three thousand five hundred dollars for lost or damaged personal property.   The board shall hear and determine each such claim and may, if it determines the claim is one which in equity and justice the state should pay, award damages.   If the board denies a claim in whole or in part, the inmate may, not later than sixty days after such decision, present the claim to the Claims Commissioner in accordance with section 4–147.   The filing of a claim with the lost property board shall toll the time limit for presenting a claim to the Claims Commissioner pursuant to section 4–148.   The Commissioner of Correction shall adopt regulations, in accordance with chapter 54, to implement the provisions of this section.”  (Emphasis added.).  FN4. Section 18–81y provides:  “The Commissioner of Correction shall establish a lost property board within the Department of Correction to hear and determine any claim by an inmate of a correctional facility who seeks compensation not exceeding three thousand five hundred dollars for lost or damaged personal property.   The board shall hear and determine each such claim and may, if it determines the claim is one which in equity and justice the state should pay, award damages.   If the board denies a claim in whole or in part, the inmate may, not later than sixty days after such decision, present the claim to the Claims Commissioner in accordance with section 4–147.   The filing of a claim with the lost property board shall toll the time limit for presenting a claim to the Claims Commissioner pursuant to section 4–148.   The Commissioner of Correction shall adopt regulations, in accordance with chapter 54, to implement the provisions of this section.”  (Emphasis added.)

FN5. As was the case with the plaintiff's reply to the defendant's immunity claims, see note 3, supra, the plaintiff's pleadings fail specifically to address the defendant's arguments with respect to whether he was required to adhere to the administrative process provided in § 18–81y..  FN5. As was the case with the plaintiff's reply to the defendant's immunity claims, see note 3, supra, the plaintiff's pleadings fail specifically to address the defendant's arguments with respect to whether he was required to adhere to the administrative process provided in § 18–81y.

Gold, David P., J.