Sylvester Traylor v. Terry Gerratana et al. (2012)

Ruling on Motion to Dismiss

The self-represented plaintiff has filed this lawsuit seeking a writ of mandamus, damages, and declaratory and injunctive relief against twelve state legislators, several judicial officials and state courts, the state of Connecticut (collectively, the state defendants), and one private defendant, the Connecticut Medical Insurance Company (CMIC).   All defendants move to dismiss on the grounds of immunity and other jurisdictional doctrines.   The court grants the motions to dismiss.

I

The record reveals that the plaintiff has filed at least three prior lawsuits arising from his wife's death in 2004.   The superior court dismissed the first suit, which sounded in medical malpractice, primarily because the plaintiff failed to submit a medical opinion letter as required in such actions by General Statutes § 52–190a.   See Traylor v. State, 128 Conn.App. 182, 183–84, 15 A.3d 1173, cert. denied, 301 Conn. 927, 22 A.3d 1276 (2011).¹  The court has dismissed a second action, which sought mandamus relief to enforce claims made in the first action, primarily because mandamus is not the proper remedy to challenge judicial rulings.  Id., 184–85.   The plaintiff appealed both judgments.   The Appellate Court dismissed the first appeal and affirmed the judgment in the second appeal.   Traylor v. Awwa, A.C. 33038 (dismissed December 14, 2011), cert. denied, 303 Conn. 931, 36 A.3d 242 (2012);  Traylor v. State, supra, 128 Conn.App. 182.   In January 2011, the plaintiff brought a third suit against various state officials and private defendants arising out of rulings in these two earlier suits.   The defendants removed this suit to federal court, where it remains pending.   See Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. KNL CV11–5014139S;  Traylor v. Awwa, 3:11–CV–00132 (AWT) (D.Conn.).²

II

In November 2011, the plaintiff filed this fourth suit challenging rulings made in the prior suits, the constitutionality of § 52–190a, and the legislature's failure to enact an amendment to 52–190a.   The initial dispute centers on identifying the operative complaint.   The defendants' motions, filed on January 5, 2012, seek to dismiss an amended 77–page complaint filed by the plaintiff on December 21, 2011 (# 106).   On August 27, 2012, over seven months after the defendants moved to dismiss, the plaintiff submitted a request to amend and a proposed 100–page amended complaint. (# # 156, 157).   All defendants objected to the request to amend (# # 162, 164), but the court has never ruled specifically on those objections.

The plaintiff claims that the August 2012 complaint is the operative one.   His position is incorrect.   The governing rule is that “[w]henever the absence of jurisdiction is brought to the notice of the court or tribunal, recognizance of it must be taken and the matter passed upon before it can move one further step in the cause, as any movement is necessarily the exercise of jurisdiction.”   (Internal quotation marks omitted.)  FDIC v. Peabody, N.E. Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996).   Thus, it is inappropriate to consider a proposed amended complaint when, as here, there is a motion to dismiss the existing complaint.  Id., 99–100;  Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991).   Therefore, the December 2011 complaint is the operative one.³

III

In ruling on a motion to dismiss, the 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.)  DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 635 (2007).   Even doing so, the motions to dismiss are well taken.   The court lacks jurisdiction over the state defendants sued in their individual capacities because the plaintiff has not served them individually as required by General Statutes §§ 52–54 and 52–57.   See Edelman v. Page, 123 Conn.App. 233, 243–44, 1 A.3d 1188, cert. denied, 299 Conn. 908, 10 A.3d 525 (2010).   Moreover, the individual state defendants have immunity from state law money damage claims under General Statutes § 4–165 because the plaintiff has not alleged any conduct that was outside the scope of their employment or “wanton, reckless, or malicious.”   See Martin v. Brady, 261 Conn. 372, 376–81, 802 A.2d 814 (2002).   With regard to money damage claims based on federal law, the individual state officials can invoke qualified immunity because the plaintiff has not alleged facts showing “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011).   See also Sullins v. Rodriguez, 281 Conn. 128, 133–34, 913 A.2d 415 (2007) (§ 4–165 immunity limited to state law claims).

The legislators and judicial officials sued in their individual capacities for damages have absolute immunity from suit based on the nature of their office.   Because the plaintiff has sued state legislators for decisions they made in their legislative capacity, the legislators have absolute immunity from suit regardless of the propriety of those decisions.   See Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 559–63, 567, 858 A.2d 709 (2004).   Similarly, absolute judicial immunity prevents a plaintiff from obtaining any relief against judges and judicial officials for decisions made in their judicial capacity, such as those challenged here.   See Carruba v. Moskowitz, 274 Conn. 533, 540–41, 877 A.2d 733 (2005).

With regard to the plaintiff's attempt to seek money damages from state defendants in their official capacities, the doctrine of sovereign immunity bars all relief given the absence of a statutory waiver or permission from the claims commissioner.   See Columbia Air Services v. Dept. of Transportation, 293 Conn. 342, 351, 977 A.2d 636 (2009).   Sovereign immunity also prevents the plaintiff from obtaining any injunctive and declaratory relief from the state defendants because the plaintiff has not made any “substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights [or] ․ a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority.”  Id., 349.   Indeed, the Appellate Court has recently concluded that § 52–190a does not violate the open courts provision of our state constitution and a superior court has held that the statute does not violate the separation of powers doctrine.   See Lohnes v. Hospital of Saint Raphael, 132 Conn.App. 68, 80–81, 31 A.3d 810 (2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012);  Torres v. Carrese, Superior Court, judicial district of Fairfield, Docket No. CV06–5011368 (March 14, 2011, Levin, J.).

CMIC asserts in its motion to dismiss that the plaintiff's mandamus allegations do not identify any duty “the performance of which is mandatory and not discretionary” or establish that the plaintiff has a “clear legal right to have the duty performed.”  (Internal quotation marks omitted.)  Traylor v. State, supra, 128 Conn.App. 185.   The court agrees because it appears that the plaintiff claims that CMIC failed to disclose records that it had no statutory obligation to disclose to the plaintiff.   Accordingly, the court grants CMIC's motion to dismiss.   See Traylor v. State, supra, 184–85 (affirming the granting of a motion to dismiss mandamus complaint based on the plaintiff's failure to claim that there was no other specific adequate remedy).

Finally, as mentioned, some ten months before filing the present action, the plaintiff filed a virtually identical suit in state court.   Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. KNL CV11–5014139S.   The defendants removed this case to federal court, where it currently remains pending.   Traylor v. Awwa, 3:11–CV–00132 (AWT) (D.Conn.) The prior pending action doctrine, which is appropriately raised on a motion to dismiss, bars such duplicative litigation.   See Bayer v. Showmotion, 292 Conn. 381, 395–96, 973 A.2d 1229 (2009);  Gaudio v. Gaudio, 23 Conn.App. 287, 294, 580 A.2d 212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990).   Accordingly, for all these reasons, the court grants the motions to dismiss of both the state and the private defendants.⁴

IV

The court grants the motions to dismiss.

It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. Section 52–190a provides:  “a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.   The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.   To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52–184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.   Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.   The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.   The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion.   In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.   If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee.   The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate.“(b) Upon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section.   This period shall be in addition to other tolling periods.“(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”.  FN1. Section 52–190a provides:  “a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.   The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.   To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52–184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.   Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate.   The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.   The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion.   In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.   If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee.   The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate.“(b) Upon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section.   This period shall be in addition to other tolling periods.“(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”

FN2. CMIC alleges that the plaintiff also unsuccessfully filed suit in 2004 against town of Waterford officials for ignoring concerns regarding his wife's suicidal tendencies.   The court could not confirm the existence of this suit.   In any event, the plaintiff's litigious fervor is perhaps understandable, but it has clearly reached the point of becoming unnecessarily costly, wasteful, and fruitless.   The state defendants do not seek an injunction against the plaintiff from filing further lawsuits, but such a request may become appropriate if the plaintiff does not refrain from filing suit against government officials and entities with immunities.   See Adgers v. Keller, Superior Court, judicial district of New London, Docket No. CV05–4004154 (February 21, 2006, Jones, J.)..  FN2. CMIC alleges that the plaintiff also unsuccessfully filed suit in 2004 against town of Waterford officials for ignoring concerns regarding his wife's suicidal tendencies.   The court could not confirm the existence of this suit.   In any event, the plaintiff's litigious fervor is perhaps understandable, but it has clearly reached the point of becoming unnecessarily costly, wasteful, and fruitless.   The state defendants do not seek an injunction against the plaintiff from filing further lawsuits, but such a request may become appropriate if the plaintiff does not refrain from filing suit against government officials and entities with immunities.   See Adgers v. Keller, Superior Court, judicial district of New London, Docket No. CV05–4004154 (February 21, 2006, Jones, J.).

FN3. In view of the fact that the proposed August 2012 complaint does not appear to avoid the defects of the December 2011 complaint, as discussed herein, it is likely that the court would reach the same result even if it considered the August 2012 complaint as operative..  FN3. In view of the fact that the proposed August 2012 complaint does not appear to avoid the defects of the December 2011 complaint, as discussed herein, it is likely that the court would reach the same result even if it considered the August 2012 complaint as operative.

FN4. In view of the conclusions reached here, the court does not reach the other grounds for dismissal raised by the parties..  FN4. In view of the conclusions reached here, the court does not reach the other grounds for dismissal raised by the parties.

Schuman, Carl J., J.