Larry Mason et al. v. John Barbieri et al. (2013)

MEMORANDUM OF DECISION ON MOTION TO DISMISS (# 135)

I. INTRODUCTION

This matter came before the court on the defendants' John Barbieri, Dominic Jannetty, Brian Hobart, Michael Brown and Raymond Brown's motion to dismiss.¹  All the defendants argue that they are entitled to a dismissal of the action because the plaintiffs lack standing and, in the alternative, the state marshal defendants are entitled to sovereign immunity.

II. BACKGROUND

The plaintiffs in this matter have filed a four-count complaint against seven state marshals and two civilians who assisted the marshals in capias arrest sweeps in the three years prior to the commencement of this action in November 2008.   The plaintiffs are subjects of these sweeps and claim that the state marshals brought along these civilian defendants to participate and aid in the sweeps despite the civilians lacking “any special expertise or knowledge making their participate essential or necessary.”   Complaint, ¶ 16.   In count one, the plaintiffs allege that all defendants violated their constitutional right to be free from unauthorized arrest and unreasonable search and seizure.  Id., ¶ 98.   In count two, they allege fraudulent misrepresentation by all defendants.  Id., ¶¶ 102–03.   In count three, they allege violation of General Statutes § 6–32 by the state marshal defendants.  Id., ¶ 108.   In count four, they allege that the marshal defendants, through their negligent service of process, violated General Statutes § 6–29 et seq.  Id., ¶ 113.

III. PROCEDURAL HISTORY

As stated above, this action was originally commenced against seven state marshals and two civilian assistants.   The seven state marshals are as follows:  John Barbieri;  Brian Hobart;  Dominic Jannetty;  John Gallup;  Bruce Kaz;  Mark Perisi and Luis Menendez.   On April 23, 2009, defendants Gallup, Kaz, Pesiri and Menendez filed a motion to dismiss arguing lack of standing and sovereign immunity.   The issue was fully briefed and then argued before the court (Sheedy, J.) on March 1, 2010.   At the hearing, the court denied the motion to dismiss on the lack of standing claim, finding that the plaintiffs were aggrieved and thus had standing to bring suit.   See memorandum of decision, 4/14/10, p. 2 (Sheedy, J.).   Subsequently, the court issued a memorandum of decision on the only remaining issue, sovereign immunity, and found that the action was barred by the doctrine as the defendants were sued in their official capacity and thus entitled to immunity.   The remaining defendants then filed the current motion to dismiss arguing that the court lacks subject matter jurisdiction because the plaintiffs lack standing and also the remaining marshal defendants are entitled to sovereign immunity.   The remaining defendants also argue that, under the law of the case doctrine, the action should be dismissed because the court has already properly decided that sovereign immunity applies and the marshal defendants are entitled to the same immunity as the first set of marshal defendants.

IV. DISCUSSION

As will be demonstrated below, the law of the case doctrine has application to the issues before this court.   Therefore, this court will reference the court's decision on the earlier motion to dismiss as applicable.   The law of the case doctrine “expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power ․ Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.”  (Citations omitted;  internal quotation marks omitted.)  Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).

The plaintiffs here are, in essence, asking this court to reconsider the decision of Judge Sheedy on the earlier motion to dismiss.   The current motion to dismiss raises almost identical grounds for dismissal as those raised in the first motion, namely lack of standing and sovereign immunity.   The plaintiffs' objection to said motion is also raises the same objections they filed to the first motion.   In addition, the plaintiffs here argue that they have since filed a request to amend the complaint (# 144) which adds additional counts and also clarifies the allegations against the defendants that cure the defects that the previous court identified, and such amendment is permissible because it relates back to the original complaint since it adds no new material facts.   The defendants have objected to said request to amend (# 148) arguing that the request cannot be considered while the motion to dismiss is pending.

“Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance 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 ․ The point has been frequently made.”  (Citations omitted;  internal quotation marks omitted.)  F.D.I.C. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996).   The defendants are correct that the court must first resolve the pending motion to dismiss before considering the plaintiffs' request to amend.   Therefore, for purposes of this ruling, the court shall refer only to the allegations made in the original complaint and the attendant arguments made by plaintiffs related to said complaint.   Although the defendants have raised the lack of standing as a basis for dismissal, neither side is disputing the court's earlier holding with respect to that issue in its first decision.   Thus, this court will not revisit an issue that has been correctly decided and is not challenged here.

The plaintiffs raise two arguments in support of their opposition to dismissal on the basis of sovereign immunity.   First, the plaintiffs argue that the court (Sheedy, J.) had incorrectly applied the Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975), test when it decided that the marshal defendants were public officials and thus entitled to sovereign immunity.   The plaintiffs, however, raise no new facts or law in support of their argument.   Rather, they rely on the same arguments here as those made in their opposition to the earlier motion to dismiss.   For example, they once, again, raise the argument that, pursuant to General Statutes § 6–38a(a), a state marshal is recognized as an independent contractor and, pursuant to General Statutes § 6–30(a), they are required to carry separate personal liability insurance.   Both of these arguments were addressed by the court in its earlier ruling.   See memorandum of decision, 4/14/10, p. 7, 9. The only additional argument raised by the plaintiffs here is that state marshals may resign for any reason and serve at their pleasure.   The plaintiffs make reference to Page v. State, Superior Court, judicial district of Hartford, Docket No. CV 05–4008109 (March 27, 2006), but it is unclear to the court the significance of the citation.   More to the point, any individual, be they a public official or not, may resign their position for any reason.   The plaintiffs have failed to address why or how this fact would make a difference in the court's analysis of whether state marshals are public officials pursuant to Spring.

The second argument raised by the plaintiffs is that the court wrongly decided that the marshal defendants were entitled to sovereign immunity because they claim that the marshal defendants acted outside the scope of their statutory authority in permitting the civilian defendants to participate in the capias sweeps.   Such allegations, the plaintiffs argue, take the claim outside the realm of sovereign immunity because such claims are against the marshal defendants individually rather than in their official capacity.

This very argument, again, has already been addressed by the court (Sheedy, J.) in its memorandum of decision on the earlier motion to dismiss.   In particular, the court's discussion of the applicability of Martin v. Brady, 261 Conn. 372, 802 A.2d 814 (2002), to the case at hand addressed the very issue being raised here again.

Specifically, the court (Sheedy, J.) held as follows:

This court finds instructive Martin v. Brady, 261 Conn. 372 (2002), which had as its centerpiece the conduct of four state police officers who, pursuant to an extradition arrest warrant from Florida, attempted to locate and arrest the plaintiff in Connecticut where he owned a home.   The plaintiff claimed his home was searched by defendants twice—once without a warrant and, again, pursuant to a fraudulent warrant.   In the court of these searches, it is alleged the police officers struck and pushed the plaintiff to the floor after he had submitted to the arrest, smashed windows, and broke down doors.   The complaint specifically alleged that at all times each of the defendants acted under color of law (as is asserted in the instant case) and also that each defendant was being sued in his individual capacity (as in the instant case).   The plaintiff in Martin claimed the officers' actions constituted a deprivation of his constitutional right to be free from unreasonable searches and seizures of his person and property and a denial of procedural and substantive due process.   The defendants moved to dismiss on the ground the court was without subject matter jurisdiction because the plaintiff's claims were barred by both sovereign immunity and by the plaintiff's failure to exhaust administrative remedies.   The trial court, Rogers, J., granted the motion and rendered judgment accordingly.   The plaintiff appealed on two grounds:  1) that defendants were not entitled to invoke the doctrine of sovereign immunity because they had been sued in their individual capacities from egregious misconduct;  and 2) that the complaint did not fall within the purview of the claims commissioner because, under prior decisional law, the plaintiff was pursuing an independent constitutional claim which purportedly was not embraced by Connecticut General Statute § 4–142 (claims excepted from the claims commissioner's consideration).  64 Conn.App. 433, 436 (2001).   The Appellate Court affirmed in concluding the plaintiff had not demonstrated ‘the defendants' behavior ․ was sufficiently outside the normal scope of their statutory authority as police officers so as to avoid the doctrine of sovereign immunity.’  64 Conn.App., at 442.   Our Supreme Court affirmed, finding the complaint was barred by § 4–164 (‘No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment.’).   The Court specifically found the defendants' conduct was within the scope of their employment and that the allegations were insufficient to allege wantonness, recklessness or malice.  261 Conn. 372, 377 (2002).   It noted the plaintiff's arrest was ‘sought for legitimate government interests ․ pursuant to a warrant issued by the State of Florida.’  Id. at 379 ․ This court cannot find the conduct of the defendant marshals rose to the level of the police officers' conduct in Martin, supra, and, since this court has noted the marshals were, as per the complaint's allegations, sued in their official capacity, sovereign immunity is in play.

With respect to the two civilian defendants, the same lack of standing argument is made as a basis for dismissing the action against them.   For the reasons stated above, the court finds that the plaintiffs have standing to bring their claims against the civilian defendants.   The second argument raised as a basis for dismissing the action against the civilian defendants is that the participation of a civilian in a duly authorized arrest does not violate the state constitution.   This argument, however, is not a proper basis to challenge the court's subject matter jurisdiction.   As the Connecticut Supreme Court has recognized in Binette v. Sabo, 244 Conn. 23, 25–26, 710 A.2d 688 (1998), there does exist a private cause of action for money damages stemming from alleged violations of article first, §§ 7 and 9, of our state constitution.   Rather, such an argument goes to the legal sufficiency of the claim and is properly raised by a motion to strike.   As such, the motion to dismiss counts one and two as they apply to the civilian defendants is denied.

V. CONCLUSION

This court agrees with the analysis of Judge Sheedy in the memorandum of decision on the earlier motion to dismiss.   There are no materially new or overriding circumstances here that would warrant this court to come to a different conclusion.   For all of the above stated reasons, the motion to dismiss is granted as to the marshal defendants but denied as to the civilian defendants.

Sheridan, J.

FOOTNOTES

FN1. Defendants John Barbieri, Dominic Jannetty and Brian Hobart are state marshals and will be referred to as the “marshal defendants.”   The defendants Michael Brown and Raymond Brown are not state marshals and thus will be referred to as the “civilian defendants.”.  FN1. Defendants John Barbieri, Dominic Jannetty and Brian Hobart are state marshals and will be referred to as the “marshal defendants.”   The defendants Michael Brown and Raymond Brown are not state marshals and thus will be referred to as the “civilian defendants.”

Sheridan, David M., J.