Charles Ngetich v. John Miller et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS, # 102

I

STATEMENT OF PROCEEDINGS

On August 29, 2012, the plaintiff, Charles Ngetich, filed a two-count complaint against the defendants, John Miller and Laura Tordenti.   The action was brought pursuant to 42 U.S.C. § 1981, as enforced through 42 U.S.C. § 1983.   The plaintiff claims the defendants violated his contract rights and subjected him to retaliation because of his having complained of racially discriminatory treatment by Central Connecticut State University (University) personnel.

On October 10, 2012, the defendants filed a motion to dismiss, along with an accompanying memorandum.   In addition, in support of the motion, the defendants filed an affidavit of John Miller, an affidavit of Laura Tordenti, and multiple letters and e-mails.   On December 14, 2012, the plaintiff filed a memorandum in opposition to the motion to dismiss.   The plaintiff attached an affidavit of Rebecca L. Johnson, and an affidavit of Charles Ngetich.   On December 26, 2012, the defendants filed a reply memorandum in opposition to the motion to dismiss.   The matter was heard on October 31, 2013.   At the request of the court, on November 14, 2013, the defendants filed a memorandum on the issue of allowing the plaintiff to amend while the motion to dismiss on subject matter jurisdiction is pending, and the plaintiff filed a supplemental brief addressing the same issue.

II

THE COMPLAINT

The complaint alleges the following common facts.   The plaintiff is a black, African male, and a native of Kenya.   On May 12, 2005, the plaintiff was awarded a full athletic scholarship for track and field/cross country at the University.   The plaintiff's scholarship provided for the full payment of all tuition, costs, fees, room and board, books and health insurance.   The plaintiff was eligible for renewal of said scholarship at the end of each academic year.

There were multiple acts of discrimination and/or abuse by the plaintiff's track coach, Kawecki.   Most notably, in the fall 2005 semester, the plaintiff was informed by Kawecki that he had seen a television documentary regarding an ethnic group in Kenya that drank blood as a tribal ritual.   Two weeks later, during a track team meeting, Kawecki produced a cup of blood, and demanded that the plaintiff drink it in the presence of about ten team members.   In addition to this incident, the plaintiff was repeatedly mocked by his teammates and Kawecki, who usually focused on the plaintiff's presumed poverty, including the inability to afford food.

The plaintiff became depressed from the constant ridicule of him by Kawecki, and, because of his depression, his athletic and academic performance began to decline.   By fall semester of 2007, the athletic department removed the plaintiff from the track and field country teams.   Around that time, the plaintiff's scholarship was reduced, and was eventually reduced to zero percent by the end of the spring semester of 2008.   In January 2008, the plaintiff sought counseling for his depression and suicidal tendencies, and, in March 2009, the plaintiff made known publicly to the University for the first time the abuse he had experienced by making a report to the University's “Office of Diversity and Equity.”

The University's president, Miller, and vice president, Tordenti, caused an investigation to be made into the complaints of racial discrimination that had been made by the plaintiff.   Due to the investigation, the defendants had reason to know that the University's personnel had subjected the plaintiff to racially discriminatory conduct resulting in his inability to perform under his contract with the University.   On June 26, 2009, the plaintiff sent a written letter to Miller, seeking redress regarding his treatment and the breach of his contract with the University.   The defendants refused to acknowledge any wrongdoing on the part of the University or Kawecki, and refused to take action to redress the racially discriminatory conduct of University personnel that they knew had resulted in the plaintiff's inability to perform under the contract.   By refusing to take such action, the defendants condoned, ratified, and adopted said racially discriminatory behavior.   On September 1, 2009, the plaintiff filed a civil action in the Superior Court, alleging various claims arising out the discriminatory treatment.   On September 4, 2009, in retaliation for the plaintiff's filing of the lawsuit in the Superior Court complaining of racially discriminatory conduct, and for having previously opposed the discriminatory conduct toward him, the defendants caused the plaintiff's registration as a student to be withdrawn.

In addition to these facts, count one alleges racial retaliation against Miller.   Count one further alleges that Miller has at all material times been the president of the University.   In addition, count one alleges that Miller's conduct had deprived the plaintiff of equal protection of the laws enjoyed by white citizens, and that Miller acted with malice toward the plaintiff and with conscious disregard of the plaintiff's constitutional rights.   Count two alleges racial retaliation against Tordenti.   Count two also states that Tordenti has at all relevant times been the vice president of the University.   Furthermore, count two alleges that Tordenti's conduct had deprived the plaintiff of equal protection of the laws enjoyed by white citizens, and that Tordenti acted with malice toward the plaintiff and with conscious disregard of the plaintiff's constitutional rights.   For his emotional distress, humiliation, embarrassment, and mental anguish, the plaintiff asks for compensatory damages and attorneys fees and costs.

III

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.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).  “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.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.  “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).   Finally, claims of qualified immunity under federal law are appropriately raised in a motion to dismiss.   See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (“defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery”);  Traylor v. Gerratana, AC No. 35242, 2014 WL 839165 (Conn.App. March 11, 2014) (qualified immunity raised in motion to dismiss § 1983 claim);  Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV–07–4027999–S (February 11, 2008, Bellis, J.) (same);  Bradley v. Central Naugatuck Valley Help, Inc., Superior Court, judicial district of Waterbury, Docket No. CV–95–0126436–S (February 20, 1997, Vertefeuille, J.) (19 Conn. L. Rptr. 34) (same).

“In determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  State v. Mann, 271 Conn. 300, 335, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S.Ct. 1711, 161 L.Ed.2d 527 (2005).

“Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10–31(a)(1) may encounter different situations, depending on the status of the record in the case ․ [L]ack of subject matter jurisdiction may be found in any one of three instances:  (1) the complaint alone;  (2) the complaint supplemented by undisputed facts evidenced in the record;  or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts ․ Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.”   (Citation omitted;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 650–51, 974 A.2d 669 (2009).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.)   Conboy v. State, supra, 292 Conn. 651.  “In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․ the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 651–52.  “[A]ffidavits are insufficient to determine the facts unless ․ they disclose that no genuine issue as to a material fact exists.”  (Internal quotation marks omitted.)   Id., 651 n.14.

The defendants move to dismiss the plaintiff's complaint on the ground of lack of subject matter jurisdiction, because of immunity or impossibility.   As to immunity, the defendants first argue that they, as state employees, are immune from suit for any conduct in their official capacity, under the doctrine of sovereign immunity.   The defendants further argue that the action against them is only in their official capacity because there are not sufficient allegations in the complaint to subject the defendants to suit in their individual capacity.

The defendants also contend that, to the extent that they are sued in their individual capacities, they are still immune from the plaintiff's suit.   Firstly, the defendants argue that, as state employees, they are entitled to immunity from suit, pursuant to General Statutes § 4–165.   The defendants contend that the plaintiff has not alleged facts to establish that the defendants' conduct is not protected by the statute because it was wanton, reckless, willful, intentional or malicious.   Secondly, the defendants argue that, to the extent that they are sued in their individual capacity, they are protected by qualified immunity.   The defendants contend that the plaintiff has not met his burden for alleging facts sufficient to establish that rights guaranteed to him by the constitution were clearly violated or that the defendants should have reasonably known of these violations.

Finally, the defendants argue that the impossibility of a § 1983 violation results in the court's lack of subject matter jurisdiction over this claim.   More specifically, the defendants contend that there is no allegation in the complaint that the defendants interfered with the plaintiff's ability to enforce established contract rights by impairing his access to the legal system.   The defendants note that the plaintiff instead alleges he filed his suit and that the defendants then retaliated by withdrawing his registration.

In response, the plaintiff does not argue that the defendants are not immune from suit in their official capacity, rather, the plaintiff contends that the defendants are not immune from suit in their individual capacity because he has alleged facts to establish that the defendants' conduct was wanton, reckless, or malicious.   Furthermore, the plaintiff argues that the defendants' claim of impossibility ignores the relevant case law regarding the violation of the rights of students to be free of racial discrimination.   The plaintiff argues that it is an objectively reasonable matter that he had a right to be free of racial discrimination in the making and enforcing of his contract with the University.   The plaintiff contends that the defendants cannot reasonably claim they lacked awareness of these well-established rights.   Moreover, the plaintiff argues that the defendants misunderstood the plaintiff's pleadings, and that the plaintiff is alleging that he is entitled to make and enforce contracts, such as the contract that he had as a student at the University, without racial discrimination.   Finally, the plaintiff also argues that he should be permitted to amend his pleadings in the event that the court finds any ambiguity in the facts alleged.

IV

PERMISSION TO AMEND PLEADINGS

The preliminary question before the court is whether it has the authority to permit an amendment to the pleadings during the pendency of a motion to dismiss for lack of subject matter jurisdiction, where the amended complaint was not filed as of right.  “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] courts lacks discretion to consider the merits of a case over which it is without jurisdiction ․ The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings ․” (Internal quotation marks omitted.)  Keller v. Beckenstein, 305 Conn. 523, 531–32, 46 A.3d 102 (2012).  “Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction.”  (Internal quotation marks omitted.)   Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).   Thus, as a general rule, “it is improper for the court to consider a motion to amend prior to ruling on a motion to dismiss for lack of subject matter jurisdiction.”   Simmons v. CVS Pharmacy, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–08–5021084–S (June 17, 2009, Hiller, J.);   see also Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996).

There are certain instances when an amended complaint may be considered even if a motion to dismiss was previously filed.   Most notably, a complaint may be amended before the court addresses a motion to dismiss when the plaintiff seeks to amend the complaint, pursuant to Practice Book § 10–59, within thirty days of the return date.   See Dauti v. Stop & Shop Supermarket Co., 90 Conn.App. 626, 640, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005).   The provisions of Practice Book § 10–59 do not apply to the present case because the original complaint presented a return date of September 4, 2012, and the thirty-day amendment period has passed.

Nevertheless, the plaintiff contends that the court has authority to permit an amendment to the pleadings during the pendency of a motion to dismiss.   In his supplemental brief in opposition to the motion to dismiss, the plaintiff contends that the facts alleged in the complaint are enough to establish subject matter jurisdiction, and that he requests to amend the complaint “only to the extent that the court finds some ambiguity in the factual statements.”   The plaintiff argues that, under such circumstances, the court has discretion to permit the amendment.   The plaintiff, however, cites to no authority that directly supports his argument.   Instead, the plaintiff contends that there are exceptions where the courts sometimes permit the amendment of pleadings while a motion to dismiss is pending.

First, the plaintiff points to General Statutes § 52–109, which, even where subject matter jurisdiction is involved, “is meant to give the trial court's jurisdiction for the limited purpose of determining if the action should be saved from dismissal by the substitution of plaintiffs.”  (Internal quotation marks omitted.)  Rana v. Terdjanian, 136 Conn.App. 99, 111, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012).   This statute is not applicable to the present case and is merely a narrow exception.

Second, the plaintiff argues that there is also a division in the Superior Court as to whether amendment of a defective pleading in medical malpractice cases is an appropriate response to a pending motion to dismiss, pursuant to General Statutes § 52–190a.   In the present case, however, a motion to dismiss for subject matter jurisdiction is involved, which is distinguishable from a motion to dismiss pursuant to § 52–190a.   A motion to dismiss under § 52–190a is not controlled by subject matter jurisdiction analysis.   Ward v. Ramsey, Superior Court, judicial district of New Haven, Docket No. CV–09–5028840–S (April 12, 2010, Corradino, J.).

Finally, the plaintiff notes that federal courts have permitted the opportunity to amend a complaint even where there has been a determination of some infirmity in the pleadings.   The plaintiff, however, cites to cases that involve the federal motion to dismiss, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure.   Such a motion is similar to the motion to strike under the Practice Book in Connecticut.   Lotto v. Hamden Board of Education, Superior Court, judicial district of New Haven, Docket No. CV–05–4010436–S (February 21, 2006, Silbert, J.) (40 Conn. L. Rptr. 713, 713).   As such, the cases cited by the plaintiff are not applicable to the motion to dismiss in the present case.

Because there is no authority to suggest that any of the limited exceptions to the general rule apply to the present case, the plaintiff will not be allowed to amend his pleadings, and the court will address the motion to dismiss in the context of the allegations of the pending complaint.

IV

SOVEREIGN IMMUNITY

The plaintiff has brought this action pursuant to 42 U.S.C. § 1981 ¹ as enforced through § 1983.²  Title 42 of the United States Code, § 1983, provides in relevant part:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ․” “The United States Supreme Court has repeatedly expressed that [t]o state a claim under [42 U.S.C.] § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.”  (Internal quotation marks omitted.)  Tuchman v. State, 89 Conn.App. 745, 762, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).  “The United States Supreme Court has asserted that [f]ederal law is enforceable in state courts ․ because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature ․ [Thus,] [s]tate courts have concurrent jurisdiction over claims brought under § 1983 ․ Nevertheless, [c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 ․ cannot be immunized by state law.   A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise;  and the supremacy clause of the Constitution insures that the proper construction may be enforced ․ The elements of, and the defenses to, a federal cause of action are defined by federal law ․ We have embraced these principles in our decisions as well.”   (Citations omitted;  internal quotation marks omitted.)  Sullins v. Rodriguez, 281 Conn. 128, 133–34, 913 A.2d 415 (2007).

“[T]he Supreme Court has taken the view that Congress did not intend to defeat traditional notions of sovereign immunity in enacting § 1983.” ³  Id., 140.  “[S]tate officials sued for money damages in their official capacities are not ‘persons' within the meaning of § 1983 because the action against them is one against the office and, thus, no different from an action against the state itself.”  Id., 141.  “State officials are, however, ‘persons' within the meaning of § 1983 and may be held personally liable when sued as individuals for actions taken in their official capacities and, thus, under color of law.”  Id.

The “[distinction] between official and individual capacity suits ․ hinges upon from whom the plaintiff seeks a remedy.   Official capacity suits seek, in all aspects other than the party named as defendant, to impose liability on the government.   Personal capacity suits, in contrast, aim to impose liability directly on officials for actions taken under color of state law.”  Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 87 (2nd Cir.1991).  “To determine whether a suit is against a defendant in his or her official or individual capacity federal courts may look to how the complaint is drafted, the defenses raised and other factors.   See, e.g., Shabazz v. Coughlin, 852 F.2d 697, 700 (2d Cir.1988) (‘Notwithstanding the complaint's ambiguous language and the defendants' numerous affirmative defenses, Shabazz's request for punitive and compensatory damages, coupled with the defendants' summary judgment motion on qualified immunity but not Eleventh Amendment grounds, suggests that the parties believed that this action is a personal capacity suit’).”  Wright v. DeSantis, Superior Court, judicial district of New Haven, Docket No. CV–09–032806–S (June 15, 2011, Wilson, J.).  “[T]he vast majority of [the federal circuit courts] apply the ‘course of proceedings' test to determine whether suit has been brought against a state official as an official or as an individual.” ⁴  Moore v. Harriman, 272 F.3d 769, 773 (6th Cir.2001), cert. denied sub nom.  McBroom v. Moore, 536 U.S. 922, 122 S.Ct. 2586, 153 L.Ed.2d 776 (2002).  “In place of express pleading, we look to the totality of the complaint as well as the course of proceedings to determine whether the defendants were provided with sufficient notice of potential exposure to personal liability.”  Yorktown Medical Laboratory, Inc. v. Perales, supra, 948 F.2d 88–89 (2nd Cir.1991).   One of the factors the court may consider is whether “the complaint seeks punitive damages, which are not available against the state.”  Rodriguez v. Phillips, 66 F.3d 470, 482 (2nd Cir.1995).   In the end, “[i]n order to determine whether a state official is sued in his official or personal capacity, reference should be made to the ‘capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.’  Hafer v. Melo, 502 U.S. 21, [26,] 112 S.Ct. 358, 362, 116 L.Ed.2d 301 (1991).”   Kroll v. Steere, Superior Court, judicial district of New London, Docket No. CV–99–549783–S (August 13, 1999, Mihalakos, J.).

The defendants' memorandum in support of the motion to dismiss states:  “It should be noted there are no allegations in the complaint that defendants Miller and Tordenti are sued in their individual capacities.   Rather, there is only a cryptic ‘(I/O)’ in the case caption.   Defendants submit that such reference is not sufficient to subject Miller and Tordenti to suit in their individual capacities.”

In the present case, the summons directs service to the defendants' work address at the University, and not to their personal home addresses.⁵  Further, the allegations in the complaint focus on the defendants' conduct while performing their official duties, specifically failing to take action to redress the plaintiff's complaints of racial discrimination by the athletic coach and department, and causing the plaintiff's registration at the University to be withdrawn.   In addition, in count one, the plaintiff identified Miller as the president of the University “at all material times herein,” and in count two, the plaintiff identified Tordenti as the vice president of the University “at all material times herein.”   Furthermore, prior to explicitly stating that the defendants were president and vice president of the University at all material times, the complaint identified the parties by both name and title, as “CCSU [Central Connecticut State University] President John Miller” and “Vice President Laura Tordenti.”   Thus, the language in the complaint suggests that the plaintiff is bringing the present action against the defendants solely in their official capacities, but that language is not compelling because it focuses upon the capacity in which the defendants inflicted the alleged injury rather than in which they are sued.   See Hafer v. Melo, supra, 502 U.S. 26.

Other parts of the complaint suggest a different reading.   The heading parenthetically adds “I/O” next to each of the defendants' names.   The summons also uses the “I/O” legend.⁶  There, the defendants are identified as “Miller, John (I/O) Central Connecticut State University 1615 Stanley Street New Britain, CT 06050,” and “Tordenti, Laura (I/O) Central Connecticut State University 1615 Stanley Street New Britain, CT 06050.”   Although the “I/O” may stand for “individual and official capacities,” it cannot be considered an express allegation that the defendants are being sued in their individual capacities.   On the other hand, the return of service specifically states the defendants were each served in hand, in both their individual and official capacities.   The return of service states that the marshal “left a true and attested copy of the original writ, summons and complaint with and in the hands of each of the within named defendants John Miller, individual capacity;  John Miller, official capacity;  Laura Tordenti, individual capacity and Laura Tordenti, official capacity, in the said town of New Britain.”   The representations made by the marshal in the return of service are presumptively true;  Tax Collector v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003) (A marshal's “return is prima facie evidence of the facts stated therein”);  and provide the court with the basis for a reasonable inference that “I/O” used in the heading and body of the complaint refers to “Individual” and “Official.”   Finally, although the plaintiff did not claim “punitive damages” specifically, he seek attorneys fees and costs.⁷  In his memorandum, he does point to the allegations that the defendants actions were wanton and wilful and malicious, arguing that such allegations overcome the statutory immunity granted individuals under General Statutes § 4–165.⁸

Finally, the court makes note from the course of the proceedings beginning with plaintiff's first filing suit against the University in 2009, that the plaintiff has been unsuccessful in avoiding dismissal of his claims, in part, because of sovereign immunity.   It is not an unreasonable inference, therefore, to conclude that the plaintiff now seeks to avoid dismissal on the grounds of sovereign immunity by bringing this action against these defendants individually.

Based on the totality of pleadings and other relevant factors, and on the dictate that every presumption favoring jurisdiction should be indulged, the court concludes the defendants were sued not only in their official capacities but also in their individual capacities.

Insofar as the present action against the defendants has been brought against them is in their official capacities, they are not “persons” within the meaning of § 1983;  Sullins v. Rodriguez, supra, 281 Conn. 141;  and the motion to dismiss those claims is granted.

Insofar as the present action against the defendants has been brought against them in their individual capacities, they may be held personally liable for money damages unless, as argued by the defendants, the action is dismissed on the grounds of qualified immunity.

1) Qualified Immunity

“[A] claim for qualified immunity from liability for damages under [42 U.S.C.] § 1983 raises a question of federal law ․ and not state law.   Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials ․ Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”   (Citation omitted;  internal quotation marks omitted.)  Morgan v. Bubar, 115 Conn.App. 603, 625, 975 A.2d 59 (2009).   Qualified immunity reflects the “concern that for the public benefit, public officials be able to perform their duties unflinchingly and without constant dread of retaliation.”  Amore v. Novarro, 624 F.3d 522, 530 (2d Cir.2010).   The standard “is forgiving and protects all but the plainly incompetent or those who knowingly violate the law.”  (Internal quotation marks omitted.)  Id. “[Qualified immunity] is only available to those defendants sued in their personal capacities.   See Moore v. Wynnewood, 57 F.3d 924, 929 n.4 (10th Cir.1995) (‘the defense of qualified immunity only applies to [defendants] sued in [their] individual capacit[ies]’).”  Walker v. Board of Trustees, 76 F.Sup.2d 1105, 1109 (Colo.1999).

“In Saucier [v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ], this Court mandated a two-step sequence for resolving government officials' qualified immunity claims.   First, a court must decide whether the facts that a plaintiff has alleged ․ or shown ․ make out a violation of a constitutional right ․ Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly established’ at the time of the defendant's alleged misconduct.”  (Citations omitted.)  Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009);  see also Traylor v. Gerratana, supra, Conn.App.2014 WL 839165.   In reconsidering this analysis, the court in Pearson v. Callahan, supra, 555 U.S. 223, concluded:  “[W]hile the sequence set forth ․ is often appropriate, it should no longer be regarded as mandatory.   The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”  Id., 236.   In interpreting the two-step qualified immunity sequence, the Connecticut Supreme Court stated:  “A [governmental] defendant will be entitled to qualified immunity if either (1) his actions did not violate clearly established law or (2) it was objectively reasonable for him to believe that his actions did not violate clearly established law.”   (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 217–18, 9 A.3d 347 (2010).   Thus, the defendants in the present case will be entitled to qualified immunity if either (1) their actions did not violate clearly established law or (2) it was objectively reasonable for them to believe that their actions did not violate clearly established law.

“In determining whether a particular right was clearly established at the time an official acted, courts typically consider (1) whether the right in question was defined with reasonable specificity;  (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question;  and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.”   (Internal quotation marks omitted.)  Bradway v. Gonzales, 26 F.3d 313, 318 (2d Cir.1994).   Importantly, when faced with a qualified immunity defense, a court should consider the specific scope and nature of a defendant's qualified immunity claim.   That is, a determination of whether the right at issue was clearly established must be undertaken in light of the specific context of the case, not as a broad general proposition.  Saucier v. Katz, supra, 533 U.S. 201;  see also Zieper v. Metzinger, 474 F.3d 60, 67–68 (2d Cir.2007) (noting that the qualified immunity analysis must be undertaken in a “particularized” sense).  “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”  (Internal quotation marks omitted.)  Distiso v. Wolcott, 352 Fed.Appx. 478, 481 (2009), citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

Although the entire present action is brought pursuant to § 1981, as enforced through § 1983, the plaintiff appears to be raising the following specific claims.   Firstly, the plaintiff has a right to be free of racial discrimination in the making and enforcing of his contract with the University.   Secondly, the defendants retaliated against him by failing to take appropriate action to redress the racial discrimination that had been inflicted at the hands of University personnel and thereby condoned, ratified, and adopted the racially discriminatory treatment.   Finally, the defendants retaliated against him by withdrawing his registration as a student of the University because he had filed an action in Superior Court complaining of racially discriminatory conduct and for having previously opposed the discriminatory conduct toward him.⁹

In arguing that the defendants should have and indeed did know that his rights were violated, the plaintiff applies an impermissibly broad interpretation of the specific “clearly established right.”   As discussed, the qualified immunity analysis must be undertaken in a “particularized” sense, and a determination of whether the right at issue was clearly established must be undertaken in light of the specific context of the case, not as a broad proposition.

a) Plaintiff's right to be free of racial discrimination in the making and enforcing of his athletic scholarship contract with the University 10

As mentioned, in this § 1981/1983 action, the plaintiff alleges that the defendants should have known that he has a right to be free of racial discrimination in the making and enforcing of his contract with the University, and that the defendants, nevertheless, deprived the plaintiff of his right.   In the present case, the plaintiff alleges in his complaint that his scholarship constituted an express written contract between him and the University.   Based upon the allegations in the complaint, the contract in question was a full athletic scholarship that was made in exchange for the plaintiff's agreement to perform as an athlete for the University on the men's track and field/cross country team.   The plaintiff was eligible for renewal of the scholarship at the end of each academic year.

In the present case, it is uncontested that the defendants did not know about the discriminatory actions taken by the coach and other students, until after the plaintiff had been removed from the track team, and had his scholarship reduced and eventually eliminated.   Furthermore, the defendants were not even involved in either the removal of the plaintiff from the track team, or in the reduction and eventual elimination of the plaintiff's scholarship.

The only issue is whether the subsequent response by the defendants, as high ranking officials in the University, to the plaintiff's March 2009 report and other subsequent complaints, was such that a reasonable official would know that he was violating a clearly established right.   Under § 1983, an individual may not be held liable “merely because he held a high position of authority, but can be held liable if he was personally involved in the alleged deprivation.”  (Internal quotation omitted.)  Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 127 (2d Cir.2004).   To show personal involvement, a plaintiff must produce evidence that:  “(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred ․ (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ․ by failing to act on information indicating that unconstitutional acts were occurring.”  (Emphasis added.)  Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995).  “Deliberate indifference to discrimination can be shown from a defendant's actions or inaction in light of known circumstances.”  Gant ex rel. Gant v. Wallingford Board of Education, 195 F.3d 134, 141 (1999).

In the present case, because there is no direct violation of the right to be free of racial discrimination in the making and enforcing of his contract by the defendants, the plaintiff must establish that there was, nonetheless, some other type of personal involvement by the defendants.   The plaintiff does not allege or argue that the defendants created a policy or custom under which unconstitutional practices occurred, or that the defendants were grossly negligent in supervising subordinates who engaged in wrongful conduct.   Thus, under the present facts, the plaintiff must show either that the defendants, after being informed of the violation through a report or appeal, failed to remedy the wrong, or that the defendants exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring.

Here, the plaintiff alleges that he made his complaints about the discriminatory treatment by his coach known to the defendants in March 2009, by filing a report with the University's office of diversity and equity.   The plaintiff further alleges that the defendants caused an investigation to be made into the complaints but failed to redress the racially discriminatory treatment that was found.   Moreover, on June 26, 2009, the plaintiff sent a written letter to Miller seeking redress regarding his treatment and the breach of his contract with the University.   Furthermore, before August 2009, Rebecca Johnson, the former Associate in Diversity and Equity, informed Tordenti that there was at least the appearance that the conduct of Kawecki toward the plaintiff was potentially discriminatory.  (Affidavit of Johnson.)   Thus, the plaintiff claims that the defendants refused to acknowledge any wrongdoing on the part of the University or Kawecki and refused to take action to redress the racial discrimination, despite knowing about said discrimination.

These allegations, taken together, do not show that the defendants should have known that their actions were violating a clearly established law.   Firstly, the plaintiff does not allege that there was any disparate treatment by the defendants.   Secondly, the undisputed facts show that the defendants' immediate response was reasonable under the known circumstances.   Namely, when the defendants learned about the alleged discriminatory conduct, they pursued an investigation into the plaintiff's related complaints.   Finally, the plaintiff does not identify what reasonable actions the defendants should have taken under the known circumstances, or even what actions the defendants were required or authorized to take pursuant to school policies.   In other words, the plaintiff does not provide information that would adequately identify the precise nature of the right that is allegedly being violated by these defendants.

Likewise, it is not clear what “redress” the plaintiff was seeking from the University at the time he sent a letter to defendant John Miller.   The plaintiff only makes vague references to the defendants' failure to redress the racially discriminatory conduct of University personnel that they knew had resulted in the plaintiff's inability to perform under the contract.

Finally, the undisputed submitted evidence shows that the defendants attempted to provide redress to the plaintiff's complaints through a settlement offer.   Specifically, the plaintiff recalls “a meeting with Laura Tordenti in an effort to resolve the complaints of racial discrimination that [the plaintiff] had against Kawecki at the university.   The university was well aware that [the plaintiff] had complained of discrimination and this is why they made a settlement offer to [the plaintiff] on or about August 11, 2009.”  (Affidavit of Charles Ngetich.)   The plaintiff also states that he was “told that if [he] did not accept the offer that was made by the university, they would cause [him] to be withdrawn from school registration.”  (Affidavit of Charles Ngetich.)   The defendants' discussions and attempts to reach a settlement agreement with the plaintiff fall short of deliberate indifference.   Moreover, the courts even encourage attempts to reach a settlement agreement.   See DiStiso v. Wolcott, Docket No. 3:05CV01910 (D.Conn. November 17, 2006) (“In addition to the fact that federal law encourages settlement agreements instead of protracted litigation, see In re Tamoxifen Citrate Antitrust Litigation, 429 F.3d 370, 386 (2d Cir.2005), neither [the defendant] Dr. Smyth's effort to negotiate a settlement with the DiStisos nor his alleged failure to transfer Nicholas when the DiStisos didn't agree to his terms can be found to constitute deliberate indifference to their complaints of racial harassment of Nicholas”).

In the end, the defendants did not violate a clearly established law to the extent that the defendants' alleged interference with the plaintiff's right to be free of racial discrimination in the making and enforcing of his athletic scholarship contract with the University is merely a failure to provide a satisfactory settlement offer.   Furthermore, the plaintiff does not provide sufficient information for the court to find that there was any other violation of clearly established law by the defendants, under the known circumstances.   Thus, based on the known facts, it was objectively reasonable for the defendants at the time of the challenged action to believe that their actions were lawful.

b. Retaliation Against the Plaintiff by Failing to Take Appropriate Action to Redress the Racial Discrimination That Had Been Inflicted at the Hands of University Personnel

In this § 1981/1983 action, the plaintiff alleges that the defendants retaliated against him through failing to take appropriate action to redress the racial discrimination that had been inflicted at the hands of University personnel.   For the reasons discussed in the prior subsection, it was objectively reasonable for the defendants, at the time of the challenged action, to believe that that they took proper actions to redress the alleged racial discrimination that had been inflicted at the hands of University personnel.   In particular, the defendants caused an investigation to be made, held meetings with the plaintiff and made a settlement offer.   Furthermore, the plaintiff does not allege what reasonable actions the defendants should have taken under the known circumstances.   For example, the plaintiff does not describe the actions that the defendants were required or even authorized to take pursuant to University policies.   Similarly, it is not clear what redress the plaintiff was seeking from the University at the time he sent the letter to defendant John Miller.   As such, the plaintiff does not sufficiently identify the precise nature of the right that is allegedly being violated.   Finally, the defendants did not violate a clearly established law to the extent that the defendants' alleged failure to provide adequate redress is merely a failure to provide a satisfactory settlement offer.

c. The Plaintiff's Withdrawn Registration As a Student of the University

In this § 1981/1983 action, the plaintiff alleges that the defendants caused the plaintiff's registration as a student of the University to be withdrawn in retaliation for his filing of another action in Superior Court complaining of racially discriminatory conduct, and for having previously opposed the discriminatory conduct toward him.   The plaintiff's claim is unpersuasive because it was objectively reasonable for the defendants to believe that they caused the plaintiff's registration to be withdrawn for a lawful and nondiscriminatory reason.   Pursuant to the University policy, the plaintiff's course enrollments were subject to cancellation when he failed to make payments for the fall 2009 semester and to clear any outstanding balances by August 31, 2009.  (Affidavit of Laura Tordenti;  Affidavit of John Miller;  Defendants' Exhibit 3;  Defendants' Exhibit 4/Plaintiff's Exhibit 1.) In fact, the undisputed evidence suggests that the defendants even made attempts to accommodate the plaintiff.   Specifically, pursuant to the University's policies, students who have outstanding bills with the University are unable to register for classes until debts are paid, and this is accomplished by placing a financial hold on the students' account.  (Affidavit of Laura Tordenti;  Affidavit of John Miller.)   Payment of tuition and fees was due in July 15, 2009, yet the defendants authorized the removal of the financial hold on the plaintiff's account even though the plaintiff had not paid the outstanding balance.  (Affidavit of Laura Tordenti;  Affidavit of John Miller;  Defendants' Exhibit 1;  Defendants' Exhibit 2.) It was not until September 4, 2009, that the plaintiff was ultimately withdrawn for failing to pay his tuition and fees.  (Affidavit of Laura Tordenti;  Affidavit of John Miller;  Defendants' Exhibit 3;  Defendants' Exhibit 4/Plaintiff's Exhibit 1.)

The other undisputed evidence also does not indicate that the defendants caused the plaintiff's registration as a student to be withdrawn for having previously opposed the discriminatory conduct toward him.   The alleged facts show that the defendants first found out about the plaintiff's complaints in March 2009, and that they received a letter from the plaintiff on June 26, 2009, seeking redress regarding his treatment and the breach of his contract with the University.   Yet, the defendants did not withdraw the plaintiff as a student until September 4, 2009, at least five months after the defendants first learned about the plaintiff's complaints, and two months after the plaintiff's letter.

In addition, as to the alleged retaliation for the plaintiff's filing of the lawsuit in Superior Court complaining of racially discriminatory conduct, the plaintiff alleges that he filed a September 1, 2009 civil action ¹¹ in the Superior Court, alleging discriminatory treatment, and that the defendants retaliated by withdrawing the plaintiff from the University on September 4, 2009.   However, the prior action was commenced against the Central Connecticut State University no earlier than September 4, 2009, by service of process upon the office of the attorneys general.¹²  Moreover, the affidavits of Laura Tordenti and John Miller specify that the defendants were not aware that the plaintiff had served process on the office of the attorneys general at the time that the plaintiff was withdrawn.  (Affidavit of Laura Tordenti;  Affidavit of John Miller.)   The defendants further state that the first notice of this lawsuit was given on September 8, 2009, when they were made aware of the lawsuit by Carolyn Magnan, special assistant to the president.  (Affidavit of Laura Tordenti;  Affidavit of John Miller.)   These assertions are supported by other evidence.   For instance, there is an e-mail from Miller to David Carter, the chancellor of the Connecticut State University system, dated September 8, 2009, in which Miller states that he “just learned that the AG's office has been served with a complaint by the attorney representing [the plaintiff].”  (Defendants' Exhibit 6.) Thus, in regard to the plaintiff's claim that the defendants retaliated against him because he filed another claim in the Superior Court, the undisputed evidence shows that the defendants were not even aware of the other claim until after they had already withdrawn the plaintiff from the University.

In the end, based on the known facts, it was objectively reasonable for the defendants at the time of the challenged action to believe that their withdrawal of the plaintiff's registration was lawful.   Thus, to the extent that the defendants are sued in their personal capacities, they are also entitled to qualified immunity.

V

CONCLUSION

For the foregoing reasons, the defendants' motion to dismiss is GRANTED.

BY THE COURT

Tanzer, J.

FOOTNOTES

FN1. Section 1981 provides in full:  “(a) Statement of equal rights.   All persons within the jurisdiction of the United States shall have the same right in every State and Territory to enter and enforce contracts, to sue, be parties, give evidence and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) ‘Make and enforce contracts' defined.   For purposes of this section, the term ‘make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment.   The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”.  FN1. Section 1981 provides in full:  “(a) Statement of equal rights.   All persons within the jurisdiction of the United States shall have the same right in every State and Territory to enter and enforce contracts, to sue, be parties, give evidence and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) ‘Make and enforce contracts' defined.   For purposes of this section, the term ‘make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment.   The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”

FN2. Section 1983 provides in full:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.   For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”.  FN2. Section 1983 provides in full:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.   For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

FN3. “Sovereign immunity also applies to ․ claims [brought] pursuant to § 1981.”   Perillo v. Quiros, Superior Court, judicial district of New Haven, Docket No. CV–12–5034247–S (November 14, 2012, Wilson, J.)..  FN3. “Sovereign immunity also applies to ․ claims [brought] pursuant to § 1981.”   Perillo v. Quiros, Superior Court, judicial district of New Haven, Docket No. CV–12–5034247–S (November 14, 2012, Wilson, J.).

FN4. The widely cited test set forth in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975), used to determine whether a state action against defendants is in individual or official capacities, is not applicable to § 1983 claims.  “ ‘[A]lthough the test set forth in Spring [v. Constantino, supra, 563,] and Miller [v. Egan, 265 Conn. 301, 828 A.2d 549 (2003),] is an appropriate mechanism for our state courts to determine the capacity in which the named defendants are sued in actions asserting violations of state law, to employ that test to divest state courts of jurisdiction to hear otherwise cognizable § 1983 claims would be to erect a constitutionally impermissible barrier to the vindication of federal rights.   See Howlett v. Rose, [496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) ].’  Sullins v. Rodriguez, [supra, 281 Conn. 128].”  (Internal quotation marks omitted.)  Wright v. DeSantis, supra, Superior Court, Docket No. CV–09–5032806–S..  FN4. The widely cited test set forth in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975), used to determine whether a state action against defendants is in individual or official capacities, is not applicable to § 1983 claims.  “ ‘[A]lthough the test set forth in Spring [v. Constantino, supra, 563,] and Miller [v. Egan, 265 Conn. 301, 828 A.2d 549 (2003),] is an appropriate mechanism for our state courts to determine the capacity in which the named defendants are sued in actions asserting violations of state law, to employ that test to divest state courts of jurisdiction to hear otherwise cognizable § 1983 claims would be to erect a constitutionally impermissible barrier to the vindication of federal rights.   See Howlett v. Rose, [496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) ].’  Sullins v. Rodriguez, [supra, 281 Conn. 128].”  (Internal quotation marks omitted.)  Wright v. DeSantis, supra, Superior Court, Docket No. CV–09–5032806–S.

FN5. See Perillo v. Quiros, Superior Court, judicial district of New Haven, Docket No. CV–12–5034247–S (November 14, 2012, Wilson, J.) (summons listing the defendants' work addresses, and not their residence addresses, serves as evidence that the state is the real party against whom relief is sought);  Roberts v. Jalowiec, Superior Court, judicial district of Waterbury, Docket No. CV–11–6008127 (May 30, 2012, Dooley, J.) (summons listing the defendant's work address is evidence that he was sued in official capacity)..  FN5. See Perillo v. Quiros, Superior Court, judicial district of New Haven, Docket No. CV–12–5034247–S (November 14, 2012, Wilson, J.) (summons listing the defendants' work addresses, and not their residence addresses, serves as evidence that the state is the real party against whom relief is sought);  Roberts v. Jalowiec, Superior Court, judicial district of Waterbury, Docket No. CV–11–6008127 (May 30, 2012, Dooley, J.) (summons listing the defendant's work address is evidence that he was sued in official capacity).

FN6. “[T]he identities of the parties are determined by their description in the summons.”  Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002)..  FN6. “[T]he identities of the parties are determined by their description in the summons.”  Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002).

FN7. “Punitive damages ․ are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.”  (Citations omitted;  internal quotation marks omitted.)   Fidelity & Deposit Co. of Maryland v. Bradley, Superior Court, judicial district of Hartford, Docket No. CV–94–0544726–S (Dec. 22, 1997, Mulcahy, J.).   The Connecticut Supreme Court has declared that punitive and exemplary damages are “merely alternate labels for the same remedy.”   Alaimo v. Royer, 188 Conn. 36, 42, 448 A.2d 207 (1982).   Exemplary damages consist of reasonable expenses incurred in litigation, less taxable costs, and may include the costs of bringing the action and attorneys fees.  Id..  FN7. “Punitive damages ․ are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.”  (Citations omitted;  internal quotation marks omitted.)   Fidelity & Deposit Co. of Maryland v. Bradley, Superior Court, judicial district of Hartford, Docket No. CV–94–0544726–S (Dec. 22, 1997, Mulcahy, J.).   The Connecticut Supreme Court has declared that punitive and exemplary damages are “merely alternate labels for the same remedy.”   Alaimo v. Royer, 188 Conn. 36, 42, 448 A.2d 207 (1982).   Exemplary damages consist of reasonable expenses incurred in litigation, less taxable costs, and may include the costs of bringing the action and attorneys fees.  Id.

FN8. Section 4–165 statutory immunity does not apply in the present case insofar as there are no state claims in this federal § 1983 action.  “Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 ․ cannot be immunized by state law.   A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise;  and the supremacy clause of the Constitution insures that the proper construction may be enforced ․ The elements of, and the defenses to, a federal cause of action are defined by federal law ․” (Emphasis added;  internal quotation marks omitted.)  Sullins v. Rodriguez, 281 Conn. 128, 134, 913 A.2d 415 (2007).   Thus, “[s]ince § 1983 is a federal statute, the law of our state requires that the court apply federal immunity law rather than basing the immunity on General Statutes § 4–165.”   Crooker v. Allen, Superior Court, judicial district of Hartford, Docket No. CV–07–5011602–S (March 27, 2008, Dubay, J.)..  FN8. Section 4–165 statutory immunity does not apply in the present case insofar as there are no state claims in this federal § 1983 action.  “Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 ․ cannot be immunized by state law.   A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise;  and the supremacy clause of the Constitution insures that the proper construction may be enforced ․ The elements of, and the defenses to, a federal cause of action are defined by federal law ․” (Emphasis added;  internal quotation marks omitted.)  Sullins v. Rodriguez, 281 Conn. 128, 134, 913 A.2d 415 (2007).   Thus, “[s]ince § 1983 is a federal statute, the law of our state requires that the court apply federal immunity law rather than basing the immunity on General Statutes § 4–165.”   Crooker v. Allen, Superior Court, judicial district of Hartford, Docket No. CV–07–5011602–S (March 27, 2008, Dubay, J.).

FN9. The defendants misinterpret the claims brought by the plaintiff by arguing that the plaintiff's § 1981 cause of action is based entirely on the claim that the defendants withdrew the plaintiff's registration as a student in retaliation for the filing of another action by the plaintiff.   Furthermore, the defendants incorrectly rely on the holding in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), which was superceded, in relevant part, by a 1991 amendment to the statute.“In Patterson v. McLean Credit Union, [supra, 491 U.S. 176–77], the Supreme Court held that § 1981 only granted two discrete rights:  the right to make contracts, which ‘extends only to the formation of the contract, but not to problems that may arise later from the conditions of continuing employment,’ and the right to enforce contracts, which ‘embraces protection of a legal process, and of a right of access to legal process, that will address and resolve contract-law claims without regard to race.’  Id. Through the Civil Rights Act of 1991, Congress amended § 1981, redesignating the original text as § 1981(a) and adding subsections (b) and (c).  Subsection (b), effectively overruling Patterson, provides that ‘the term make and enforce contracts includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.’   Thus, under the amended § 1981, an employee may bring a cause of action against an employer for racially discriminatory conduct that occurs after the contractual employment relationship has been formed;  under the unamended § 1981, an employee could not.”  (Internal quotation marks omitted.)  Verizon Maryland, Inc. v. RCN Telecom Services, Inc., 232 F.Sup.2d 539, 554 n.7 (D.Md.2002).Here, the defendants argue that § 1981 only provides relief where the plaintiff alleges that the defendants interfered with the plaintiff's ability to enforce established contract rights by impairing access to the legal system.   The defendants' argument is without merit due to the 1991 amendment's expansion of the § 1981 causes of action..  FN9. The defendants misinterpret the claims brought by the plaintiff by arguing that the plaintiff's § 1981 cause of action is based entirely on the claim that the defendants withdrew the plaintiff's registration as a student in retaliation for the filing of another action by the plaintiff.   Furthermore, the defendants incorrectly rely on the holding in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), which was superceded, in relevant part, by a 1991 amendment to the statute.“In Patterson v. McLean Credit Union, [supra, 491 U.S. 176–77], the Supreme Court held that § 1981 only granted two discrete rights:  the right to make contracts, which ‘extends only to the formation of the contract, but not to problems that may arise later from the conditions of continuing employment,’ and the right to enforce contracts, which ‘embraces protection of a legal process, and of a right of access to legal process, that will address and resolve contract-law claims without regard to race.’  Id. Through the Civil Rights Act of 1991, Congress amended § 1981, redesignating the original text as § 1981(a) and adding subsections (b) and (c).  Subsection (b), effectively overruling Patterson, provides that ‘the term make and enforce contracts includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.’   Thus, under the amended § 1981, an employee may bring a cause of action against an employer for racially discriminatory conduct that occurs after the contractual employment relationship has been formed;  under the unamended § 1981, an employee could not.”  (Internal quotation marks omitted.)  Verizon Maryland, Inc. v. RCN Telecom Services, Inc., 232 F.Sup.2d 539, 554 n.7 (D.Md.2002).Here, the defendants argue that § 1981 only provides relief where the plaintiff alleges that the defendants interfered with the plaintiff's ability to enforce established contract rights by impairing access to the legal system.   The defendants' argument is without merit due to the 1991 amendment's expansion of the § 1981 causes of action.

FN10. Section 1981 actions, including actions involving allegations of retaliation, are generally raised only in the employment context.   See Bishop v. Henry Modell & Co., Docket No. CV08CV7541 (NRB).  (S.D.N.Y. November 10, 2009).   Nevertheless, “[§ ]1981 applies to the [p]laintiff's claims because the relationship between university and student is contractual in nature.”  Miller v. Thomas Jefferson University Hospital, 908 F.Sup.2d 639, 650 (E.D.Pa.2012) (holding that § 1981 applies where the plaintiff, an African–American female student, was alleging discrimination, retaliation, and hostile work environment claims after being dismissed from private university's nurse anesthetist program);  see also Boyd v. Feather River Community College District, Docket No. 2:11CV0231 JAM–EFB (E.D.Cal. October 20, 2011) (holding that “contract for purposes of Section 1981 for services exists between schools and the students”), citing to Gratz v. Bollinger, 539 U.S. 244, 275 n.23, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), and Runyon v. McCrary, 427 U.S. 160, 172, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976)..  FN10. Section 1981 actions, including actions involving allegations of retaliation, are generally raised only in the employment context.   See Bishop v. Henry Modell & Co., Docket No. CV08CV7541 (NRB).  (S.D.N.Y. November 10, 2009).   Nevertheless, “[§ ]1981 applies to the [p]laintiff's claims because the relationship between university and student is contractual in nature.”  Miller v. Thomas Jefferson University Hospital, 908 F.Sup.2d 639, 650 (E.D.Pa.2012) (holding that § 1981 applies where the plaintiff, an African–American female student, was alleging discrimination, retaliation, and hostile work environment claims after being dismissed from private university's nurse anesthetist program);  see also Boyd v. Feather River Community College District, Docket No. 2:11CV0231 JAM–EFB (E.D.Cal. October 20, 2011) (holding that “contract for purposes of Section 1981 for services exists between schools and the students”), citing to Gratz v. Bollinger, 539 U.S. 244, 275 n.23, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), and Runyon v. McCrary, 427 U.S. 160, 172, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).

FN11. The action in question is Ngetich v. Central Connecticut State University, HHB–CV096002041–S.   The defendants in that action are Central Connecticut State University and Kawecki..  FN11. The action in question is Ngetich v. Central Connecticut State University, HHB–CV096002041–S.   The defendants in that action are Central Connecticut State University and Kawecki.

FN12. The defendants argue, and present evidence, that the prior action was mailed on September 4, 2009, and served on the attorneys general on September 9, 2009.   The plaintiff argues that the designated agent for service upon University personnel, the attorneys general, received service of the lawsuit on September 4, 2009..  FN12. The defendants argue, and present evidence, that the prior action was mailed on September 4, 2009, and served on the attorneys general on September 9, 2009.   The plaintiff argues that the designated agent for service upon University personnel, the attorneys general, received service of the lawsuit on September 4, 2009.

Tanzer, Lois, J.T.R.