ELGO, J.

UNPUBLISHED OPINION

Dated November 24, 2017

OPINION

ELGO, J.

In this action, the plaintiff, Omar J. Miller, has filed a revised complaint, dated June 18, 2014, against the defendant, Department of Corrections (DOC) Officer Joshua Medina, who is being sued in his individual capacity pursuant to allegations that he has violated the plaintiff’s civil rights under the eighth amendment to the U.S. Constitution. Specifically, the plaintiff seeks compensatory and punitive damages pursuant to 42 U.S.C. § 1983, whereby he claims that the defendant subjected him to cruel and unusual punishment by failing to abide by reasonable safety standards during transportation of the plaintiff resulting in a collision with another vehicle. The plaintiff has also alleged that the defendant " committed torts" pursuant to General Statutes § 4-165.

Before this court is the defendant’s motion to reconsider this court’s decision denying the defendant’s motion to dismiss. The defendant asks that this court reconsider its decision denying his claim of qualified immunity and whether or not sovereign immunity bars this action. As to qualified immunity, the defendant reiterates his claim that the plaintiff has failed sufficiently to allege that (1) based on an objective standard, he suffered a deprivation that was " sufficiently serious that he was denied the minimal civilized measure of life’s necessities, " and (2) that the defendant acted with a " sufficiently culpable state of mind such as deliberate indifference to inmate health or safety." As to sovereign immunity, the defendant asserts that this action is barred because the state is the real party in interest, notwithstanding the plaintiff’s allegations that the defendant is being sued in his individual capacity.

The plaintiff seeks damages as a result of sustaining injuries as an inmate in the custody of the Department of Corrections. In count two, the plaintiff alleges that the incident occurred on July 3, 2013 during his transport by the defendant to and from MacDougall Walker Correctional Institute and the University of Connecticut John Dempsey Hospital. Because of a metal barrier installed between the front and rear seats, the plaintiff informed the defendant prior to entering the vehicle that the rear seating space was too small. He alleges that he told the defendant that the conditions in the vehicle were " improper and unsafe because there wasn’t room for him to sit up and be restrained." Notwithstanding those concerns, the defendant directed the plaintiff to put his feet up on the seat and did not use seat belt restraints to secure the plaintiff. During the transport, the plaintiff alleges that the defendant was driving both erratically and in excess of the speed limit. The plaintiff further alleges in count two that the defendant acted with deliberate indifference by failing to ascertain the extent of the plaintiff’s injuries and by telling the plaintiff to " stop talking" following the collision.

In count four, the plaintiff’s allegations include all of the foregoing facts and additionally alleges that the defendant was impaired by virtue of his " physical exhaustion" and that by failing to operate the vehicle within posted speed limits, the defendant engaged in wanton and reckless behavior resulting in the plaintiff’s physical injuries.

I. Qualified Immunity

The defendant claims that he is entitled to qualified immunity. " [T]he doctrine of federal qualified immunity ... implicates the court’s subject matter jurisdiction, and is a proper ground for the motion to dismiss." Kaminski v. Milling, Superior Court, judicial district of New Britain, Docket No. CV-14-5016058-S, 2015 WL 9809795, at *3 (Dec. 23, 2015, Young, J.). " [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 an immunity from suit rather than a mere defense to liability and, therefore, protects officials from the burdens of litigation for the choices that they make in the course of their duties." (Citation omitted; internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 216, 9 A.3d 347 (2010). " Qualified immunity balances two important interests- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." (Internal quotation marks omitted.) Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Furthermore, " the driving force behind creation of the qualified immunity doctrine was a desire to ensure that insubstantial claims against government officials [will] be resolved prior to discovery ... Accordingly, we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation." (Citation omitted; internal quotation marks omitted.) Id., 231-32.

To determine whether Officer Medina is entitled to qualified immunity, the court applies a two-prong analysis. " Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads 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." (Internal quotation marks omitted.) Ashcroft v. al -Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). The latter inquiry " turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." (Internal quotation marks omitted.) Pearson v. Callahan, supra, 555 U.S. 244. " [I]f it was objectively reasonable for him at the time of the challenged action to believe his acts were lawful ... then qualified immunity applies." (Citation omitted; internal quotation marks omitted.) Traylor v. Gerratana, 148 Conn.App. 605, 612, 88 A.3d 552, cert. denied, 135 S.Ct. 444, 190 L.Ed.2d 336 (2014). Trial judges confronted with qualified immunity claims are " 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." Pearson v. Callahan, supra, 555 U.S. 236.

A. Violation of the Eighth Amendment

In this case, the plaintiff alleges a violation of his rights under the eighth amendment right to protection from cruel and unusual punishment. The United States Supreme Court has interpreted the prohibition against cruel and unusual punishment to include a right to safe and humane conditions of confinement. See Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A denial of safe and humane conditions can result from an officer’s deliberate indifference to a prisoner’s safety. See Brown v. Fortner, 518 F.3d 552, 560 (2008). " The [e]ighth [a]mendment prohibits the infliction of cruel and unusual punishments ... This includes punishments that involve the unnecessary and wanton infliction of pain ... The standard of deliberate indifference includes both subjective and objective components. First, the alleged deprivation must be, in objective terms, sufficiently serious ... Second, the [government official] must act with a sufficiently culpable state of mind ... An official acts with the requisite deliberate indifference when that official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference ... Thus, an official’s failure to alleviate a significant risk that he should have perceived but did not [does not violate the eighth amendment]." (Internal quotation marks omitted.) Braham v. Newbould, 160 Conn.App. 294, 302-03, 124 A.3d 977 (2015).

In Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012), the Second Circuit observed: " As to the objective element, there is no static test to determine whether a deprivation is sufficiently serious; the conditions themselves must be evaluated in light of contemporary standards of decency ... We have held that prisoners may not be deprived of their basic human needs- e.g., food, clothing, shelter, medical care, and reasonable safety- and they may not be exposed to conditions that pose an unreasonable risk of serious damage to [their] future health ...

" As for the subjective requirement, deliberate indifference requires more than mere negligence ... The prison official must know of, and disregard, an excessive risk to inmate health or safety ... [A]n official’s failure to alleviate a significant risk that he should have perceived but did not ... [cannot] be condemned as the infliction of punishment ... To establish a due process violation of the Fourteenth Amendment, an inmate must show that a government official made a deliberate decision to deprive him of his life, liberty, or property. Merely negligent conduct does not give rise to claims under the Fourteenth Amendment." (Citations omitted; internal quotation marks omitted.)

As our U.S. Supreme Court has held in Farmer v. Brennan, supra, 511 U.S. 847, a prison official may be held liable " only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it."

In the present case, there are six aspects of the plaintiff’s allegations that this court finds relevant: (1) that insufficient space existed in the rear of the vehicle for the plaintiff to sit in an upright position during transportation; (2) that defendant directed the plaintiff to get into the rear seat and put his feet up on the seat; (3) that the defendant failed to ensure that the plaintiff was securely restrained; (4) that the plaintiff specifically advised the defendant that this was unsafe and that he was concerned for his well-being; (5) that administrative directives specifically require that the plaintiff be secured by seat belts; and (6) that the defendant drove erratically and at an excessive rate of speed knowing the plaintiff was not secured.

Although self-represented, the plaintiff nevertheless has meticulously and carefully alleged that the defendant was not only aware of the risk of harm to the plaintiff but then disregarded that risk by acting with deliberate indifference to his physical safety, specifically in his failure to abide by DOC administrative directives requiring appropriate seat belt restraints. Moreover, the plaintiff has further alleged that the defendant engaged in reckless and wanton conduct by driving erratically and at an excessive speed even though he specifically advised the defendant at the outset that he believed it was unsafe and improper for him to be driven unsecured.

The defendant’s motion for reconsideration focuses on the claim that this court overlooked federal precedent which holds that the failure of a prison official to secure inmates with a seatbelt does not, standing alone, violate the Eighth or Fourteenth Amendments, or that driving under those conditions with excessive speed does not rise to the level of a § 1983 violation. In Jabbar v. Fischer, supra, 683 F.3d 56, the Second Circuit held that the " failure of prison officials to provide seatbelts to prison inmates does not, standing alone, violate the Eighth or Fourteenth Amendments." Unlike the plaintiff in Jabbar, however, and contrary to the defendant’s brief, which states that " there is no allegation in the complaint that the defendant knew the plaintiff was concerned for his safety but ignored those concerns, " the plaintiff in the present case has alleged that the defendant operated the vehicle erratically and in excess of posted speed limits, knowing that the plaintiff was not restrained by a seatbelt and sitting with his feet up on the seat. Indeed, the plaintiff specifically alleged that he informed the defendant of his concerns regarding his own safety and that the defendant was alleged not to be merely speeding but rather " driving erratically."

The court further notes that the complaint alleges that the plaintiff was confined in a small area, which featured a metal barrier. The District Court in the Southern District of New York has concluded that the " alleged act of driving recklessly, while Plaintiff was confined in a cage without any reasonable means to protect himself from impact would satisfy the objective prong on the analysis. Moreover, [the court stated, ] given that [the Officer] was the driver of the bus and that Plaintiff was seated right behind him, it is reasonable to infer that [the Officer] was either actually aware of the excessive risk to Plaintiff’s safety or that the risk was obvious, thereby satisfying the subjective prong of the test under either the Eighth or [Fourteenth] Amendments." Cuffee v. City of New York, No. 15CIV8916PGGDF, 2017 WL 1134768, at *1 (S.D.N.Y. Mar. 27, 2017).

Further, the United States Court of Appeals for the Eighth Circuit has allowed claims to proceed with facts similar to the facts alleged in the plaintiff’s complaint. In Brown v. Fortner, supra, 518 F.3d 559-60, an inmate sued the driver of a prison van, alleging that he was injured when the driver operated the van recklessly after refusing to buckle the inmate’s seatbelt. The inmate was unable to buckle the seatbelt himself because he was shackled. Id. The Eighth Circuit held that the defendant’s refusal to secure the plaintiff’s seatbelt combined with the defendant’s reckless driving was sufficient to conclude that there was a substantial risk of harm to the plaintiff and that the defendant knew of and disregarded the substantial risk of harm. Id., 560. See also Torres v. Amato, 22 F.Supp.3d 166, 175 (2nd Cir. 2014); Rogers v. Boatright, 709 F.3d 403, 408-09 (5th Cir. 2013).

The plaintiff claims in the present case that the defendant knew that the plaintiff would be at serious risk of injury in the event of a collision, given that the defendant was alleged to be aware of the requirement that inmates must be secured by seat belts, and given the allegations that the defendant drove erratically and unsafely while the plaintiff was not safely secured, this court concludes that the plaintiff has alleged sufficient facts to support that the defendant acted with a sufficiently culpable state of mind. Accordingly, the plaintiff has alleged sufficient facts to support the subjective and objective requirements of an eighth amendment violation.

B. Clearly Established Right

The second prong of the analysis requires determination of whether the constitutional right violated was clearly established. Qualified immunity is inapplicable if the official’s conduct violated a clearly established constitutional right. Pearson v. Callahan, supra, 555 U.S. 232.

A right is " clearly established" if " [t]he contours of the right ... [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). A right is clearly established if " it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151 (2001). Officials are immune from suit when they are not on notice that their actions are unconstitutional, or when their actions violate federal rights of which a reasonable person would not be aware. Carrasquillo v. New York, 324 F.Supp.2d 428, 440 (S.D.N.Y. 2004).

The Second Circuit has articulated a three-part test to determine whether a right is clearly established: " To determine whether a right is clearly established, we look to: (1) whether the right was defined with reasonable specificity; (2) whether Supreme Court or court of appeals case law supports the existence of the right in question; and (3) whether under preexisting law a reasonable defendant would have understood that his or her acts were unlawful." Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (citing Shechter v. Comptroller of City of N.Y., 79 F.3d 265, 271 (2d Cir. 1996)). " Courts ‘do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.’ " Walker v. Schult, 717 F.3d 119, 125-26 (2d Cir. 2013) (quoting Ashcroft v. al -Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011)). " As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see also Torres v. Amato, 22 F.Supp.3d 166, 179 (N.D.N.Y. 2014).

The Supreme Court in Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508 (2002), makes clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances. " Indeed, in Lanier, we expressly rejected a requirement that previous cases be ‘fundamentally similar.’ Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding. The same is true of cases with ‘materially similar’ facts. Accordingly, pursuant to Lanier, the salient question that the Court of Appeals ought to have asked is whether the state of the law [at the time of the alleged violation] gave respondents fair warning that their alleged treatment of [the plaintiff] was unconstitutional." Id.

In Fortner, supra, 518 F.3d 561-62, the Eighth Circuit similarly addressed a deliberate indifference claim with factual allegations like those in the plaintiff’s complaint. The Eighth Circuit held that the defendant " had ‘fair warning’ that driving recklessly while transporting a shackled inmate who had been denied the use of a seatbelt and ignoring requests to slow down violated the constitutional prohibition against cruel and unusual punishment." Id. In determining that the right was clearly established, the court stated: " There is no question that it was clearly established that subjecting inmates to unreasonable and substantial risk of harm constituted a constitutional violation." Id., 561. " Other cases addressing deliberate indifference to the safety of prisoners provided notice that the conduct engaged in by Fortner was unconstitutional, making the right clearly established. [Craighead v. Lee, 399 F.3d 954 (8th Cir. 2005) ] (finding no prior cases presenting the same factual circumstances in an excessive force claim, but concluding nonetheless that the right allegedly violated was clearly established because the prior case law, while factually distinct, would have put a reasonable officer on notice that the challenged conduct was unconstitutional)." (Citations omitted.) Id., 561-62.

Although there were no published decisions from the Second Circuit addressing this specific factual situation at the time of the alleged conduct, July 3, 2013, the absence of case law directly on point is not dispositive. The court in Torres v. Amato, 22 F.Supp.3d 166 (2014), determined that " [t]he law describing deliberate indifference was clear in the Second Circuit on October 13, 2010 [the date of the alleged constitutional violation]. Deliberate indifference requires knowingly subjecting an inmate to a sufficiently serious risk of harm. Accordingly, it was clearly established that prison employees could not subject an inmate to a substantial risk of serious harm." (Citation omitted.) Torres, supra, 22 F.Supp.3d 180.

In Jabbar v. Fischer, supra, 683 F.3d 54, the Second Circuit in 2012 addressed deliberate indifference in the context of inmate transportation. The plaintiff in Jabbar did not allege a failure to provide a seatbelt in combination with erratic driving or driving at excessive speeds. Id., 56-58. The court nevertheless suggested the fact that, in the context of prisoner transportation, something more than a failure to provide an inmate with a seatbelt may violate the Eighth Amendment. The court specifically held that " the failure of prison officials to provide inmates with seatbelts does not, without more, violate the Eighth or Fourteenth Amendments." The court then stated that " the failure to provide a seatbelt is not, in itself, ‘sufficiently serious’ to constitute an Eighth Amendment violation." (Emphasis added.) Id. Significantly, the Jabbar case also cites to Brown v. Fortner to compare a case where the officer’s failure to provide seatbelt while driving recklessly constituted unreasonable and substantial risk of harm to the plaintiff violating his eighth amendment rights. Id., 58. Given that the court noted the factually distinct circumstances of Brown v. Fortner, Jabbar would have placed a reasonable officer on notice that the failure of prison officials to provide inmates with seatbelts, combined with additional factors such as reckless and erratic driving, violates the Eighth Amendment.

Based on the foregoing, the plaintiff’s complaint sufficiently alleges a violation of a clearly established constitutional right- namely, that prison employees may not subject an inmate to a substantial risk of serious harm when transporting them in a vehicle. Given that the plaintiff has alleged that the defendant drove erratically and recklessly, notwithstanding the defendant’s knowledge of regulations requiring seatbelts as well as the plaintiff’s expressed concern for his safety, the court concludes that the defendant is not entitled to qualified immunity.

II. Sovereign Immunity

With respect to the tort claims in count four, the defendant invokes the doctrine of sovereign immunity based on his claim that he is being sued as an agent or employee of the state and acting within the scope of his employment. As such, the defendant argues that the state is the real party in interest and thus sovereign immunity bars this action. In his original motion to dismiss, the defendant’s claim of sovereign immunity as to the tort claims was based on the assumption that the defendant was being sued in his official capacity. In its first decision, this court found that the defendant was sued in his individual capacity, albeit applying federal jurisprudence as outlined in Sullins v. Rodriguez, 281 Conn. 128, 913 A.2d 415 (2007). That finding, however, has no bearing on the issue of whether the defendant is being sued in his individual capacity as to the state law claims, which was not originally raised by the defendant and not addressed by this court. In its motion for reconsideration, which this court grants, the defendant now asks this court specifically to find that the defendant is being sued in his official capacity as to the state law claims pursuant to the authority of Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975), and Cimmino v. Marcoccia, 149 Conn.App. 350, 357-60, 89 A.3d 384, 389-91 (2014).

As the United States Supreme Court has observed, sovereign immunity is " a constitutional principle" and such " immunity from suit is demarcated ... by fundamental postulates implicit in the constitutional design." Alden v. Maine, 527 U.S. 706, 729, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Connecticut law has " long recognized the validity of the common-law principle that the state cannot be sued without its consent ... [B]ecause the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state ... A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." (Citations omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313-14, 828 A.2d 549 (2003). Accordingly, " [t]he doctrine of sovereign immunity protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." Tuchman v. State, supra, 89 Conn.App. 751.

To the extent that the plaintiff’s complaint asserts a claim against the defendant in his individual capacity, however, sovereign immunity is not a bar. See Miller v. Egan, supra, 265 Conn. 307 (" [i]f the plaintiff’s complaint may reasonably be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims"). At the same time, the mere fact that a plaintiff has alleged that the defendant is being sued in his individual capacity does not, in and of itself, defeat the defendant’s assertion of sovereign immunity. Cimmino v. Marcoccia, supra, 149 Conn.App. 359; cf. Sullins v. Rodriguez, 281 Conn. 128, 141, 913 A.2d 415 (2007) (articulation of the defendant’s capacity is sufficient to commence a § 1983 claim against a state officer in his individual capacity).

With respect to state law claims, " [t]he determination of whether the plaintiff’s complaint allege[s] claims against the defendants in their individual capacities is governed by the test set forth in Spring v. Constantino, [supra, 168 Conn. 568]." Miller v. Egan, supra, 265 Conn. 308. " The vital test is to be found in the essential nature and effect of the proceeding." Id. " To determine whether an action is against the state or against a defendant in his individual capacity, we look to the four criteria established by our Supreme Court in [Somers v. Hill, 143 Conn. 476, 479-80, 123 A.2d 468 (1956) ] and ... explained ... in [Spring v. Constantino, supra, 168 Conn. 568]. If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred ... Accordingly, we must determine whether (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Citations omitted; internal quotation marks omitted.) Cimmino v. Maroccia, supra, 149 Conn.App. 357-58.

With respect to the first criterion, it is undisputed that the defendant is a state official. As to the second criteria, the allegations clearly involve a matter in which the defendant represents the state, to the extent that the defendant was transporting the plaintiff during the alleged incident in his role as a corrections official. As to the third and fourth criteria, however, this court concludes that the allegations in the complaint, viewed in the light most favorable to the plaintiff, warrant a finding that the defendant is being sued in his individual capacity.

In considering whether the state is the real party against whom relief is sought, our courts have considered whether the acts from which damages are claimed are an inherent part of the official duties of the state employee. For example, in Somers v. Hill, supra, 143 Conn. 480, the case from which the four criteria of Spring v. Constantino are derived, the court found that that suit against the highway commissioner was essentially a suit against the state, observing that the plaintiff sought damages " for injuries alleged to have been caused by the commissioner in carrying out specific acts for which the state employs him, and injunctive relief is requested to restrain him, in his official capacity, from performing duties imposed on him by law." (Emphasis added.)

In finding that the state was in fact the real party in interest, the court in Cimmino n oted that the lawsuit filed against the defendants, who were an assistant attorney general and an official from the Office of the Child Advocate, stemmed from their joint investigation into the manner in which allegations of abuse and neglect by school employees were being addressed. In that case, the allegedly tortious conduct, i.e., asking the school principal " what he intended to do" about photographs which depicted child abuse which were allegedly taken by the school employee, was deemed to be conduct in furtherance of their statutorily authorized functions. As such, the court concluded that the plaintiff’s claim for damages were premised " entirely on injuries alleged to have been caused by the defendants in performing acts that were part of their official duties." Cimmino v. Marcoccia, supra, 149 Conn.App. 359-60.

In Kenney v. Weaving, 123 Conn.App. 211, 216-17 (2010), the plaintiff’s complaint, which alleged that the defendant, commissioner of the department of motor vehicles, through his employees, officers and/or agents, failed to revoke the license of the tortfeasor, was bereft of any allegations that the commissioner had personal involvement with the accident or licensing of the tortfeasor. As such, the court concluded that the defendant was sued solely because he was the commissioner at the time of the accident. See also Stocking v. Semple, Superior Court, judicial district at New Britain, Docket No. 155017038 (Aug. 10, 2016) (state establishes third criterion where defendant, Commissioner of the Department of Corrections, was not named in any of the allegations and was not alleged to have personally participated in any of the allegedly unlawful acts).

Where our superior courts have found that the defendant was sued in his individual capacity premised on either an analysis of the third or fourth criterion, the approach has been to evaluate the conduct alleged in the complaint. Specifically, our courts have considered whether the allegedly tortious conduct is or is not encompassed within the state employee’s official duties pursuant to the third criteria and/or whether the allegations support a claim of wanton, reckless or malicious conduct pursuant to the fourth criteria. For example, in Fuller v. State, Superior Court, judicial district of Fairfield at Bridgeport, docket no. CV155031195S (Mar. 30, 2017), the court held that the defendant public defender did not establish that the state was the real party in interest because the conduct alleged, specifically, physical assault and threats against his client during a conference, could not be considered part of his official duties.

In Hanton v. Williams et al., Superior Court, judicial district of New Haven, docket no. CV 095030962 (June 3, 2011), the court found that when considered in the light most favorable to the plaintiff, the allegations of deliberate and malicious conduct meant that a judgment for the plaintiff would not subject the state to liability pursuant to the indemnification provisions of General Statutes 5-141d(a). In so doing, the court concluded that the defendants failed to establish the fourth prong of the Spring test and that therefore, the defendants were being sued in their individual capacity. See Staton v. Cassavechia, No. 3:08-CV-142-JCH, 2011 WL, 3040911, at *4 (D.Conn. July 25, 2011) (plaintiff’s claim for malicious, wanton, or intentional misconduct may reasonably be construed to bring claims against defendant in his individual capacity in light of the provisions of § 5-141d(a) in which the state has no duty to indemnify judgments arising from said conduct). Cf. Perillo v. Quiros, Superior Court, judicial district of New Haven, docket No. 125034247 (Nov. 14, 2012) (plaintiff’s use of the word " recklessly" in one sentence of the complaint does not constitute an allegation of recklessness where the plaintiff has neither alleged that the defendants acted with the requisite state of consciousness nor alleged facts from which reckless conduct can be inferred).

Applying the third and fourth criterion of the Spring test in light of relevant caselaw, and considering the complaint in the light most favorable to the plaintiff, this court concludes that the plaintiff has sued the defendant in his individual capacity. The plaintiff seeks monetary damages and has definitively pled that he has sued the defendant in his individual capacity. More importantly, and as this court has already found in the foregoing discussion relevant to its qualified immunity analysis, the defendant is alleged to have engaged in conduct whereby he was aware of the requirement that inmates must be secured by seat belts, was told by the plaintiff that he did not feel safe, but nevertheless drove erratically and unsafely while the plaintiff was not safely secured. Because such conduct was allegedly in violation of his official duties and responsibilities, and because the defendant was alleged to knowingly engage in conduct resulting in injury to the plaintiff, the allegations support this court’s finding that 1) the state is not the real party in interest, and 2) a judgment in favor of the plaintiff will not operate to control the interests of the state or subject it to liability. Because the state has no duty to indemnify judgments arising from said alleged conduct pursuant to 5-141d, this court concludes that the defendant may be sued in his individual capacity and thus, sovereign immunity does not bar this action.

III. Conclusion

For all the foregoing reasons, the court grants the motion to reconsider but denies the motion to dismiss.

(a) The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141, and any member of the Public Defender Services Commission from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person’s civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.

(b) The state, through the Attorney General, shall provide for the defense of any such state officer, employee or member in any civil action or proceeding in any state or federal court arising out of any alleged act, omission or deprivation which occurred or is alleged to have occurred while the officer, employee or member was acting in the discharge of his duties or in the scope of his employment, except that the state shall not be required to provide for such a defense whenever the Attorney General, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he so notifies the officer, employee or member in writing.

(c) Legal fees and costs incurred as a result of the retention by any such officer, employee or member of an attorney to defend his interests in any such civil action or proceeding shall be borne by the state only in those cases where (1) the Attorney General has stated in writing to the officer, employee or member, pursuant to subsection (b) of this section, that the state will not provide an attorney to defend the interests of the officer, employee or member, and (2) the officer, employee or member is thereafter found to have acted in the discharge of his duties or in the scope of his employment, and not to have acted wantonly, recklessly or maliciously. Such legal fees and costs incurred by such officer, employee or member shall be paid to such officer, employee or member only after the final disposition of the suit, claim or demand and only in such amounts as shall be determined by the Attorney General to be reasonable. In determining whether such amounts are reasonable, the Attorney General may consider whether it was appropriate for a group of officers, employees or members to be represented by the same counsel.