Opinion
KNLCV175015516S
12-12-2017
Jean JACQUES v. Correction Officer EVANS
UNPUBLISHED OPINION
OPINION
Handy, J.
I. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Jean Jacques, a sentenced prisoner, filed this action, appearing to claim violations of his constitutional rights, seeking money damages, against Correction Officer Evans, employed by the Department of Corrections (DOC). The plaintiff claims that he was improperly strip searched by the defendant, Evans, upon the plaintiff’s return from court appearances, which constituted sexual harassment. By motion dated July 31, 2017, the defendant moved to dismiss the plaintiff’s complaint. The defendant contends that the court does not have personal jurisdiction over him in that he was not served in his individual capacity. The defendant further argues that the court lacks subject matter jurisdiction over him due to sovereign immunity.
The plaintiff was sentenced on June 6, 2016, to the crime of murder and received a sentence of sixty years to serve. There is currently both a pending appeal and sentence review brought by the plaintiff.
The plaintiff did not file any objection to the motion to dismiss nor any memorandum of law regarding this issue. The court heard oral argument on the defendants’ motion on November 16, 2017, at which time all parties had an opportunity to be heard. Counsel for the defendants appeared in court; a Haitian-Creole interpreter was present in court to assist the plaintiff; and the plaintiff appeared by way of video conferencing from the jail.
II. LAW AND DISCUSSION
A motion to dismiss is used primarily to challenge the jurisdiction of the court. Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). Practice Book § 10-30(a) provides the grounds for dismissal: " (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." " [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 whether or not the court is without jurisdiction. MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). In deciding a motion to dismiss, the court must decide whether the claim is one which the court has jurisdiction to hear and decide. Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
A. Personal Jurisdiction Over Corrections Officer Evans
Jurisdiction over the person requires the proper service of process according to the statutory rules. Defects in the process or the service of the process will render the case subject to dismissal. " Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes ... are essential to jurisdiction over the person. " (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
In this matter, General Statutes Section 52-57(a) pertains to the method for serving process and provides: " Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." In the present case, the defendant was never served individually. Instead, service in this case was only made upon an Associate Attorney General, Kimberly P. Massicotte, for the defendant at the 55 Elm Street, Hartford, CT address. (Marshal’s Return, 100.32.) That service would only satisfy official-capacity service, not individual-capacity service. " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction." Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).
The case of Harnage v. Lightner, 163 Conn.App. 337, 137 A.3d 10, cert. granted, 323 Conn. 902, 150 A.3d 683 (2016), was recently argued before our Supreme Court. That appeal specifically deals with this issue: whether or not service on the Attorney General for the state of Connecticut constitutes proper service on state providers in their individual capacities.
Accordingly, the defendants’ motion to dismiss for lack of personal jurisdiction as to the defendant is granted.
B. Connecticut’s Sovereign Immunity and Subject Matter Jurisdiction
It is unclear to this court from its reading of the plaintiff’s complaint whether the plaintiff is suing the defendant in his individual capacity only or also intended to sue him in his official capacity. To the extent that the latter analysis is true, this court would lack subject matter jurisdiction over the defendant as well.
Subject matter jurisdiction refers to the power of the court to hear and determine cases of the general class to which the proceedings in general belong. Southern New England Telephone Co. v. Dept . of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002). Lack of subject matter jurisdiction may be raised at any time. Waterbury v. Washington, 260 Conn. 506, 527, 800 A.2d 1102 (2002). Once raised, the court must consider and decide the issue of jurisdiction before proceeding further. Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).
In this matter, the defendant, if sued in any official capacity, argues that the doctrine of sovereign immunity under both the eleventh amendment of the United States constitution and Connecticut common law precludes this court from having subject matter jurisdiction to hear and decide the plaintiff’s complaint. " [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).
The eleventh amendment of the United States constitution provides in relevant part: " The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State ..." The eleventh amendment bars lawsuits against states absent consent from the state or abrogation of the immunity by Congress under § 5 of the fourteenth amendment. Virginia Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 253-54, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011). A state may waive its sovereign immunity at its pleasure. College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 675-76, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). " [I]n some circumstances Congress may abrogate it by appropriate legislation. But absent waiver or valid abrogation, federal courts may not entertain a private person’s suit against a State." Virginia Office for Protection and Advocacy v. Stewart, supra, 563 U.S. 253-54.
No such waiver or abrogation exists in this case. See Quern v. Jordan, 440 U.S. 332, 338-45, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). The eleventh amendment would, therefore, deprive this court of subject matter jurisdiction over the plaintiff’s claims against the defendant.
2. Connecticut Common Law
The doctrine of sovereign immunity provides that the state is immune from suit unless it consents to be sued. Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). There are few and narrowly construed exceptions to this doctrine. Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 275, 21 A.3d 759 (2011); DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). Three exceptions to the doctrine of sovereign immunity have been recognized by our Supreme Court: " (1) when the legislature either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights ... and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority." (Citations omitted; internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). Any exceptions to the doctrine of sovereign immunity for actions by state officers in excess of their statutory authority applies only to actions evoking declaratory or injunctive relief and not to those seeking monetary damages. Miller v. Egan, supra, 265 Conn. 312-13.
No such exception exists in this case. Absent such an exception, the plaintiff was required to first seek permission from the Connecticut Claims Commissioner before suing the state or any of its officials in their official capacities. General Statutes § 4-142. " [T]he claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim ... This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the [claims] commissioner or other statutory provisions." Columbia Air Services, Inc. v. Dept . of Transportation, 293 Conn. 342, 352, 977 A.2d 636 (2009).
In this matter, the plaintiff seeks only money damages against the defendant, in his official capacity, if any. Waiver is the only exception that allows monetary damages. There is no waiver from the Claims Commissioner in this case. Accordingly, this court lacks subject matter jurisdiction and the motion to dismiss against the defendant, acting in his official capacity, if any, is granted.
II. CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss the plaintiff’s complaint is granted.