Laliberte v. O'Meara

Full title: ERIC LALIBERTE ET AL. v. PETER O'MEARA

Court: Connecticut Superior Court Judicial District of Waterbury at Waterbury

Date published: Mar 18, 2009

2009 Ct. Sup. 5226 (Conn. Super. Ct. 2009)

47 CLR 427

Opinion

No. CV08-5008140

March 18, 2009

MEMORANDUM OF DECISION RE MOTION TO DISMISS AMENDED COMPLAINT (#111), OBJECTION TO MOTION TO DISMISS (#112.5) AND REPLY (#113)

ALVORD, J.

On December 22, 2008, the court heard oral argument on the defendant's motion to dismiss Counts three, four, six and seven of the plaintiffs' amended complaint, for lack of subject matter jurisdiction insofar as the counts are barred by the doctrine of sovereign immunity. It is the decision of the court that Counts three and seven are dismissed in their entirety and the court partially dismisses Counts four and six.

I FACTS

On May 7, 2008, Eric Laliberte, through his mother and next friend, Terri Laliberte, and Terri Laliberte individually, (the plaintiffs) filed a seven-count amended complaint against Peter O'Meara (the defendant) in his official capacity as the Commissioner of the Department of Developmental Services. The amended complaint alleges that on March 7, 2006, Eric Laliberte was injured while in the care and custody of the Department of Developmental Services when he was allowed to consume peanut-butter despite a well-documented peanut allergy, and that he has been furthermore discriminated against by the defendant since the occurrence of that incident. Counts one and two allege negligence and negligent infliction of emotional distress respectively. Count three alleges causes of action sounding in: (1) discrimination in violation of article first § 20, of the constitution of Connecticut (Equal Protection Clause), as amended by article twenty-one of the amendments; (2) discrimination in violation of § 29 U.S.C. 794 (the Rehabilitation Act); and (3) discrimination in violation of § 42 U.S.C. 12112 et seq. (the Americans with Disabilities Act, ADA). Count four alleges retaliatory discrimination. Count five alleges negligence pursuant to General Statutes § 19a-24(a). Count six alleges an unspecified violation of the fourteenth amendment of the United States Constitution pursuant to CT Page 5227 42 U.S.C. § 1983, and Count seven sounds in a violation of the plaintiffs' rights, privileges and immunities pursuant to General Statutes § 17a-238.

On October 6, 2008, the defendant filed a timely motion to dismiss the third, fourth, sixth and seventh counts of the plaintiffs' amended complaint for lack of subject matter jurisdiction. On November 6, 2008, the plaintiffs filed their memorandum in opposition to the defendant's motion to dismiss. Argument was heard before this court at short calendar on December 22, 2008, where counsel for the plaintiffs conceded that Count three should be dismissed, and that Counts four and six may only stand for purposes of obtaining injunctive relief.¹ Therefore, count three of the plaintiffs' amended complaint is hereby dismissed.

1 The only cause of action from Count three that the plaintiffs address in their memorandum in opposition to the motion to dismiss is their ADA claim. The plaintiffs, however, waived this claim at short calendar.

II 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "The motion to dismiss shall be used to assert (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." (Emphasis added.) Practice Book § 10-31. "Moreover, [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.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005).

In the present case, the defendant moves to dismiss Counts three, ² four, six and seven of the plaintiffs' amended complaint, arguing that the court does not have subject matter jurisdiction to adjudicate the claims because each count is barred by the doctrine of sovereign immunity. Specifically, the defendant argues that while General Statutes § 19a-24 does indeed provide a limited waiver of sovereign immunity for the negligence of certain state officials and employees, it does not waive the state's sovereign immunity with respect to claims of intentional, wanton or willful acts. Accordingly, the defendant argues, because the third, fourth, sixth and seventh counts of the plaintiffs' amended complaint allege intentional acts of discrimination, retaliation and deprivation of rights, respectively, they should be dismissed.

2 Count three has already been dismissed by the court. See above.

In their memorandum in opposition to the motion to dismiss, the plaintiffs counter, arguing that: (1) General Statutes § 46a-99 serves as a waiver of sovereign immunity with respect to count four of their amended complaint alleging retaliation; (2) the defendant, in his official capacity, is a "person" from whom injunctive relief may be obtained for purposes of 42 U.S.C. § 1983; and (3) their cause of action under General Statutes § 17a-238 is valid and not barred by sovereign immunity per D'Amicis v. O'Meara, Superior Court, judicial district of New Haven, Docket No. CV-06-5006612-S (September 20, 2007, Skolnick, J.T.R.) (44 Conn. L. Rptr. 237), and Swan v. Residential Management Services, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-95-0127097-S (June 10, 1996, Sullivan, J.) (17 Conn. L. Rptr. 211). We analyze each claim in order.

A. Counts Four and Six

Counts four and six of the plaintiffs' amended complaint allege retaliatory discrimination and an unspecified violation of the fourteenth amendment of the United States Constitution pursuant to 42 U.S.C. § 1983. While the plaintiffs concede that neither claim may be brought for purposes of obtaining money damages, they argue that both counts should be allowed to stand to the extent that they are seeking prospective injunctive relief.³

3 The plaintiffs' amended complaint does not clarify what type of injunctive relief they are seeking, nor does it specify which count(s) they are seeking an injunction under. Rather, the plaintiffs simply claim "[i]njunctive relief; and [s]uch other relief at law and in equity which the [c]ourt deems just and proper" in their prayer for relief. At short calendar, however, counsel for the plaintiffs indicated that the plaintiffs were seeking prospective injunctive relief on both of these counts.

Our Supreme Court has "long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . [It has] also recognized that because 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 . . ." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 114, 891 A.2d 106 (2006). See also, Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003); Martinez v. Dept. of Public Safety, 263 Conn. 74, 78, 818 A.2d 758 (2003).

Indeed, "[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. The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property." (Internal quotation marks omitted.) Lyon v. Jones, 104 Conn.App. 507, 552, 935 A.2d 201 (2007), cert. granted, 285 Conn. 914, 943 A.2d 472 (2008).

"Nonetheless, our Supreme Court has recognized several limited exceptions to the state's immunity from suit." Manifold v. Ragaglia, supra, 94 Conn.App. 115. "[A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Internal quotation marks omitted.) Lyon v. Jones, supra, 104 Conn.App. 552.

In the present case, the plaintiffs argue that General Statutes § 46a-99 serves as a waiver of sovereign immunity with respect to count four of their amended complaint alleging retaliation. The Appellate Court, however, has recently had an opportunity to examine this issue in Lyon v. Jones, supra, 104 Conn.App. 557, and found that "§ 46a-99 does not constitute a waiver of the state's sovereign immunity with respect to claims for money damages." (Emphasis added.)

Alternatively, the plaintiffs argue that the Count 4 should not be dismissed insofar as it seeks injunctive relief. Section 46a-99 provides, in relevant part: "[a]ny person to be aggrieved by a violation of any provision of sections 46a-70 to 46a-78, inclusive, or sections 46a-81h to 46a-81o, inclusive, may petition the Superior Court for appropriate relief and said court shall have the power to grant such relief, by injunction . . . as it deems just and suitable." (Emphasis added.) Because the plaintiffs have pleaded facts sufficient to indicate that the defendant, through his agents, discriminated against Eric Laliberte in violation of General Statutes § 46a-71, which provides that "all services of every state agency shall be performed without discrimination," the motion to dismiss Count four is granted only to the extent that it seeks money damages. The Count shall remain insofar as it seeks injunctive relief.

Furthermore, "a state official in his or her official capacity, when sued for injunctive relief, [is] a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State." (Internal quotation marks omitted.) Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Accordingly, because the court "must consider the allegations of the [plaintiffs'] complaint in their most favorable light"; (internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007); and the plaintiffs here have in Count 6, broadly pleaded a § 1983 claim, the defendant's motion to dismiss this count is granted only to the extent that it seeks money damages. The Count shall remain insofar as it seeks injunctive relief.

B. Count Seven

Count seven of the plaintiffs' amended complaint alleges a violation of the plaintiffs' rights, privileges and immunities pursuant to General Statutes § 17a-238.⁴ In their memorandum in opposition to the motion to dismiss, the plaintiffs cite to D'Amicis v. O'Meara, supra, 44 Conn. L. Rptr. 237, and Swan v. Residential Management Services, Inc., supra, 17 Conn. L. Rptr. 211, for the proposition that § 17a-238 is not merely a guarantee of proper treatment to persons admitted to the commissioner's care, but rather, it provides a cause of action to said persons when they have been harmed as a result of its violation. The defendant counters, citing to Pattavina v. Mills, Superior Court, judicial district of Middlesex, Docket No. CV-96-0080257-S (August 23, 2000, Higgins, J.) (27 Conn. L. Rptr. 521), for the opposing argument that § 17a-238 does not establish a cause of action separate from that permitted by § 19a-24.

4 Section 17a-238 is entitled "[r]ights of persons under supervision of Commissioner of Developmental Services." General Statutes § 17a-238(a) provides: "No person placed or treated under the direction of the Commissioner of Developmental Services in any public or private facility shall be deprived of any personal, property or civil rights, except in accordance with due process of law." General Statutes § 17a-238(b) provides that "[e]ach person placed or treated under the direction of the Commissioner of Developmental Services . . . shall be protected from harm and receive humane and dignified treatment . . ."

After careful consideration and analysis of the applicable statutes, the court finds the rationale of the Pattavina decision more persuasive, as § 17a-238 does not include any language explicitly establishing a cause of action for persons deprived of the rights enumerated therein. When the state waives sovereign immunity by statute, "a party attempting to sue under the legislative exception must come clearly within its provisions, because [s]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed." (Emphasis added; internal quotation marks omitted.) Babes v. Bennett, 247 Conn. 256, 262, 721 A.2d 511 (1998).

As the defendant notes, the absence of language establishing a cause of action for a violation of the statute contrasts significantly with similar statutes applicable to persons treated in facilities for psychiatric disabilities. Unlike § 17a-238, the psychiatric patient bill of rights expressly provides that "[a]ny person aggrieved by a violation of [ §§ ]17a-540 to 17a-549, inclusive, may petition the superior court within whose jurisdiction the person is or resides for appropriate relief, including temporary and permanent injunctions, or may bring a civil action for damages." General Statutes § 17a-550.

Had the legislature intended to create a cause of action for § 17a-238 violations abrogating the state's sovereign immunity, it could have done so. It is well settled that "[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed . . . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them." (Internal quotation marks omitted.) Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 534, 839 A.2d 1250 (2004).

Furthermore, the plaintiffs make no argument with respect to the viability of this count for purposes of obtaining injunctive relief. Their claim for injunctive relief on this count is therefore deemed abandoned. See Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997) (arguments that are not adequately briefed are deemed abandoned). In addition, they have failed to meet their burden of proving that this court has subject matter jurisdiction to hear this claim. Accordingly, the defendant's motion to dismiss Count seven is granted in its entirety.