Opinion
No. CV 03 0482928
September 14, 2004
MEMORANDUM OF DECISION
This complaint was initially brought in September 2003 in two counts for medical malpractice in the treatment given to an inmate of the New Haven Correctional Center. The defendants through counsel filed thorough briefs in support of motions to strike and dismiss the second count against certain state employees allegedly involved in the malpractice. There has not been objection to the first count insofar as it asserts a medical negligence state law action against the state itself. The second count was brought under 42 U.S.C. § 1983. In its motions the basic contention is that this § 1983 action and the § 1988 request for attorneys fees under § 1988 are not viable "as the state its agencies and employees in their official capacities are not `persons' under § 1983." In fact in the second count various individuals are sued in their "official capacities." But the Federal Supreme Court has held that "a suit against a state official in her official capacity . . . should be treated as a suit against the state." Hafer v. Melo, 502 U.S. 21, 24-25 (1991). § 1983 explicitly says, " Every person, who, acting under color of any statute, regulation, custom of usage, of any state or territory, subjects . . . any citizen . . . to the deprivation of any rights . . . shall be liable to the party injured . . ." (Emphasis added.) But the Supreme Court has also said that because of the States' sovereign immunity and the Eleventh Amendment it cannot construe the word "person" in § 1983 as including a state or its agencies. Will v. Michigan Dept of State Police, 491 U.S. 58, 65 (1989), Kruzser v. New Haven, 212 Conn. 412, 417 (fn5) (1989). The logic of all this is that the second count as phrased must be stricken and/or dismissed.
The defendants also claim the plaintiff has failed to allege that he exhausted his administrative remedies so that all claims except those relating to diagnosis and treatment should be dismissed.
Finally, it is argued that the complaint should be stricken as to any unnamed parties as such a practice is not permitted under Connecticut practice.
(a)
The plaintiff does not dispute the defendant's position that a § 1983 action will not lie against state employee acting in their "official capacity." It seeks to avoid dismissal of the second count by having filed a request to amend the complaint which purports to make a claim against various individuals in their "individual capacity." The defendant objects to this on the grounds that a motion to dismiss asserting lack of subject matter jurisdiction over the second count's § 1983 action is pending — this court would not have subject matter jurisdiction over § 1983 claims against the state. Pinchbeck v. Dept. of Health, 65 Conn.App. 201 (2001), and Gurliacci v. Mayer, 218 Conn. 531 (1991), are cited for the proposition that a motion to dismiss of this nature must be heard before a request to amend may be considered by the court. Also see FDIC v. Peabody N.E, Inc., 239 Conn. 93, 99 (1996).
The plaintiff says this line of cases does not apply since "the naming of these defendants in their official rather than their individual capacities is a misnomer which may be cured pursuant to general statutes § 52-123."
That statue provides that:
No writ, pleading, judgment of any kind of proceeding in court or course of justice shall be abated, suspended, set aside or revised for any kind of circumstantial errors mistakes or defects, if the person and the cause may be rightly understood and intended by the court.
The plaintiff cites Andover Limited Partnership v. Board of Tax Review, 232 Conn. 392, 396 (1995), to the effect that § 52-123 is a remedial statute and thus must be "liberally construed." The statute can be invoked if the error is circumstantial and the statute replaces the "common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer or misdescription in an original writ summons or complaint," id. pp. 396-97. Andover Limited quoted the quite liberal language of Lussier v. Dept. of Transportation, 228 Conn. 343 (1994), which said "a misnomer must be distinguished from a case in which the plaintiff has misconstrued the identity of the defendant rather than the legal nature of his (her) existence. When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misidentification is a misnomer." Andover Limited was an action challenging a decision by the board of tax review of the town affirming a tax assessment. The plaintiff named the board as the defendant rather that the town as the statute requires. The court went on to say the town was not prejudiced, it accepted service, answered the complaint and even attempted to settle the dispute. It was only after these events that a motion to dismiss was filed. But interestingly the court at one point said it is "evident" that the town not the board was the intended defendant. These more modern cases really hark back to the liberal language of a much older case World Fire Marine Ins. Co. v. Alliance Sandblasting, Co., 105 Conn. 640, 643 (1927), where the court upheld that trial court's action of permitting the plaintiff to amend the complaint from stating the defendant was the Alliance Sandblasting Company to the designation "Julius Goodman doing business under the name of the Alliance Sandblasting Company." In upholding the trial judge the court said
the plaintiff's mistake was not as to the entity itself, not as to the party sued, but in describing what kind of an entity the defendant was; it sued the proper party but in so doing misdescribed the party, not in respect to name but solely as to status, as being an artificial instead of a personal entity.
Park v. Burns, 212 Conn. 381, 385 (1989), referred to a Nevada case as offering a guideline in deciding whether an amendment just corrects a misnomer rather than substitute a new party, Servatius v. United Resources Hotels, 455 P3d 621 (1969). There the court said:
there appears to be three factors governing the determination when a `proper defendant' might be brought into an action by amendment even though the statute of limitations might have run. They are that the proper party defendant (1) have actual notice of the institution of the action (2) knew that it was the proper defendant in the action and (3) was not in any way misled to its prejudice. CT Page 13767
455 P.2d at p. 373.
Here except for one defendant whose situation will be discussed later, each of the personally identified defendants were served so they had notice of the action, the attorney general's office entered an appearance, and knew or should be held to know that a § 1983 action was not viable against them in their "official capacity." The actual allegations of negligence are the same in the original complaint and the revised complaint. The suit is less than eleven months old. Broad claims of prejudice are made regarding new facts and legal issues that must be explored but it is not even clear that any discovery has been pursued — motions to strike and dismiss were filed within less than two months of the October 28, 2003 return day. It is true that official capacity suits "generally represent only another way of pleading an action against an entity of which an officer is an agent," Morrell v. New York City Dept of Social Services, 436 US 658, 690 fn 55, but the scope of employment issue is removed from the litigation by the amendment, and the color of state law question remains a constant in this § 1983 litigation. The "new allegation" of exhaustion of administrative remedies is only ancillary to the cause of action and the "new allegation" of an Eighth Amendment violation relies on the same factual allegations set forth in the original complaint — reference is merely a new remedial claim. By way of analogy to the federal relation back doctrine under Rule 15(c) one commentator has noted that: "The fact that an amendment changes the legal theory on which the action was originally brought is of no consequence if the factual situation upon which the action depends remains the same and has been brought to defendant's attention by the original pleading," Federal Practice and Procedure Wright, Miller Kame, Vol 68, § 1497, pp 94-95; see cases cited at footnote 40. The court will permit the revised complaint based on the foregoing discussion.
2.
The defendants object to the plaintiff's attempt to amend the complaint which adds a claim of violation of Eighth Amendment rights against cruel and unusual punishment. As just discussed the court will allow this amendment under application of the relation back doctrine; we follow federal procedure under Rule 15c. Shain v. Mitchell, 209 Conn. 59, 72 (1988), and the district courts would allow such an amendment as this since it relies on factual claims already made and simply asserts a new remedial theory. In fact the liberal view of the federal courts is expressed in a very early case, Barthel v. Stamm, 145 F2d 487, 491 (CA5, 1944).
When suit is filed in a Federal Court under the rules, the defendant knows that the whole transaction described in it will be fully sifted, by amendment if need be, and that the form of action or the relief prayed for on the law relied on will not be confied to the first statements.
The defendants argue, however, that the § 1983 claim is "not cognizable," in any event; there must be deprivation of a federal right because under § 1983 one necessary allegation is "that some person deprived him (her) of a federal right." Gomez v. Toledo, 446 U.S. 635, 640 (1980).
But as Brock v. Wright, 315 F3d 158 (CA 2, 2003), makes clear a § 1983 action can be brought for violation of the eighth amendment. A plaintiff must meet two conditions under such a theory where medical treatment is claimed to be improper or inadequate. It must be shown (1) that the medical condition is objectively a serious one and (2) a defendant acted with deliberate indifference to the plaintiff's medical needs. Id. at page 162. The defendants have not addressed the legal sufficiency of the complaint's allegation to meet these criteria. The amendment is allowed and the § 1983 claim is legally sufficient.
3.
The defendants also argue that the original complaint and the amended complaint (if it were to be allowed) should be dismissed as to unnamed parties listed therein. The unnamed parties listed as Jane and John Doe were "collection officers" employed by the state.
The defendants argue that the majority of trial courts addressing this issue have held that the naming of a Jane or John Doe defendant in a complaint and summons is not proper because our state "does not have a general fictitious name statute, nor is it authorized by the practice book."
Judge Blue wrote an excellent opinion on this issue in Brock v. A-A Auto Service, Inc., 45 Conn.Sup. 525, 23 Conn. L. Rptr. 527 (1998). The court has also read the opposite view in Tremblay v. Webster, 1995 WL 93405 (J.D. New London, 1995). The court finds Judge Blue's detailed reasoning convincing and will not repeat the opinion which is published in the Connecticut Supplement. It is true that Tremblay in ruling as it did made an observation which causes concern:
. . . it would seem a miscarriage of justice to allow the John Doe troopers to escape potential liability merely because the plaintiffs do not know, at this time of the alleged scuffle, the name of their attackers. To dismiss the action at this juncture might encourage state officers to hide their identities from the very people they are obligated to protect.
But as Judge Blue notes § 52-45a of the general statutes provides that civil suits shall be commenced by process "describing the real parties." In dicta the court in Buxton v. Ullman, 147 Conn. 48, 59 (1959) stated "that this requirement `presumably, refers to a description of the parties' by their real names, so that they may be identified." There are post-commencement of suit motions permitting, per Buxton, anonymous status for identified parties or even presuit procedures requesting permission to be allowed to proceed by anonymous designations but these are cases where the real parties are in fact known.
Furthermore, Tremblay's concerns are largely allayed by the fact that post-suit discovery of existing parties and other state employees could be used to ascertain the identity of these unknown employees who can then be brought into the litigation. Even beyond that as noted in Vol. 1 of the Connecticut Practice Series, Horton and Knox in their commentary to PB § 13-2 at page 548: "If discovery must be had before a law suit is commenced (such as to determine the identity of the defendant, the ancient bill in equity is still viable," Berger v. Cuomo, 230 Conn. 1 (1994), is cited. Even if sovereign immunity arguments would prevent such explorations, as Judge Hodgson suggested the Freedom of Information Act § 1-18a et seq., could be resorted to by counsel, see Dempsey v. Haggerty, 14 Conn. L. Rptr. 309 (Hodgson, J., 1995).
In any event the plaintiff should not be permitted to continue suit against John and Jane Doe defendants and the second count is dismissed against any such defendants.
4.
The amendment is also opposed insofar as it purports to add a new defendant after the statute of limitations has run. Given our liberal amendment practice it has been held that "a ruling of a motion to amend should not be a vehicle to decide an issue of law." Horton Knox, supra comment to P.B. § 10-60, page 500; see Solomon v. Liquor Control Commission, 8 Conn.Sup. 511 (1940); but see Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161-63 (1983). Perhaps more to the point a statute of limitations issue is usually raised by a special defense unless the parties agree to having the issue decided on the merits, or all facts necessary to decide it are apparent on the record or when the complaint anticipates the defense, see Knox Horton, comment to P.B. § 10-50, page 482. The court will not deny the amendment as to this defendant.
5.
The defendants also argue that the second count should be dismissed because the plaintiff failed to exhaust his administrative remedies while he was an inmate. Pursuant to the Prison Litigation Reform Act of 1995, 42 USC § 1997c(a), Porter v. Nussle, 534 U.S. 516, 524 (2002); exhaustion is required whenever the suit is based on an alleged violation of federal rights. The defendants have attached an "Inmate Grievance" document which is made available to all prisoners. This document at one point says "The following matters are not grievable" and says in subsection 6 of 6B "Health services diagnosis or treatment." But section 14 says " Medical grievances. All health care related grievances shall be placed in a box designated for health services grievances and shall be processed by the designated Health Services Grievance Coordinator." It is difficult to make sense of this. The only explanation the court can arrive at is by reference to section 6A which states the "following matters are grieveable. Subsection 5 of 6A then says `Any other matter relating to access to privileges, programs and services, conditions of care or supervision and living unit conditions." Reviewing all these provisions together it might be said that a harmonious interpretation of all of them would permit a grievance defined as a "health care related grievance only where any and all access to medical treatment was denied including access to any medical diagnosis or the formulation of any treatment plan, or the denial of any medical consultation. These are not the allegations made here.
Perhaps even more to the point at the core the justification of the exhaustion of administrative remedies doctrine is the notion that: "Litigants may not, by refusing or neglecting to submit issues of fact to administrative agencies, bypass them and call upon the courts to determine matters properly determinable originally by the agencies," 2 Am.Jur.2d, "Administrative Law" § 476, page 403. Where, as here, the regulations involved are confusing and difficult to understand regarding the issue of whether the grievance procedure is available, the exhaustion doctrine should not be held to apply. How can an inmate be held to have waived any rights to an administrative procedure which is so confusing in setting forth these rights.
Furthermore, the plaintiff here seeks monetary relief which is not provided for in section 7 of the "Inmate grievances" document entitled "Disposition and remedy. Query whether exhaustion under the federal legislation applies when an inmate is seeking monetary relief. There would have been nothing to prevent the state from providing such relief through the grievance procedure. Cf. Whitley v. Hunt, 158 F3d 882, 887 (CA5, 1998). The court for the foregoing reasons will not dismiss the second count for failure to exhaust administrative remedies. The only aspect of the defendants' motions granted by the court is the request to dismiss the claims made against Jane and John Doe defendants.
The court (and perhaps not the litigants) is somewhat confused as to the status of the first argument made in the defendants' March 30, 2004 brief. Is it still being pursued as to court one? The plaintiff did not respond to it in her objection to the defendants' motions. Also the court is not sure it has the correct attached notice to the claims commissioner. If further argument is requested on this issue please contact my clerk and it will be set down on short calendar.
Corradino, J.