Opinion
FSTCV175016368S
01-26-2018
Gilbert ORLANDO v. Millicent DICKENS
UNPUBLISHED OPINION
OPINION
POVODATOR, J.
Background and Legal Principles
This is a lawsuit brought by the self-represented plaintiff, arising from a situation characterized as involving identity theft. In that regard, this case has at least two probably unique aspects- there is no claim of any financial harm to the plaintiff, but instead of that form of near-universal claim of adverse consequences, this instance of claimed identity theft led, at least in part, to the deaths of two people. See, State v. Orlando, 163 Conn.App. 155, 134 A.3d 708 (2016).
The defendants in this case are Stamford Hospital, the facility where medical care was provided to a relative of the plaintiff’s using his identity without the plaintiff’s knowledge, and three additional defendants (including a former sister-in-law of the plaintiff) who are or were employed by the hospital at some claimed-to-be-relevant time. Currently before the court are two motions for summary judgment filed by all defendants, both motions asserting that the action is barred by the relevant statutes of limitation.
The motion filed by defendant Dickens adopts and incorporates the motion filed by the other defendants. Except as may be required, the court’s reference to the defendants collectively relates to all defendants to the extent that they rely on a single submission, both as to evidence and argument.
The court must read the complaint in a common-sense manner- broadly and realistically, Williams v. Housing Authority of the City of Bridgeport, 327 Conn. 338, 372 (2017). There is an overlay arising from the status of the plaintiff as a self-represented party- this court is cognizant of the cautionary appellate statements relating to pleadings filed by self-represented parties:
" [C]onstruction of a self-represented party’s pleading should not focus on technical defects, but should afford the [appellant] a broad, realistic construction of the pleading under review." Macellaio v. Newington Police Department, 145 Conn.App. 426, 431, 75 A.3d 78 (2013) (internal quotation marks and citation, omitted).
" Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties. Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice; the purpose of which is to provide a just determination of every proceeding." Argentinis v. Fortuna, 134 Conn.App. 538, 539, 39 A.3d 1207 (2012) (citations and internal quotation marks, omitted).(See, also, per curiam decision in Hill v. Williams, 74 Conn.App. 654, 655, 813 A.2d 130 (2003).)
In connection with a motion for summary judgment, the court is charged with determining whether there are any outstanding material issues of fact relating to the issues claimed to be dispositive. The court’s function is not to resolve any such issues, but rather simply to recognize whether they exist. Here, the defendants are claiming that the complaint is barred by applicable statutes of limitation, and that there is no factual issue in that regard.
Procedurally, the court notes that the motions for summary judgment were filed in June and July 2017; the motions eventually appeared on a calendar on October 16, 2017 at which time the court was asked to decide the motions " on the papers" (without argument). As of the writing of this memorandum of decision, the plaintiff has not filed any objection to either motion.
Notwithstanding the absence of any objection, the court still is required to determine whether the presentations of the defendants establish the absence of any material issue of fact- until a moving party carries its burden in that regard, the non-moving party has no burden of responding.
[W]e note that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.(Internal quotation marks and citation, omitted.) Romprey v. Safeco Insurance Company of America, 310 Conn. 304, 320 (2013).
Discussion
The defendants rely on the claimed expiration of the statutes of limitation relating to negligence and non-negligent torts, General Statutes § § 52-577 and 52-584. The process of evaluating applicability of a statute of limitations necessarily involves a timeline- it generally starts with the underlying events running through the commencement of the litigation, and measures the elapsed time against the appropriate limitations period, to see whether the limitations period has been exceeded (subject to possible adjustments, e.g., delayed discovery of a negligence claim). Consistent with the somewhat unique nature of this case, identifying the relevant underlying events is not as simple as usually is the case.
The complaint alleges certain conduct occurring in 2016, and the defendants opine that that is something in the nature of a mistake (typographical error?), contending that the appropriate reference date is in 2006. Consistent with the court’s obligation to read a self-represented party’s pleadings in a realistic manner, it appears that at least in part, the plaintiff is reciting recent efforts to seek some form of official reaction to the identity theft. Thus, attached to the complaint are letters reflecting his efforts in 2012 and 2014 to obtain more information about, and/or an official response to, his claims. He also has attached medical records that do reflect that the underlying events occurred in 2006, but that is not necessarily determinative- there could have been a continuing course of conduct, or affirmative efforts to hide what had happened, so as to potentially extend the triggering of the running of a statute of limitations. Further, it is not just the actual identity theft that is the focus of the complaint, but rather also (instead?) it is the seeming lack of any form of repercussions from the identity theft when reported by the plaintiff.
In the context of a motion for summary judgment, the issue is not a review of the clarity or organization of a complaint, but rather whether the moving party (the defendants) can establish that they are entitled to judgment as a matter of law, based on essentially undisputed facts (no material issue of fact). Therefore, it is not controlling whether the complaint itself (perhaps mistakenly) refers to 2016- or 2014 or 2012- the issue is whether the cause of action accrued and could/should have been brought more than three years prior to the date it actually was brought.
Section 52-577 provides for a three-year limitation period in connection with torts in general; § 52-584 allows two years for a negligence-type claim, but up to three years in the case of delayed discovery.
In support of the motion, the defendants have submitted an affidavit from a representative of defendant Stamford Hospital, to which are attached a number of letters from the plaintiff, in 2012, relating to the identity theft that had occurred in 2006. In addition, counsel for the defendants submitted an affidavit attesting to the accuracy of a printout from a Judicial Branch website reflecting the criminal history of the plaintiff, and a newspaper article relating to the defense that had been asserted by the plaintiff in connection with that criminal prosecution. Absent any objection from the non-moving party (the plaintiff), the court would be permitted to consider hearsay content such as a newspaper article. However, the court " prefers" to rely on a more authoritative source for similar information, i.e. the Appellate Court decision in connection with an appeal of the conviction of the plaintiff for the two homicides:
The following procedural history and facts, which the panel reasonably could have found, are pertinent to our review. On June 14, 2010, the defendant went to the home of his former wife, Enid Dickens, where a dispute began between them. This dispute arose out of the fact that locks had been changed at the home the defendant had formerly occupied and his claim that Dickens had enabled her brother to steal his identity, who then used the defendant’s identity to pay for his medical bills. After this argument at the home became heated, and Dickens attempted to hit the defendant with a lamp, he pulled out a gun and shot both his wife and his mother-in-law, Rona Knight, causing their deaths.State v. Orlando, 163 Conn.App. 155, 157, 134 A.3d 708, 710 (2016).
Thus, the court does not have to rely upon the lack of objection to a hearsay source such as a newspaper article- there is an " official" recitation of the background of the homicides, recounting the identity theft being known to the plaintiff as of June 14, 2010, and in the body of the decision identifying the plaintiff’s reaction to the identity theft as part of the planned/proffered defense in the criminal prosecution of extreme emotional disturbance; see, e.g., 163 Conn.App. 160 (a defense that was found to have been proven, id., 158-59).
Therefore, while the majority of evidence presented by the defendants establish the plaintiff’s knowledge of the alleged identity theft at least as early as 2012, the plaintiff knew of the alleged identity theft no later than the middle of 2010, the time of the two homicides motivated, at least in part, by his knowledge of that identity theft.
Therefore, while the plaintiff may have continued trying to seek some form of recourse long after his conviction, extending into the 2014 and perhaps even 2016 time frame, any cause of action that might have accrued had accrued no later than 2012, and probably no later than the homicides in 2010. The record reflects his complaints being made in 2012, so that even if it is the lack of response to his complaints that is the focus of his claims- rather than the actual acts constituting identity theft in 2006- more than four years elapsed between the conduct (lack of response to his claims) and the commencement of this proceeding. To the extent that there is no apparent authority for the proposition that a victim of identity theft has an enforceable right to insist that there be employer-based repercussions for identity theft when an employee had been involved, or that there is a right to insist that criminal complaints be filed, the proper focus would revert to the events in 2006, and again, it is clear that the plaintiff was aware of the identity theft itself no later than 2010.
It is clear, then, that the plaintiff was aware of the claimed tortious conduct more than three years prior to commencement of this action, whether measured by the date on which process was signed by a clerk (January 4, 2017) or the later, more typical benchmark date of the date of service (January 23, 2017).
Apparently anticipating possible reliance upon General Statutes § 52-593a, the defendants sometimes formulate the terminal date as the date on which the suit papers were delivered to a marshal for purposes of service, which presumably would have been a date after the process was signed by the clerk but before actual service.
The court must note that implicit in the foregoing discussion is an impediment to the usual manner of determining the initial date that starts the running of the statute of limitations- it has not been raised by the defendants and therefore cannot be a basis for the court’s decision, but nonetheless makes it necessary for the court to " work around" the problem. Ordinarily, the statute of limitations begins to run
when a party suffers some form of actionable harm ... Actionable harm occurs when the plaintiff discovers ... that he or she has been injured and that the defendant’s conduct caused such injury ... The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof ... The focus is on the plaintiff’s knowledge of facts, rather than on discovery of applicable legal theories.(Internal quotation marks and citations, omitted.) Wojtkiewicz v. Middlesex Hospital, 141 Conn.App. 282, 287, 60 A.3d 1028, 1031 (2013).
The problem here is that it is not at all clear that the plaintiff ever suffered any actual actionable harm- the only identified " harm" is that his brother-in-law utilized his insurance coverage for medical treatment, but there is no claim or indication that the plaintiff ever had to pay anything himself, or that his credit was adversely affected, or anything else that might be cognizable as a form of harm. At most, then, it appears to have been a " technical" harm, but coming full circle, that technical harm would have been done at the time of the medical treatment and payment by the insurance company, years before the homicides and everything else of consequence.
A review of the allegations of the complaint reflects the focus on failures to investigate, failure to sanction responsible employees, etc., with no claim of actual injury to the plaintiff.
In paragraph 7 of the complaint, the plaintiff asserts that there was a fraudulent representation when defendant Lawler claimed that she had referred the plaintiff to the police to report the claim of identity theft and had notified the police department accordingly. (Assuming such fraud, what was the harm to the plaintiff?)
Paragraph 8 recites that two of Stamford Hospital’s employees " misrepresented cooperating and forwarding allegations of identity theft of an employee Millicent Dickens to Stamford Police Department for investigation and prosecution." (Assuming such misrepresentations, what was the harm to the plaintiff?)
Paragraph 9 recites that defendant Dickens " committed negligence per se against her employer Stamford Hospital and the Plaintiff Gilbert Orlando in fraudulently representing to her employers someone that was not the Plaintiff Gilbert Orlando, was the Plaintiff to receive medical treatment at Stamford Hospital." (What was the harm to the plaintiff from any misrepresentation to the Hospital? As already noted, there is no claim of actual harm to the plaintiff from the identity theft or this specific claim of fraudulent representation, which necessarily must have occurred in the 2006 time frame.)
Paragraph 10 recites that the plaintiff notified the defendant " of intention to sue Stamford Hospital for failing to report to the Stamford Police Department its employee Millicent Dickens of identity theft." (Assuming such notice and failure to report, what was the harm to the plaintiff?)
In the claims for relief, the plaintiff indicates that he is seeking a monetary recovery against defendants Stamford hospital and Millicent Dickens " for negligence in their duties to properly investigate, reprimand and cooperate with the Stamford Police Department in determining the fraudulent action of its employee Millicent Dickens pertaining to identity theft." (Assuming such negligence, what was the harm to the plaintiff? There is no claim of injury resulting from the identity theft, itself.)
Nowhere is there any recitation of any harm to the plaintiff in any personal sense- no monetary loss or adverse impact on his credit rating or any other cognizable harm. Assuming that non-pecuniary, non-financial injury is what really is being claimed, the sense of outrage at the use of his identity was known and manifested no later than June 2010 when that emotional state contributed to his shooting/killing his ex-wife and her mother.
The burden on the moving party is to establish, at least in a prima facie sense, that based on undisputed facts (absence of any material issue of fact), the moving parties are entitled to judgment as a matter of law. The defendants have established that any possible harm that might have been sustained was sustained and known to the plaintiff well over three years prior to commencement of this proceeding around January of 2017- certainly going back to 2012 and although perhaps not as well documented, probably as certainly going back to 2010 (and earlier). There is no suggestion of a possible basis for a claim of actual concealment- rather, it was a lack of action that met the plaintiff’s expectations that appears to have been the problem. (No criminal prosecution was started, no disciplinary action was taken by Stamford Hospital against its employees, etc.)
There is no suggestion of any continuing course of conduct or continuing relationship that might toll the running of the statute of limitations. The plaintiff has filed a reply, in which he admits knowledge of the underlying conduct in 2012 (# 105.00) but seems to rely on the absence of any report by the hospital to the police as a validation of a later date for commencement of the limitations period. He also explicitly states as a form of reply to the special defenses raising the statute of limitations defenses that " Statute of limitations have not ran out cause the law suit brought against the defendants was filed in 2012 when the plaintiff discover the negligence. Also there is blood work [involved?] in this matter." Again, this is an admission of knowledge/awareness in 2012, and in the absence of some as-yet unidentified connection between this lawsuit and an earlier lawsuit, e.g., reliance on an accidental failure of suit statute such as General Statutes § 52-592, this does not create any material factual issue, even assuming it were to be treated as a factual submission (equivalent of an affidavit), as opposed to a pleading.
There is no clear indication as to what is intended by a reference to " blood work" - the only connection that the court can imagine is that records pertaining to " blood work" might be able to verify that the plaintiff was not the patient being treated in 2006. (It appears that in his reply, the plaintiff inadvertently refers to General Statutes § 52-594 as a relevant statute of limitations rather than § 52-584.)
The court has been unable to find any indication of any such prior action being brought in the Connecticut court system; no specific citation or reference has been provided by any of the parties.
Note that even if the failure of authorities to investigate or act was a cognizable injury, the plaintiff was aware of that situation in 2012- and 6 years already had elapsed since the actual " identity theft" had occurred.
Conclusion
In a misguided attempt to assist their brother in obtaining necessary medical treatment, in or around 2006, the plaintiff’s then-wife and a sister employed at Stamford Hospital facilitated the brother’s use of the plaintiff’s identity- effectively, his insurance- to pay for the treatment. As reflected by the homicides, the 2012 documentation submitted by the defendants, and the plaintiff’s continuing efforts (into 2014 and later) to get someone to do something about it, the plaintiff is fixated on the need for someone to be punished, and cannot accept that the police, the insurance company, the hospital as provider of medical services, and the hospital as employer of at least one of the participants in the identity theft scheme, have not seen fit to insist on or take some form of official action.
Any injury suffered by the plaintiff would have been sustained no later than 2012, when his efforts to bring the matter to the attention of the police and Stamford Hospital were in full swing and well-documented. This implicitly assumes that the failure of these entities to take action could, in some sense, constitute a compensable injury. (To the extent that this is directed to his former sister-in-law, that is tantamount to a claim that she owed him a duty to ensure that action was taken against her because of her complicity in the underlying identity theft.) The plaintiff cannot re-initiate the running of the statute of limitations by repeatedly complaining to the police and the hospital that something needs to be done about the identity theft which occurred in 2006, and then (implicitly) claim that a new limitations period commenced with the latest round of complaints. (Note that pursuant to General Statutes § 54-193, the statute of limitation for any criminal prosecutions arising from the identity theft in 2006 has long since expired, and already had expired (at least facially) as of his complaints in 2012 (general felony limitation period is five years, and misdemeanor limitation period is one year).
The defendants have established that any possible cause(s) of action accrued no later than 2012 and that the plaintiff was amply aware of the claimed identity theft in or before that year, as reflected by his numerous letters in that timeframe (and the homicides, 2 years earlier). Any injury he might have suffered as a result of the failure to investigate or otherwise take action was sustained, again, in 2012 if not earlier. This proceeding was started in early 2017, more than four years later, and even if the date of commencement were to be " adjusted" so as to be the date on which the application for fee waiver was submitted (early September 2016) that would still be some four years after the extensive 2012 correspondence from the plaintiff, attached to the affidavit of Ruth Cardiello.
For all these reasons, then, the motions for summary judgment are granted, the defendants having established that the plaintiff’s claims are barred by the applicable statutes of limitation- § 52-584 as to claims of negligence, and § 52-577 as to other claims of tortious behavior (fraud, identity theft).