Opinion
CV155017039S
09-13-2016
Gary Stocking v. Michael Sullivan et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS, #103
PETER EMMETT WIESE, JUDGE.
I
Procedural History
On November 25, 2015, the plaintiff, Gary Stocking, filed his complaint, alleging violation of state law and federal law by the defendants, Michael Sullivan, Stephen Grant, and Christopher McShane. The plaintiff's complaint does not separate or number the various causes of action, and it is thus difficult to identify these claims. In essence, however, the probationer, Stocking, is seeking punitive monetary damages for the alleged unlawful conduct of the defendants with respect to his probation. Although the plaintiff does not separately number the different claims or parts of the complaint, the four different parts of the complaint are further described below.
The plaintiff filed a motion to amend on June 8, 2016. On June 27, 2016, the court denied the motion to amend, stating: " The Motion to Amend the Complaint is denied without prejudice pending the decision on the Motion to Dismiss."
The first part of the plaintiff's complaint focuses on the alleged unlawful behavior of Sullivan, the plaintiff's probation officer, during office visits. More specifically, the plaintiff alleges that, on March 5, 2014, and on April 22, 2014, he was asked to provide urine samples during his office visits with Sullivan. The plaintiff claims that, as part of the urine sample procedure, Sullivan ordered the plaintiff to drop his pants and underpants, and that Sullivan was able to observe the plaintiff submitting the urine sample because of a mirror. The plaintiff alleges that the urinalysis tests are federal constitutional violations of the fourth amendment searches and seizures, the due process clause, and the right to counsel.
The plaintiff further alleges that Sullivan claimed that he had reasonable suspicion to believe that the plaintiff was providing him with an altered urine sample. More specifically, the plaintiff alleges that Sullivan claimed both that he could not see the plaintiff while he was submitting the sample, and that the plaintiff " manipulated [his] hold" while providing the sample. The plaintiff also alleges that, on April 2, 2014, during another office visit, Sullivan asked the plaintiff about his sexual preferences. The plaintiff claims that this conduct was inappropriate, and that there was no need to assess his treatment needs because the plaintiff was already seeing a trained behavioral health professional. Based upon these allegations, the plaintiff claims that Sullivan violated the eighth amendment to the United States constitution by deliberate indifference to psychological health, and that Sullivan violated the plaintiff's statutory rights to be free from sexual harassment.
This apparently references a suspicion by Sullivan that the plaintiff was providing a false sample.
The second part of the plaintiff's complaint focuses on the alleged conspiracy of Sullivan and his supervisor, McShane, in their alleged illegal arrest of the plaintiff and their conspiracy to have the plaintiff removed from probation. In particular, the plaintiff alleges that he was illegally arrested on June 19, 2014, because there was not sufficient evidence of a criminal act to establish probable cause for an arrest warrant. The plaintiff further alleges that the information in the arrest warrant was based upon falsified information, which constitutes perjury and conspiracy to fabricate evidence, in violation of General Statutes § § 53a-156(a), 53a-48(a), 53a-155(a), and 18 U.S.C. § 241. The plaintiff also claims that these acts constitute a due process violation, as well as libel.
The third part of the plaintiff's complaint alleges that Grant, the Executive Director of the Court Support Services Division, who is responsible for the statewide supervision of probation officers, was informed about Sullivan's illegal actions, but did not respond to the plaintiff's criminal charges. The plaintiff claims that this conduct constitutes conspiracy to hinder prosecution, pursuant to General Statutes § § 53a-48, 53a-167, and 18 U.S.C. § 241.
Grant is identified by the defendants as the Chief Executive Officer of the Court Support Services Division.
The fourth, and final part, of the plaintiff's complaint focuses on the alleged illegal detention at " January Center at 984 on Rt. 32 in Uncasville, CT 06382" (January Center). Although the plaintiff does not name any defendants or other individuals who were involved in the alleged unlawful conduct, the plaintiff claims that he was told that he will be held at the January Center until he admits to the charges against him, despite having filed his fourth motion to correct illegal sentence and a habeas corpus case regarding his illegal conviction. The plaintiff further alleges that he is required to take a polygraph examination as a condition of release, which violates his fifth amendment right against self-incrimination. The plaintiff also claims that state and federal laws are violated, as he is not allowed reasonable privacy for his legal written correspondence because he is not permitted to seal his legal mail.
In paragraphs 11 and 12 of the complaint, the plaintiff alleges further complaints about statements allegedly made by the defendants, and provides further legal analysis. The paragraphs will not be addressed because they do not state a cognizable claim.
With respect to relief, the plaintiff seeks monetary damages against the defendants in their official and individual capacities, at the rate of $10 million each.
On December 23, 2015, the defendants filed a motion to dismiss. On January 4, 2016, the plaintiff filed an objection to the motion. The matter was heard at short calendar on May 23, 2016.
The defendants submitted, as an exhibit, a copy of the transcript of the hearing before Judge Leo Diana regarding the plaintiff's violation of probation. The defendants also submitted as exhibits the plaintiff's criminal case detail, and information regarding the plaintiff's habeas corpus proceedings.
The plaintiff did not submit any exhibits.
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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). Moreover, " [c]laims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). Thus, " a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).
In addition, " [t]he doctrines of sovereign immunity and federal qualified immunity also implicate the court's subject matter jurisdiction." Chapman v. Chapdelaine, Superior Court, judicial district of Tolland, Docket No. CV-12-5005693-S (October 17, 2013, Graham, J.) (56 Coim. L. Rptr. 932, 933, ), citing Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011), and Tuchman v. State, 89 Conn.App. 745, 747, 763, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005); see also Braham v. Newbould, 160 Conn.App. 294, 308-09, 124 A.3d 977 (2015) (affirming the court's dismissal of the plaintiff's federal claims against the defendants in their individual capacities for money damages even though federal qualified immunity was raised sua sponte).
" Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citation omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Id., 651.
" In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 651-52.
" Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). Nevertheless, it is well established that, " in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).
The defendants move to dismiss the plaintiff's complaint for lack of subject matter jurisdiction on the grounds that the plaintiff's claims are: (1) barred by the plaintiff's guilty plea and admission to violation of probation; (2) barred by the prior pending habeas corpus action attacking his probation; (3) barred by sovereign immunity, statutory immunity, and qualified immunity; (4) barred for lack of exhaustion; and (5) barred for lack of personal involvement. This memorandum will first address federal and state sovereign immunity, qualified immunity, and statutory immunity, which all implicate subject matter jurisdiction.
A
Federal Sovereign Immunity
The plaintiff's federal constitutional claims for monetary damages against the defendants in their official capacity are barred by federal sovereign immunity. See Sullins v. Rodriguez, 281 Conn. 128, 139-41, 913 A.2d 415 (2007); Braham v. Newbould, supra, 160 Conn.App. 308-09. As to capacity, under applicable federal law, an unambiguous statement in the complaint regarding the capacity in which the defendants are sued is determinative. See Sullins v. Rodriguez, supra, 141 (" In this case, the plaintiff's complaint is unambiguous. It states that the defendant 'is sued in his individual capacity.' Such an articulation of the defendant's capacity is sufficient to commence a § 1983 claim against a state officer in his individual capacity").
Even though it is difficult to identify the claims in the plaintiff's complaint, viewing the complaint in the most favorable light, it appears that the plaintiff has brought the following federal constitutional claims: violation of the fourth amendment (both the searches and seizures clause and the warrant clause), violation of the eighth amendment (deliberate indifference to psychological health), and violation of the fifth amendment (privilege against self-incrimination). Although the plaintiff makes a passing reference to denial of his due process rights and right to counsel, there are no factual allegations in the complaint regarding the urinalysis test that could plausibly implicate the sixth amendment right to counsel or the fourteenth amendment due process clause. As such, these issues will not be addressed further.
The test set forth in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975), which is used to determine whether a state action against defendants is in the individual or official capacity, is not applicable to federal § 1983 claims. " [A]lthough the test set forth in Spring [v. Constantino, supra, 563, ] and Miller [v. Egan, 265 Conn. 301, 828 A.2d 549 (2003), ] is an appropriate mechanism for our state courts to determine the capacity in which the named defendants are sued in actions asserting violations of state law, to employ that test to divest state courts of jurisdiction to hear otherwise cognizable § 1983 claims would be to erect a constitutionally impermissible barrier to the vindication of federal rights. See Howlett v. Rose, [496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990)]." Sullins v. Rodriguez, supra, 281 Conn. 128.
Here, as stated in the complaint, the plaintiff explicitly brought the action against the defendants in both capacities. Furthermore, the plaintiff only seeks monetary damages. As such, the plaintiff's federal claims against the defendants in their official capacity are barred by federal sovereign immunity.
B
Federal Qualified Immunity
The federal claims against the defendants in their individual capacity may be barred by qualified immunity. " [A] claim for qualified immunity from liability for damages under § 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." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 216, 9 A.3d 347 (2010).
" Under federal law, the doctrine of qualified immunity shields officials from civil damages liability for their discretionary actions as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). 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 . . . Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus, the United States Supreme Court has recognized qualified immunity for government officials [when] it [is] necessary to preserve their ability to serve the public good or to ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service. Wyatt v. Cole, 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992)." (Internal quotation marks omitted.) Brooks v. Sweeney, supra, 299 Conn. 216.
" 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 . . . We recently reaffirmed that lower courts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first." (Internal quotation marks omitted.) Braham v. Newbould, supra, 160 Conn.App. 302, citing Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011).
It is well-established that " [q]ualified immunity shields the defendants only from claims for monetary damages and does not bar actions for declaratory or injunctive relief." Adler v. Pataki, 185 F.3d 35, 48 (2d Cir. 1999). The plaintiff only seeks monetary damages in the present case.
As to the first prong for qualified immunity, " a court . . . is required to articulate the elements of a constitutional violation and, taking the facts in the light most favorable to the plaintiff, determine whether there would be a violation of the plaintiff's constitutional rights under those facts." (Internal quotation marks omitted.) Brooks v. Sweeney, supra, 299 Conn. 217, citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). " This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable." (Internal quotation marks omitted.) Brooks v. Sweeney, supra, 299 Conn. 217, citing Saucier v. Katz, supra, 533 U.S. 201.
The first prong will be addressed first in the present case. As such, in regard to the claims for the alleged violation of the fourth amendment to the United States constitution (both the searches and seizures clause and the warrant clause), the violation of the eighth amendment to the United States constitution (deliberate indifference to psychological health), and the violation of the fifth amendment to the United States constitution (privilege against self-incrimination), the court must first determine whether there would be a violation of the plaintiff's constitutional rights under the alleged facts.
1
Fourth Amendment
The fourth amendment to the United States constitution provides: " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The plaintiff's complaint in the present case implicates both the unreasonable searches and seizures clause and the warrants clause.
a. Searches and Seizures
In regard to the searches and seizures clause, the plaintiff alleges that, during office visits with Sullivan, he was required to submit to an unlawful urine test. The plaintiff further alleges that, at the January Center, he is also not allowed to seal his legal mail before sending it out.
" Searches and subsequent seizures of bodily fluids . . . are subject to typical Fourth Amendment analysis. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Skinner v. [Railway] Labor Executives' Labor [Assn.], 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)." Brewster v. People, United States District Court, Docket No. 08CV4653 (JFB), (E.D.N.Y. January 6, 2010). " The Fourth Amendment protects the right of private citizens to be free from unreasonable government intrusions into areas where they have a legitimate expectation of privacy." (Internal quotation marks omitted.) United States v. Barner, 666 F.3d 79, 82 (2d Cir. 2012). " The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing." Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).
Nevertheless, " [w]ith respect to the extent that constitutional rights should be accorded to probationers, our Supreme Court has recognized that probationers have a diminished expectation of privacy because of their probationary status . . . As with parolees, it may be crucial to the success of a probation program for a probation officer to have access to some information that a probationer may be unwilling to divulge and so a probation officer needs to be able to act in a manner that could not be tolerated if done by a policeman or other agent of the state with respect to an ordinary citizen under the fourth amendment." (Citation omitted; internal quotation marks omitted.) State v. Fuessenich, 50 Conn.App. 187, 195, 717 A.2d 801 (1998), cert. denied, 247 Conn. 956, 723 A.2d 813, cert. denied, 527 U.S. 1004, 119 S.Ct. 2339, 144 L.Ed.2d 236 (1999); see also United States v. Massey, 461 F.3d 177, 179 (2d Cir. 2006) (" [a] parolee's reasonable expectations of privacy are less than those of ordinary citizens . . ." [citation omitted]). " Although the fourth amendment generally requires a warrant based on probable cause before a search occurs, exceptions exist to this requirement when a legitimate governmental purpose makes the intrusion into one's privacy reasonable . . . This is consistent with the diminished expectation of privacy that a probationer . . . is to expect in this governmental program to normalize his relations with society." (Internal quotation marks omitted.) State v. Fuessenich, supra, 195-96.
" [T]he determination as to whether a warrantless parole search was unreasonable and thus prohibited by constitutional proscription must turn on whether the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer's duty." (Internal quotation marks omitted.) United States v. Barner, 666 F.3d 79, 84 (2d Cir. 2012). It is well established that probation officers have a duty to investigate whether a supervisee is violating the conditions of his release. United States v. Reyes, 283 F.3d 446, 459 (2d Cir.), cert. denied, 537 U.S. 822, 123 S.Ct. 106, 154 L.Ed.2d 31 (2002).
In the present case, the plaintiff alleges that Sullivan unlawfully requested that the plaintiff take a urine test, and that the plaintiff was forced to disrobe and provide the sample while in plain view of Sullivan. The defendants have, however, provided the court with a copy of the transcript regarding the September 10, 2014 probation violation hearing. The transcript reveals that, as a special condition of probation, the plaintiff " was obligated to abstain from the use of any alcoholic beverages." (Defendants' Exhibit B, pp. 8-9.) The transcript further shows that, on May 13, 2014, Sullivan was informed that the plaintiff missed four meetings with the substance abuse group. (Defendants' Exhibit B, p. 6.) Finally, the evidence shows that, on June 17, 2014, the plaintiff was found with beer cans in a park, and admitted to drinking the beer. (Defendants' Exhibit B, p. 8.)
The evidence before the court shows that there was sufficient reason for reasonable suspicion that the plaintiff was violating a condition of probation, namely, to abstain from the use of alcohol. Under these circumstances, conducting urinalysis was reasonably related to the probation officer's duty to investigate whether the plaintiff was violating the conditions of his release.
Furthermore, in regard to the manner in which the test was conducted, in the parole and probation context, there is no constitutional prohibition on visual observation by officials of the same sex during urine testing for possible drugs or alcohol in the system. See Tyler v. Barton, 901 F.2d 689, 691 (8th Cir. 1990) (The plaintiff " established no clear constitutional right to be free from visual inspection during urine testing for possible drugs in his system. Persons convicted of crimes, including prisoners, probationers and parolees, while retaining some fourth amendment rights, are subject to greater restrictions on their freedom than ordinary individuals"); but see Baker v. Welch, United States District Court, Docket No. 03CV2267 (JSR) (AJP), (S.D.N.Y. December 10, 2003) (holding, in dicta, that " the law will be considered 'clearly established' in forbidding 'close' observation of a parolee's genitals during a urine test by a parole officer of the opposite sex"). Such visual observation by a probation officer is reasonable because it is related to a legitimate government purpose, namely, " visual monitoring of urine tests taken by parolees may be necessary to ensure a valid, uncontaminated and undiluted sample." Tyler v. Barton, supra, 691. Here, the use of a mirror in order to ensure an uncontaminated sample does not violate the plaintiff's constitutional rights, such as the right to privacy.
Finally, the plaintiff also alleges that his reasonable right to privacy was violated during his stay at the January Center because he was not allowed to seal his legal mail before sending it out, in violation of state and federal law. The Second Circuit has recognized that " there is a general expectation of privacy in letters and other sealed packages delivered through the mail . . ." (Citation omitted.) Veeder v. Nutting, 588 Fed.Appx. 18, 20 (2d Cir. 2014). As previously noted, however, " to the extent that constitutional rights should be accorded to probationers, our Supreme Court has recognized that probationers have a diminished expectation of privacy because of their probationary status." State v. Fuessenich, supra, 50 Conn.App. 195. Moreover, the specific question here is whether there is a clearly established constitutional right to seal legal mail when a probationer is being held in a residential treatment program for adult sex offenders.
The court finds no authority to support the plaintiff's claim. In the absence of any Connecticut or Second Circuit authority on this issue, the right is not clearly established. Thus, the defendants are protected by qualified immunity.
b. Warrant Clause
The plaintiff argues that the constitutional right to be free from arrest without probable cause was violated. In State v. Rodriguez, 27 Conn.App. 307, 312, 606 A.2d 22 (1992), our Appellate Court observed that " [t]he latter part of the fourth amendment, customarily referred to as the warrant clause, makes it apparent that a valid arrest warrant or search warrant may issue only upon a showing to the magistrate that there is probable cause for the arrest or for the search."
Although the plaintiff claims that the probable cause issue involves a due process issue, the right to be free from arrest without probable cause is more appropriately analyzed under the fourth amendment to the United States constitution.
Our appellate courts have also recognized, however, that a probationer generally has more limited rights under the fourth amendment. See generally State v. Fuessenich, supra, 50 Conn.App. 195-96 (" Although the fourth amendment generally requires a warrant based on probable cause before a search occurs, exceptions exist to this requirement when a legitimate governmental purpose makes the intrusion into one's privacy reasonable . . . This is consistent with the diminished expectation of privacy that a probationer . . . is to expect in this governmental program to normalize his relations with society" [internal quotation marks omitted]). Nevertheless, it is assumed that the plaintiff, as a probationer, has the same constitutional rights under the warrant clause as an ordinary citizen.
" While an arrest pursuant to a facially valid arrest warrant is presumed to be made with probable cause . . . [a] plaintiff can demonstrate that this right [not to be arrested without probable cause] was violated where the officer submitting the probable cause affidavit acted with reckless disregard for the truth." (Citation omitted; internal quotation marks omitted.) Martinetti v. New Hartford, 12 Fed.Appx. 29, 32 (2d Cir. 2001). More specifically, " [a]n arrest warrant procured by fraud, perjury or the misrepresentation or falsification of evidence can overcome the presumption of probable cause." (Internal quotation marks omitted.) Id., 33. In other words, " in a civil rights action, to challenge probable cause for a valid search warrant, the plaintiff must make a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause." (Internal quotation marks omitted.) Bristol v. Queens County, United States District Court, Docket No. 09CV5544 (JFB) (AKT), (E.D.N.Y. February 27, 2013), report and recommendation adopted, Docket No. 09CV5544 (JFB) (AKT), (E.D.N.Y. March 18, 2013); see also Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012).
In the present case, the plaintiff alleges that his arrest was illegal because there was no evidence that proved that a criminal act had been committed whereupon probable cause could be determined. The plaintiff further alleges that the arrest warrant was illegal because it was based on falsified information. The plaintiff, however, only alleges these conclusory statements, and does not allege any specific facts as to what information was falsified, or what evidence was presented to the judge that issued the warrant. Furthermore, in Connecticut, in order to issue a proper arrest warrant in the probation context it is not necessary to show that the plaintiff engaged in a criminal act. Instead, the probation officer only needs to show that there is probable cause to believe that the plaintiff has violated any of the conditions of the plaintiff's probation. Here, the transcript of the violation of probation hearing indicates that the court ultimately found that the plaintiff violated multiple conditions of probation, and that the plaintiff even admitted to violating a number of the conditions.
The undisputed evidence submitted by the defendants only states, in relevant part, that Sullivan " drafted a violation of probation warrant and application which was signed by Judge Gold on June 19, 2014 . . ." (Defendants' Exhibit B, p. 4.)
General Statutes § 53a-32 and Practice Book § 43-29 discuss the proper procedure for probation revocation proceedings in Connecticut. In particular, Practice Book § 43-29 requires that probation revocation proceedings, other than those based upon a conviction for a new offence, must be " initiated by an arrest warrant supported by an affidavit or by testimony under oath showing probable cause to believe that the defendant has violated any of the conditions of the defendant's probation or his or her conditional discharge or by a written notice to appear to answer to the charge of such violation, which notice, signed by a judge of the superior court, shall be personally served upon the defendant by a probation officer and contain a statement of the alleged violation." (Emphasis added.)
It is the plaintiff's burden to show that the court has subject matter jurisdiction; Fort Trumbull Conservancy, LLC v. New London, supra, 265 Conn. 430 n.12; and the plaintiff has failed to meet that burden here. In particular, the plaintiff has failed to allege facts or present evidence that would show that the defendants have acted upon an illegal arrest warrant, such as a warrant that is not supported by testimony that would establish probable cause.
2
Eighth Amendment: Deliberate Indifference to Psychological Health
" The Supreme Court, in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), held that the government must provide adequate medical care 'for those whom it is punishing by incarceration.' Id., 103. Because '[a]n inmate must rely on prison authorities to treat his medical needs, ' and because, 'if the authorities fails to do so, those needs will not be met, ' potentially resulting in unnecessary suffering, the Court concluded that 'deliberate indifference to serious medical needs of prisoners' violates the Eighth Amendment. Id., 103-04. The Court in Estelle did not discuss the responsibility of the government to those not in its custody." McGhie v. Main, United States District Court, Docket No. 11CV3 110 (NGG) (JO), (E.D.N.Y. October 12, 2011).
" As there is no sound underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart . . . the deliberate indifference standard of Estelle [ v. Gamble ] is equally applicable to the constitutional adequacy of psychological or psychiatric care provided at a prison." (Citation omitted; internal quotation marks omitted.) Young v. Choinski, 15 F.Supp.3d 172, 184 (D.Conn.), reconsideration denied in part, 15 F.Supp.3d 194 (D.Conn. 2014).
In DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the United States Supreme Court recognized that government officials may have a duty to provide adequate medical care even outside the prison context: " [W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs e.g., food, clothing, shelter, medical care, and reasonable safety it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause . . . The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." (Citations omitted; footnote omitted.) Id., 199-200.
In the present case, at all relevant times, the plaintiff was under supervised release. Although the plaintiff faced certain restrictions to his freedoms as a condition to his release, the plaintiff was not incarcerated. In particular, the plaintiff was able to take care of his own medical needs, including any issues regarding psychological health. Thus, the plaintiff has not alleged a viable claim for deliberate indifference to medical or psychological health. See McGhie v. Main, supra, United States District Court, Docket No. 11CV3110 (NGG) (JO), (holding that the plaintiff, who was under supervised release that included a condition for psychological care, did not state a viable claim under either the eighth amendment or the due process clause because he was " free to find treatment on his own").
3
Fifth Amendment: Privilege Against Self-Incrimination
" The Fifth Amendment provides that no person 'shall be compelled in any criminal case to be a witness against himself.' U.S. Const. amend. V. The privilege permits a person to refuse to answer questions, in formal or informal proceedings, where the answers might be used to incriminate him in future criminal proceedings." United States v. Ramos, 685 F.3d 120, 126 (2d Cir. 2012).
In the present case, the plaintiff alleges that his fifth amendment right against self-incrimination is violated because he is " required to take a [p]olygraph [e]xamination as a condition of [his] release." " The Second Circuit has held that requiring the use of a polygraph examination for a convicted sex offender as a condition of supervised release does not violate the privilege against self-incrimination because polygraph evidence is generally inadmissible, and the individual would be free to challenge that evidence should it be used against him in a future proceeding." Decker v. Hogan, United States District Court, Docket No. 9:09CV0239 (TJM/GJD), (N.D.N.Y. September 28, 2009), citing United States v. Johnson, 446 F.3d 272, 278-80 (2d Cir. 2006). Thus, based upon the applicable law in the Second Circuit, the plaintiff did not allege a viable claim for the violation of the fifth amendment right against self-incrimination.
C
State Sovereign Immunity
The court must address state sovereign immunity because there is a reference to state claims, such as libel and sexual harassment.
Presumably for the purposes of statutory immunity, the plaintiff's complaint also makes passing reference to perjury and conspiracy to fabricate evidence, in violation of General Statutes § § 53a-156(a), 53a-48(a), 53a-155(a), and 18 U.S.C. § 241, and conspiracy to hinder prosecution, in violation of General Statutes § § 53a-48, 53a-167, and 18 U.S.C. § 241. These state and federal criminal provisions do not provide a basis for civil liability. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (holding that 18 U.S.C. § 241, as a criminal provision, does not provide a basis for civil liability); Berry v. Gaston, Superior Court, judicial district of Fairfield, Docket No. CV-01-0383382-S, (October 5, 2004, Dewey, J.) (holding that there is no civil remedy pursuant to General Statutes § § 53a-156 or 53a-155).
" The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty." Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). " We have long recognized the common-law principle that the state cannot be sued without its consent . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer [or agent] concerning a matter in which the officer [or agent] represents the state is, in effect, against the state . . . Therefore, we have dealt with such suits as if they were solely against the state and have referred to the state as the defendant . . . The 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." (Citation omitted; internal quotation marks omitted.) Tuchman v. State, supra, 89 Conn.App. 751.
" If the plaintiff's complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims . . . The fact that the state is not named as a defendant, however, does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent." (Citation omitted; internal quotation marks omitted.) Kenney v. Weaving, 123 Conn.App. 211, 216, 1 A.3d 1083 (2010).
" 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, 123 A.2d 468 (1956)] and as explained further in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975). If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred . . . The criteria are: (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." (Citation omitted; internal quotation marks omitted.) Kenney v. Weaving, supra, 123 Conn.App. 216.
Here, the first Spring criterion is satisfied because the defendants, as probation officers, are state officials. The second criterion is met because the present action involves interactions with the plaintiff that occurred during the course of the defendants' employment, and the claims against the defendants concern a matter in which they represented the state, namely, acting as probation officials. The fourth criterion is satisfied because any judgment against the defendants would operate to control the activities of the state, including the state's policies regarding probation.
The third criterion, whether the state is the real party against whom relief is sought, is the crucial element. The third criterion may be satisfied when " damages sought by the plaintiff are 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, 149 Conn.App. 350, 359-60, 89 A.3d 384 (2014). " Analysis under [the third criterion] requires scrutiny of the complaint because it has been established that the right of a plaintiff to recover is limited to the allegations of [the] complaint . . . The court may also look to the summons for the manner in which the plaintiff references the defendants and the addresses provided for the defendants. Miller v. Egan, 265 Conn. 301, 308-09, 828 A.2d 549 (2003) . . ." (Citations omitted; internal quotation marks omitted.) Hanton v. Williams, Superior Court, judicial district of New Haven, Docket No. CV-09-5030962-S, (June 3, 2011, Wilson, J.).
The present action is based solely on acts that the defendants performed in their official capacity as probation officers, including their conduct during office visits, their arrest of the plaintiff for alleged violation of probation conditions, and the alleged illegal detention of the plaintiff at a residential treatment program for adult sex offenders. In addition, in the summons, only the defendants' work addresses are listed. Therefore, the state is the real party against whom relief is sought, and the third criterion is also satisfied.
Thus, because all four criteria are satisfied, the claims for sexual harassment and libel are really against the state. Even though the four criteria are satisfied, the plaintiff may, nevertheless, avoid the bar of the doctrine of sovereign immunity by showing that a recognized exception applies. " Exceptions to this doctrine [of sovereign immunity] are few and narrowly construed under our jurisprudence." (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). " [T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (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.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009). " In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Internal quotation marks omitted.) Id., 350.
" For a claim made pursuant to the first exception, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotation marks omitted.) Id., 349-50. Furthermore, " [i]n the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." Id., 351. If the plaintiff does not receive authorization from the claims commissioner, then " the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity." (Internal quotation marks omitted.) Tuchman v. State, supra, 89 Conn.App. 752.
In the present case, the plaintiff only seeks monetary damages, and does not request injunctive or declaratory relief. As such, sovereign immunity bars the plaintiff's state claims unless either the state has statutorily waived immunity, or the claims commissioner has authorized the plaintiff to initiate the action for money damages against the state. Here, the plaintiff has not argued, alleged or provided any evidence that the state has statutorily waived immunity, or that the claims commissioner has authorized the plaintiff to initiate the action for money damages against the state. Thus, the defendants are protected by sovereign immunity as to any state claims., ,
When sovereign immunity applies, the court does not need to address statutory immunity. The Supreme Court has held that " where a state official is sued in both her official and individual capacities, if sovereign immunity does not apply to the claim against her in her official capacity, the statutory immunity may then apply to the claim against her in her individual capacity. Thus, before determining whether and to what extent the defendants are shielded by the statutory immunity provided by § 4-165, it is appropriate to determine whether the claims against them are barred by the common-law doctrine of sovereign immunity." Shay v. Rossi, 253 Conn. 134, 162-63, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003). " If the defendants have established their defense of sovereign immunity, they need not demonstrate their compliance with § 4-165." Martin v. Brady, 64 Conn.App. 433, 438, 780 A.2d 961 (2001), aff'd, 261 Conn. 372, 802 A.2d 814 (2002). " [Statutory] immunity provided by § 4-165 does not apply if the doctrine of sovereign immunity does apply." Hultman v. Blumenthal, supra, 67 Conn.App. 620. Likewise, " statutory immunity provided by § 4-165 applies where sovereign immunity does not apply." Shay v. Rossi, supra, 165.
The defendants' alternative arguments will not be addressed because, for the foregoing reasons, there is a lack of subject matter jurisdiction as to all of the plaintiff's claims.
III
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to dismiss all of the claims in the plaintiff's complaint. More specifically, the plaintiff's state claims are barred by sovereign immunity, the plaintiff's federal claims against the defendants in their official capacity are barred by federal sovereign immunity, and the plaintiff's federal claims against the defendants in their individual capacity are barred by qualified immunity.
SO ORDERED.