Opinion
No. CV04-0200464-S
January 10, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS ( # 103) AND OBJECTION TO REOUEST TO FILE AMENDED COMPLAINT ( # 105)
FACTS
On April 30, 2004, the plaintiff, Juliana Weitz, filed a one-count complaint against the sole defendant, the "Greenwich Police Department." Service of process was made upon James Walters, Greenwich Chief of Police. Chief Walters in not named as a defendant. According to the plaintiff's complaint, this action arises out of an incident that occurred on April 15, 2002, where Greenwich police officers arrested the plaintiff at her home. The plaintiff asserts that the officers used excessive force causing her to fall down a flight of stairs, they falsely arrested her, photographed her, fingerprinted her, and caused her injury and extreme emotional distress. The plaintiff alleges claims against the defendant for false arrest, false imprisonment, use of excessive force by the police officers and claims that this conduct physically injured her and caused her extreme emotional distress.
It should be noted that the plaintiff is pro se.
On June 10, 2004, the defendant filed a motion to dismiss the complaint on the grounds of lack of subject matter jurisdiction and insufficiency of process, accompanied by a memorandum in support. No opposing memorandum was filed by the plaintiff, however, she did file a request to amend her complaint on June 17, 2004. The defendant filed an opposition to this request on June 29, 2004.
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "The grounds which may be asserted in [a motion to dismiss] are: (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." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "[I]n ruling on a motion to dismiss, the trial 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.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003).
Although the motion to dismiss speaks in terms of lack of subject matter jurisdiction, the defendant's arguments in support of the motion are more appropriate to a claim of lack of jurisdiction over the person, and the court will consider the arguments as to whether or not the court has personal jurisdiction over the defendant.
In support of its motion, the defendant argues that the Greenwich Police Department cannot be sued since it cannot be held liable as an "independent legal entity." The defendant cites federal cases in which hold under both state law and federal law that sheriff and police departments are not subject to suit for civil rights violations under 42 U.S.C. § 1983. For instance, in Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992), aff'd, sub nom. Dean v. Bailey, 12 F.3d 219 (11th Cir. 1993) the court held that an Alabama sheriff's department did not have the capacity to be sued under the law of Alabama. And in Reed v. Hartford Police Department, 2004 WL 813028 (D. Conn), the issue was whether or not the Hartford Police Department could be sued for federal civil rights violations. The court (Underhill, J.), in dismissing all claims against the Hartford Police Department, said: "A municipality is subject to suit pursuant to 42 USC § 1983. A municipal police department, however, is not a municipality. Rather, it is a sub-unit or agency of the municipal government through which a municipality fulfills its policing function. Because a municipal police department is not an independent legal entity, it is not subject to suit under Section 1983." (Internal citations omitted.) Although none of these federal cases were decided under the state law of Connecticut, the court nonetheless finds them instructive.
Under Connecticut law municipalities (defined as any town, city or borough, consolidated town and city, or consolidated town and borough), such as the Town of Greenwich, have the capacity to sue and be sued . . . Connecticut General Statutes §§ 7-148(a), 7-148(c)(1), and 52-73. Clearly, the Greenwich Police Department is not a "municipality." Municipalities also have the power to "[p]rovide for police protection and regulate and prescribe the duties of the persons providing police protection . . ." Connecticut General Statutes § 7-148(c), but there is no provision providing that municipal police departments constitute a legal entity separate and apart from the municipality they serve, or that they have the power to sue or be sued. It is the general rule that only "where a municipal department is an independent corporation, with capacity to sue and be sued [should] actions on its separate obligations or liabilities . . . be brought by it or against it in its own name and not in the name of the municipality." McQuillan, Municipal Corporations, § 49.16.
Under certain circumstances a "political subdivision of the state" can be liable for the negligent acts of its officers, employees or agents. Connecticut General Statutes § 52-557n. A "political subdivision of the state" would include entities such as towns, cities, and boroughs. Connecticut Constitution, Article Tenth, Sec. 1. The Greenwich Police Department is not a political subdivision of the state.
Although there is Superior Court authority for the proposition that "[S]uing the wrong party, if in fact this defendant is the wrong party, is not a jurisdictional defect." (Internal quotation marks omitted.) e.g. McDermott v. Seven Stars Express, Superior Court, Judicial District of New Haven, No. CV 02 0461183 (September 27, 2004, Zoarski, J.T.R.), that refers to subject matter jurisdiction, or the power of the court to hear and determine the general class of cases to which the proceedings in question belong. But here, where there is only one defendant and the court lacks personal jurisdiction over that defendant because that defendant is not a legal entity with the legal capacity to be sued, the case must be dismissed.
Accordingly the defendant's motion to dismiss is granted. The plaintiff's Request to File Amended Complaint is moot. Even if the amendment were allowed, the jurisdictional defect would not be corrected. There still would not be a properly summoned and served party defendant with the capacity to be sued.
The requested amendment is simply to change the name of the defendant in the case caption only, to read "Town of Greenwich" instead of "Greenwich Police Department."
ORDER
The Motion to Dismiss (#102) is granted. The Objection to Request to Revise Complaint (#105) is sustained.
BY THE COURT:
Alfred J. Jennings, Jr. Judge