Opinion
No. CV 99 4035838
July 20, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#102)
STATEMENT OF CASE
The plaintiff in this declaratory judgment action is Harold Young, and the defendant is Helene Vartelas, the chief executive officer of the Connecticut Valley Hospital (hospital). In his single-count complaint, the plaintiff alleges that he was a defendant in a separate criminal action in which, in 1995, he was found not guilty by reason of mental disease or defect. As a result of that verdict, the plaintiff was confined at CVH, under the jurisdiction of the psychiatric security review board (review board). The hospital is a "covered entity" as that term is used in the federal Health Insurance Portability Accountability Act of 1996 (HIPPA), 42 U.S.C. § 1320 et seq. Therefore, the hospital is required to comply with the privacy provisions of HIPPA, and the corresponding regulations regarding the disclosure of protected health information. Pursuant to these provisions, a covered entity is prohibited from disclosing a patient's protected health information, unless it is authorized to do so. In July 2008, at a hearing on the plaintiff's application to be discharged from the jurisdiction of the review board, "this Court" admitted protected health information regarding the plaintiff without his authorization, and without providing him with notice. The court subsequently denied his application. The plaintiff intends to file another application for discharge and, therefore, he asks the court to enter a declaratory judgment stating the following: HIPPA prohibits the admission of the plaintiff's protected health information without authorization from and notice to the plaintiff and his counsel; an authorization from a patient for treatment "does not constitute authorization for the use of that treatment to be used against him in a proceeding at law."
On May 21, 2009, the defendant filed a motion to dismiss on the ground that the court lacks subject matter jurisdiction over this action in that the plaintiff has sued her in her official capacity, and he has not alleged that she engaged in conduct that meets any of the recognized exceptions to the doctrine of sovereign immunity. The plaintiff filed an objection to the motion on June 15, 2009, in which he contends that the motion should be denied because this action concerns conduct by the defendant in which she exceeded her statutory authority.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . Moreover, [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
The Supreme Court has explained that "[t]he principle that a state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007).
Nevertheless, "[t]he sovereign immunity enjoyed by the state is not absolute. There are exceptions . . ." Id., 720. "[A] litigant that seeks to overcome the presumption of sovereign immunity must show that (1) the legislature, either expressly or by force of necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Internal quotation marks omitted.) Id., 711-12.
The plaintiff does not dispute that the doctrine of sovereign immunity generally bars actions against the defendant in her official capacity. Instead, he maintains that this action is not barred by that doctrine because it concerns conduct by the defendant that fits into one of the recognized exceptions to the doctrine, specifically that she engaged in conduct that exceeded her statutory authority. At oral argument, the plaintiff conceded that he did not allege sufficient facts in his complaint to establish that the defendant exceeded her statutory authority. He did, however, raise a procedural objection to the defendant's motion, i.e., that the issue of the adequacy of his allegations should be addressed in a motion to strike, rather than a motion to dismiss.
The plaintiff's procedural argument finds some support in two Appellate Court decisions addressing the first exception to the doctrine of sovereign immunity. See Wilson v. Troxler, 91 Conn.App. 864, 883 A.2d 18, cert. denied, 276 Conn. 928, 929, 889 A.2d 819, 820 (2005); Egri v. Foisie, 83 Conn.App. 243, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). In these cases, the court concluded that the proper procedural vehicle for the state defendants to use to raise a claim that they were immune from suit in that the plaintiffs failed to refer to the correct statute abrogating immunity and to allege facts bringing their actions within the statute, is a motion to strike, and not a motion to dismiss. Wilson v. Troxler, supra, 91 Conn.App. 874; Egri v. Foisie, supra, 83 Conn.App. 250.
Nevertheless, this case is controlled by Supreme Court authority addressing the particular exception on which the plaintiff is relying. The Supreme Court has stated that it has "imposed specific pleading requirements on actions in which the plaintiff "seeks declaratory or injunctive relief on the basis of [allegations that a state official engaged in] wrongful conduct . . . in excess of the officer's statutory authority." DaimlerChrysler Corp. v. Law, supra, 284 Conn. 720-21. Specifically, "[for a claim under [this] exception, the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they must also allege or otherwise establish facts that reasonably support those allegations . . . In the absence of a proper factual basis in the complaint to support the applicability of [this exception], the granting of a motion to dismiss on sovereign immunity grounds is proper." (Citation omitted; internal quotation marks omitted.) Id., 721. See also Page v. State Marshal Commission, 108 Conn.App. 668, 681, 950 A.2d 529 (2008) (trial court properly granted state commission's motion to dismiss where "plaintiff's complaint was devoid of any factual allegations that, if proven, reasonably would support his assertion that the commission acted in excess of its statutory authority"), cert. denied, 289 Conn. 921, 958 A.2d 152.
In the present case, the plaintiff's complaint does not contain any allegations that the defendant engaged in any conduct at all, much less that she engaged in conduct that exceeded her statutory authority. Therefore, the plaintiff has failed to establish that the exception to the doctrine of sovereign immunity on which he relies applies to this action. Accordingly, the court lacks subject matter jurisdiction over the plaintiff's action.
For the foregoing reasons, the defendant's motion to dismiss is granted.
It is so ordered.