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Miller v. Sutton

United States District Court, D. Connecticut

July 21, 2016



          Michael P. Shea, U.S.D.J.

         Pro se Plaintiff, Josephine Smalls Miller, a Connecticut attorney, brings this lawsuit against Karyl Carrasquilla, Chief Disciplinary Counsel of the State of Connecticut Office of the Chief Disciplinary Counsel (“OCDC”); Suzanne Sutton, First Assistant Chief Disciplinary Counsel; and Michael Bowler, Bar Counsel for the Statewide Grievance Committee (“SGC”) (“Defendants”). (Third Amended Complaint, ECF No. 36 (“TAC”) ¶¶ 3-5.)[1]

         In Counts One and Two, Miller alleges that Defendants violated her rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment, respectively. (TAC at 13-14.) In Counts Three and Four, Miller alleges that Sutton and Bowler, respectively-in their individual capacities-interfered with Miller’s rights under 42 U.S.C. § 1983 to use the federal district courts to make claims of race discrimination. (Id. at 14-15.) Finally, in Count Five, Miller alleges that Defendants violated her First Amendment right to petition the government for redress of grievances. (Id. at 15.) Miller seeks to enjoin Defendants from pursuing: (1) “any claim of the additional allegations of professional misconduct in any grievance hearing or other manner”; (2) “any reprimand, suspension or other sanction against Plaintiff for the additional allegations of professional misconduct”; (3) “any claim of professional misconduct for filing claims of racial discrimination or other civil rights claims on behalf of Plaintiff’s clients.” (Id. at 17.) She does not seek monetary damages. (Id.)[2]

         Defendants have moved to dismiss the TAC under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of jurisdiction and failure to state a claim on which relief can be granted, respectively. Defendants argue that: (1) the doctrine of Younger abstention bars the Court from considering this case, (2) the case is moot, (3) Miller fails to state a claim upon which relief can be granted, and (4) Defendants are entitled to absolute quasi-judicial immunity for the individual capacity claims against them. (ECF No. 34-1 at 12.) For the reasons set forth below, the Court abstains from exercising jurisdiction and therefore GRANTS Defendants’ motion to dismiss the TAC. (Defendants’ Mem. Mot. Dismiss (“Defs’ Br.”) ECF No. 34.)

         I. BACKGROUND[3]

         Miller, who is African-American (TAC ¶¶ 13, 22), is licensed to practice law in the state of Connecticut. (Id. ¶ 2.) “During most of her thirty-five years of practice, [she] has specialized in employment discrimination/civil rights law.” (Id. ¶ 7.) She sues the Defendants in both their individual and official capacities. (Id. ¶¶ 3-5.) The OCDC and the SGC are comprised of attorneys and, in the case of the SGC, some non-attorneys who are appointed by the judges of the Connecticut Superior Court and who are charged with, among other things, enforcing state rules governing the practice of law and investigating complaints of attorney misconduct. (Id.; see Conn. Prac. Bk. §§ 2-32 - 2-38.) Because the TAC’s allegations focus on proceedings involving these two agencies, some background on the rules that govern them is necessary.

         A. Connecticut Attorney Discipline

         “Any person, including disciplinary counsel, or a grievance panel on its own motion, may file a written complaint, executed under penalties of false statement” with statewide bar counsel alleging attorney misconduct against a respondent attorney. Conn. Prac. Bk. § 2-32(a).[4] Within seven days of receiving a complaint, statewide bar counsel must review the complaint and either forward the complaint to the grievance panel in the judicial district in which the respondent maintains her principal office (or residence) or refer the complaint to the chair of the SGC (or an attorney designee of the chair) and a non-attorney member. Id.

         If statewide bar counsel refers the complaint to the chair of the SGC (or an attorney designee of the chair) and a non-attorney member, the chair or attorney designee, the non-attorney, and statewide bar counsel shall, if appropriate, dismiss the complaint on one of several grounds, or stay the proceedings if the complaint alleges only a fee dispute.[5] Id.

         If statewide bar counsel forwards the complaint to a grievance panel, then the panel, with the assistance of grievance counsel[6] assigned to it, investigates the complaint “to determine whether probable cause exists that the attorney is guilty of misconduct. The grievance panel may, upon the vote of a majority of its members, require that a disciplinary counsel pursue the matter before the grievance panel on the issue of probable cause.” Id. § 2-32(f). The respondent has thirty days from the date she is notified of the referral to the grievance panel to respond to the complaint. Conn. Prac. Bk. § 2-32(a)(1). The grievance panel may conduct a hearing on the complaint, at the request of the respondent, for good cause shown or on its own motion. Id. § 2-32(h). Although the complainant and respondent are entitled to be present, with their counsel, at any proceedings on the complaint at which testimony is given, they are not entitled to examine or cross-examine witnesses unless the grievance panel requests that they do so. Id.

         The grievance panel must notify the complainant, the respondent, and the SGC of its determination.[7] Id. § 2-32(k). If the grievance panel determines that probable cause exists that the respondent is guilty of misconduct, the grievance panel must file its written record with the SGC and disciplinary counsel, id. § 2-32(i), and the determination that probable cause exists becomes a matter of public record. Id. § 2-32(k). Next, the SGC-or a reviewing committee made up of at least three members of the SGC-“hold[s] a hearing on the complaint.” Id. § 2-35(c).

         Prior to such a hearing, “disciplinary counsel may add additional allegations of misconduct arising from the record of the grievance complaint or its investigation of the complaint.” Id. § 2-35(d)(1). If disciplinary counsel “determines that additional allegations of misconduct exist, ” disciplinary counsel must issue a written notice to the respondent and the SGC describing the allegations and identifying the rules governing attorney conduct that the respondent allegedly violated. Id. § 2-35(e).

         At all hearings of the SGC or the reviewing committee, the respondent and the complainant are entitled to be present, and the respondent has the right to be heard in her own defense. Id. § 2-35(h). Both disciplinary counsel, who is charged with “pursu[ing] the matter before the SGC or the reviewing committee, ” id. § 2-34A(b)(1), and the respondent may examine and cross-examine witnesses and shall have the opportunity to make statements. Id. § 2-35(h). The SGC or reviewing committee may request oral argument. Id. Within 90 days of the date the grievance panel files its determination with the SGC, the reviewing committee must “render a final written decision dismissing the complaint, imposing sanctions and conditions . . ., or directing the disciplinary counsel to file a presentment against the respondent in the superior court and file it with the [SGC].” Id. § 2-35(i).

         Within 30 days of the reviewing committee’s final decision, the respondent may request that the SGC review the decision. Id. § 2-35(k). Such a request for review must specify the basis for the review, including, among other bases, that the reviewing committee’s findings were in violation of constitutional provisions. Id. As long as the respondent timely requests a review of the reviewing committee’s decision by the SGC, the respondent may later appeal the decision to the Superior Court. Id. § 2-38(a). The enforcement of a final decision imposing sanctions or conditions against the respondent is stayed pending review or appeal. Id. § 2-38(b); § 2-35(k). “The appeal shall be conducted by the court without a jury and shall be confined to the record. If alleged irregularities in procedure before the statewide grievance committee or reviewing committee are not shown in the record, proof limited thereto may be taken in the court.” Id. § 2-38(d). In addition to filing written briefs, the parties may request that the court hear oral argument. Id. § 2-38(d), (e).

         B. Allegations of the TAC

         1. Referral from Judge Meyer and Additional Allegations

         On May 14, 2014, Miller filed a pro se complaint in U.S. District Court for the District of Connecticut against the Bridgeport Police Department, Bridgeport City Attorney Mark Anastasi, and others, alleging, among other things, race discrimination, conspiracy, and tortious interference with contract. (TAC ¶ 8; see Miller v. Bridgeport Police Department; 3:14-cv-00689-JAM (hereafter “BPD”).) Miller states that she was obliged to file the BPD action in 2014 as a separate case because U.S. District Judge Vanessa L. Bryant had refused to permit her to file an amended complaint in her 2012 pro se race discrimination lawsuit against the Bridgeport Board of Education and Anastasi, Miller v. Bridgeport Board of Education 3:12-cv-1287 (JAM) (hereafter, “BBOE”), a case originally assigned to Judge Bryant. (TAC ¶ 9.) (Both cases were later transferred to U.S. District Judge Jeffrey A. Meyer.)

         Miller made three factual allegations in paragraphs 44-46 of her amended complaint in BBOE: (1) the defendants “maintained a policy, practice, and custom of engaging only non-African-American attorneys and law firms to perform legal services”; (2) defendants had “no African-American attorneys who perform legal services for it pursuant to Conn. Gen. Stat. §7- 101a”; and (3) “[r]ecords of . . . [the] Board of Education show no African-American attorneys who perform legal services for it pursuant to Conn. Gen. Stat. §7-101a.” BBOE, ECF No. 31, ¶¶ 44-46. Believing that Miller knew these statements were false, the BBOE defendants advised Miller that they intended to file a motion for sanctions under Rule 11. Miller v. Bridgeport Bd. of Educ., No. 3:12-CV-01287 JAM, 2014 WL 3738057, at *4 (D. Conn. July 30, 2014). On March 19, 2014, the BBOE defendants sent Miller a “safe harbor” letter pursuant to Fed.R.Civ.P. 11(c)(2), permitting her to withdraw or correct the allegations. Id. In response, Miller sent a letter stating, “This will respond to your correspondence regarding the above-captioned case. I do not intend to withdraw any pleading. Your attempt to engage in the characteristic economic terrorism is to no avail.” Id. On April 10, 2014, the defendants filed a motion for sanctions under Rule 11. BBOE, ECF No. 35. After a hearing, Judge Meyer found that Miller’s statements were knowingly false, granted the motion for sanctions, fined Miller $1, 500, and dismissed BBOE with prejudice. Bridgeport Bd. of Educ., 2014 WL 3738057, at *10. Judge Meyer forwarded a copy of his ruling granting the motion for sanctions to the Connecticut statewide bar counsel “for whatever further disciplinary review or action it deems appropriate.” Id. at *12. “[T]he SGC referred the matter to a local grievance panel, which found probable cause that [Miller] had violated the Rules of Professional Conduct.” (ECF No. 34-1 at 6; Ex. B, Grievance Complaint # 14-0803, Grievance Panel Finding of Probable Cause, Letter dated April 28, 2015.)

         After granting the motion for sanctions in BBOE, Judge Meyer found that the same statements Miller had made in the BPD complaint were knowingly false and granted the motion for sanctions in BPD. Judge Meyer did not dismiss the complaint in BPD, however. Instead, he allowed Miller to file an amended complaint. BPD, ECF No. 36. Judge Meyer ordered that Miller’s amended complaint:

not rely on any of the substantive allegations that were the basis of her prior lawsuit in [BBOE] which was dismissed with prejudice pursuant to an order sanctioning plaintiff for pleading several false allegations. . . . [, ] not include the Bridgeport Board of Education as a defendant in her amended complaint and . . . not allege any misconduct-by any defendant-concerning the Bridgeport Board of Education that was alleged in [BBOE].

BPD, ECF No. 29 at 1-2. On March 18, 2015, Miller filed a second amended complaint in BPD, in which she “modified the factual statements regarding race discrimination that had been deemed by Judge Meyer to be false.” (TAC ¶ 11.) Miller’s amended complaint in BPD alleged that the BPD defendants “maintained a policy, practice, and custom of engaging only majority white law firms to perform legal services” and “retained no African-American lawyers similarly situated to Plaintiff to perform legal services” pursuant to C.G.S. § 7-101a. (Id. ¶ 13.) The BPD defendants filed a motion to dismiss Miller’s amended complaint, but did not make any claim that the amended complaint in BPD-which included these modified allegations of race discrimination-contained false statements. (Id. ¶ 17.)

         Nevertheless, after the local grievance panel’s probable cause finding, Sutton on July 2, 2015, “filed two additional allegations of professional misconduct” against Miller, the first of which related to her filing of the March 18, 2015 amended complaint in BPD (the “Additional Allegations”). (TAC ¶¶ 12, 18; ECF No. 34-1 Ex. C.) The Additional Allegations were:

1. Respondent committed professional misconduct, including but not limited to violations of Rule 3.1 of the Rules of Professional Conduct in that even after she was found to have violated Rule 11, Respondent caused a second amended complaint to be filed on March 18, 2015 in [BPD] alleging the same claims of racial discrimination as were deemed in violation of Rule 11 in the case brought before this committee, [BBOE]. She has also filed an opposition to Defendants[’] Motion to dismiss dated June 26, 2015, defending the racial discrimination claims based upon the same information provided to the Court that issued the Rule 11 violation sanction. . . .
2. Respondent committed professional misconduct, including but not limited to a violation of Rules 3.3(a) (1) and 8.4(3) in that she informed the Court during the June 10, 2014 hearing on the Rule 11 motion in [BBOE] that her 2010 complaint, Miller v. Bridgeport Board of Education, FBT-CV-60114068 was dismissed because of “a conflict that I had in the scheduled trial date on another matter”. She omitted the true nature of the dismissal . . . .

(ECF No. 34-1 Ex. C (citations omitted); TAC ¶ 12.) Miller’s TAC alleges, “[u]pon information and belief, ” that “defendants’ intent and purpose” in making these Additional Allegations was to restrain the exercise of her rights to make claims of racial discrimination on behalf of herself and her clients. (TAC ¶ 19.)

         On September 1, 2015, the reviewing committee of the SGC held a hearing during which Carrasquilla presented evidence on behalf of the OCDC (TAC ¶ 20; ECF No. 43 at 7), and Miller presented evidence in her own defense, including “evidence regarding multiple instances of other non-African-American attorneys who engaged in the same or substantially similar conduct” as was alleged against her, but who faced “no disciplinary action against them.” (TAC ¶ 22.) Miller alleges, “[u]pon information and belief, ” that the OCDC “do[es] not intend to undertake any investigation of the substantial evidence of attorney misconduct substantially similar to that alleged against” her. (Id. ¶ 23.) Miller also alleges that, at the September 1, 2015 hearing, the reviewing committee “refused to provide [her] with appropriate due process in defense of” the Additional Allegations, including discovery and an opportunity fully and fairly to present evidence in her defense. (Id. ¶ 38.) During the hearing, Carrasquilla told the reviewing committee that she did not believe that she had met her burden to prove the first allegation of the Additional Allegations by clear and convincing evidence. (ECF No. 34, Ex. E at 51.)

         In its decision on October 30, 2015, the reviewing committee concluded that Miller had violated Rules 3.3(a)(1), 8.4(3), and 8.4(4) of the Rules of Professional Conduct by making knowingly false allegations in paragraphs 44 and 45 of her amended complaint in BBOE, failing to correct the false statements when given an opportunity to do so, and calling her adversary’s “safe harbor” letter “economic terrorism” instead of withdrawing or amending the false allegations after being given notice and an opportunity to do so. (ECF No. 34, Ex. F at 3.) Based on this finding, the reviewing committee reprimanded Miller. The reviewing committee found “that the record lacks clear and convincing evidence to substantiate a finding of unethical conduct . . . with regard to the additional allegations of misconduct . . . .” (ECF No. 34, Ex. F at 4.) Miller does not allege that she appealed the decision of the reviewing committee, Defendants represent that she did not (ECF No. 34 at 5), and Miller has not challenged that representation.

         2. Other Referrals to Local Grievance Panels

         a. Referral of Racial Discrimination Cases

         Miller also alleges that the OCDC and Sutton investigated at least two of her cases that allege racial discrimination, Igidi v. Department of Correction (hereafter “Igidi”) and Eaddy v. Department of Children & Families (hereafter “Eaddy”). (TAC ¶¶ 28-29.) The OCDC then referred the cases to a local grievance panel. (Id. ¶ 30.)[8] Miller alleges that the OCDC’s referral to the local grievance panel has chilled her constitutional rights and those of her clients “to redress grievances related to racial discrimination.” (Id. ¶ 32.) She alleges that on November 3, 2015, the SGC, acting through Bowler, “filed a complaint” against her “based upon a referral by the Danbury Local panel, finding probable cause for, inter alia, the alleged filing of false, unmeritorious, frivolous complaints or allegations of racial discrimination that cannot be supported” in Igidi and Eaddy. (Id. ¶ 39.) Miller alleges that Bowler acted in concert with members of the OCDC and others within the Connecticut Judicial Branch to interfere with Miller’s pursuit of racial discrimination claims. (Id. ¶ 41.)

         b. Referral from Judge Bellis

         Miller alleges that, also on November 3, 2015, Bowler and the SGC “filed” a complaint against Miller based on a referral by Connecticut Superior Court Judge Barbara Bellis. The referral claimed that Miller had engaged in misconduct by refusing to make a client available for a deposition and misusing a caseflow request in the matter of Mazzo v. Town of Fairfield. (TAC ¶ 56.) Miller alleges that Bowler, the SGC, and the OCDC had “irrefutable documentary evidence” that another attorney-not Miller-was actually responsible for such misconduct. (Id. ¶ 57.) “Despite Bowler’s knowledge that the referral on these matters was based upon false evidence, they nevertheless found probable cause to discipline” Miller, and no action was taken to discipline the Caucasian attorney who was actually responsible for the misconduct.[9] (Id. ¶¶ 58-59.)

         c. En Banc Referral from Connecticut Appellate Court

         Miller alleges that the OCDC “caused a referral to be made to the local panel of the grievance committee based upon a referral by the en banc Connecticut Appellate Court.” (Id. ¶ 33); see footnote 8, supra. Miller states that the Connecticut Appellate Court’s action referring her to Disciplinary Counsel, “is the subject of a pending writ of error before the Connecticut Supreme Court” (id. ¶ 34) in which Miller alleges disparate treatment.[10] (Id. ¶ 35.) Miller alleges, “[u]pon information and belief, ” that the OCDC’s referral to the local grievance panel was motivated by “animus towards her race discrimination and civil rights litigation practice” (id. ¶ 37) and the objective of the referral “was to create a paper trail for purposes of further disciplining [Miller] and ultimately causing the loss of her license to practice law.” (Id. ¶ 36)

         3. Handling of Grievance Filings Against Other Attorneys

         Miller alleges that she filed grievances against various Caucasian attorneys for false statements, and she alleges, “[u]pon information and belief, ” that Bowler, Sutton, and members of the SGC sought to protect those attorneys. (TAC ¶¶ 44-55.) She further alleges that they failed to investigate the grievances and found no probable cause to proceed on her complaints of misconduct against the attorneys. (Id.) On August 17, 2015, Miller filed grievances against Caucasian attorneys Betsy Ingraham and Nancy Brouillet (Assistant Attorney General), [11] alleging that they had made false oral and written statements, respectively. (Id. ¶¶ 44, 49.) On October 29, 2015, the Fairfield Grievance Panel found no probable cause to proceed on the claim against Ingraham (id. ¶ 48), and on December 16, 2015, the Hartford Grievance Panel found no probable cause to proceed on the claim against Brouillet. (Id. ¶ 52.) Miller also alleges that one of her clients filed a grievance against Caucasian attorney Thomas Rome, claiming that he failed to account for approximately $29, 000 in funds that had been ordered returned to her client. (Id. ¶ 61.) Miller alleges that, “[u]pon information and belief, ” Bowler and the SGC did not require Rome to provide the client with any evidence that Rome held the funds and sought to insulate Rome from the consequences of his misconduct because he is Caucasian. (Id. ¶¶ 61-62.) Miller also alleges that “Bowler and the SGC [have] engaged in application of the attorney discipline rules and regulations in a manner that discriminates against African-American attorneys while insulating Caucasian attorneys particularly when the grievance is made by an African-American against said Caucasian attorneys.” (TAC ¶ 55.)

         4. Relief Requested

         Other than costs and attorneys’ fees, the only relief specifically requested in the TAC is injunctive. The TAC seeks to enjoin Defendants from pursuing: (1) “any claim of the additional allegations of professional misconduct in any grievance hearing or other manner”; (2) “any reprimand, suspension or other sanction against Plaintiff for the additional allegations of professional misconduct”; and (3) “any claim of professional misconduct for filing claims of racial discrimination or other civil rights claims on behalf of Plaintiff’s clients.” (TAC at 17.)

         C. Supplemental Materials Filed by Miller

         Before filing her brief in opposition to Defendants’ motion to dismiss the TAC, Miller filed an affidavit (ECF No. 40) along with exhibits (ECF Nos. 41, 42) alleging additional incidents of disparate treatment, including many by non-parties. After the motion to dismiss was fully briefed, Miller filed two additional motions to supplement the record. (ECF Nos. 48, 49). The first motion to supplement the record states that, on July 10, 2015, Miller filed a complaint of discrimination with the Connecticut Commission on Human Rights & Opportunities (“CHRO”) against the Connecticut Judicial Branch and the OCDC.[12] (ECF No. 48 at 1.) “On June 1, 2016 after an initial merit assessment requiring the matter to be held for full investigation, the agency abruptly changed course and issued a letter dismissing the complaint and with no explanation whatsoever.” (Id.)

         Miller’s affidavit (ECF No. 40) repeats many of the allegations from the TAC, and Miller’s second motion to supplement the record (ECF No. 49) also repeats factual allegations from Miller’s affidavit. To the extent they allege facts that have not been previously alleged, such facts are described below.

         1. Allegations of Disparate Treatment by the OCDC

         Miller alleges that another African-American attorney, Joseph Elder, was subject to disparate treatment by the OCDC when it pursued an eleven-year-old matter “that was not the subject of a grievance” against him, resulting in his suspension from the practice of law for one year. (ECF No. 40 ¶ 30.)

         Miller also elaborated on her allegations that she was treated unfairly by the OCDC compared to Caucasian attorneys. On June 22, 2015, Sutton wrote Miller an e-mail suggesting that the OCDC was seeking to suspend Miller for her conduct stemming from Judge Meyer’s referral. Sutton wrote:

I just had a case that dealt with repeated and continuous unsupported pleadings. I have attached the decision. Since you do not have the same grievance history as Mr. Rozbicki I would not seek such a lengthy suspension [of four years]. However, I do think your conduct is a matter to be decided by the superior court not the grievance committee. We can make an agreement pursuant to Practice Book Section 2-82(c)(i) and leave the matter up to the Court.

(ECF No. 40 ¶ 9 (emphasis in original).) Miller had no prior grievance history at that time, while Rozbicki had three prior suspensions in 1992, 2013 and 2015; five presentments in 1987, 2010 and 2013; and a reprimand in 2006. (Id.) Miller responded to Sutton by e-mail on June 23, stating that she found “it absolutely absurd to suggest that the two cases are in the least bit similar.” (Id.) Miller further alleges that, leading up to the grievance hearing on the matter, Carrasquilla continued to threaten suspension by seeking Miller’s “agreement to accept a suspension, ” which Miller “found to be absolutely draconian given the simple pleading allegation deemed to be false.” (Id.) Miller’s affidavit also alleges, “[u]pon information and belief, [that] by making a referral to the local grievance panel against me regarding the two cases that are not the subject of any grievance [Igidi and Eaddy] the OCDC intends to seek a basis for suspension of my license to practice” law. (ECF No. 40 ¶ 31.) Finally, during a June 9, 2016 hearing before a grievance panel, Miller alleges that Carrasquilla sought a presentment against Miller because of Miller’s “attitude” in facing charges that she ...

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