United States District Court, D. Connecticut
JOAN T. KLOTH-ZANARD, Plaintiff,
DANNEL MALLOY, ET AL Defendants.
RULING AND ORDER
Michael P. Shea, U.S.D.J.
se Plaintiff Joan Kloth-Zanard sues Governor Dannel
Malloy, Roderick Bremby, Commissioner of the Department of
Social Services ("DSS"), Joette Katz, Commissioner
of the Department of Children and Families ("DCF"),
Christine Lupke, Jean Norvig, Carl Graham-Leichner, DSS,
"Danbury DCF" and DCF (collectively, the
"Defendants").(Third Am. Compl., ECF No. 87 at 5)
("Compl.") Plaintiff asserts constitutional,
statutory, and state common law claims arising from (i)
DSS's alleged denial of her education rights under the
"Welfare Reform [A]ct and [d]omestic [v]iolence [l]aws,
" id. at 5, (ii) DSS's alleged failure to
accommodate her alleged disabilities at a 2012 administrative
hearing in which she challenged a lien placed on her property
by DSS, and (iii) DCF's placement of her name on the
Connecticut child abuse and neglect registry. Id. at
8, 10. Her 75-page third amended complaint includes 16
counts, each against all Defendants. Id.
reasons set forth below, the claims for Violation of the ADA
and Section 504 of the Rehabilitation Act (Count 1),
Violation of Education Rights (Count 2), Violation of Fifth
Amendment Due Process Rights (Count 5), Violation of Sixth
Amendment Right to Confront a Witness (Count 6), Violation of
Civil Rights under §1985 (Count 7), and Perjury under
§ 1621 (Count 10) are dismissed with prejudice.
Plaintiffs claim for Violation of Fourteenth Amendment Due
Process Rights (Count 5) based on the failure of DCF to
remove her name from the abuse and neglect registry is
dismissed without prejudice, and she may replead this claim
within 30 days in accordance with the Court's
instructions set forth in the Conclusion below. The state-law
claims for Violation of Fiduciary Duties (Counts 3 and 4),
Defamation (Count 8), and Slander and Libel (Count 9) are
dismissed without prejudice to being asserted in state court,
except that they may be reasserted in this Court if the
Plaintiff ultimately pleads a plausible Fourteenth Amendment
claim (see above). The remaining counts - Loss of Liberty
(Count 11), Loss of Reputation (Count 12), Mental Pain and
Suffering (Count 13), Loss of Employment and Earning Capacity
(Count 14), Loss of Enjoyment of Life (Count 15), and Right
to Punitive and Other Damages (Count 16) - are dismissed with
prejudice because they merely assert different types of harm
flowing from the alleged violations of her rights set forth
in the other counts, rather than cognizable causes of action
on their own.
January 29, 2015, Plaintiff filed her original complaint,
which sought injunctive and monetary relief, and a motion to
proceed in forma pauperis. (ECF Nos. 1 and 2) This
Court dismissed the original complaint under 28 U.S.C. §
1915(e)(2)(B) without prejudice because the claims, as pled,
were barred by the Eleventh Amendment. (ECF No. 8) The Court
permitted Plaintiff to file an amended complaint and ordered
that such pleading "be brought against proper state
officials,  be supported by factual allegations that
demonstrate an ongoing violation of federal law [to support
the claim for injunctive relief], and  be presented to the
Court consistent with the requirements of Rule 11(b) of the
Federal Rules of Civil Procedure." Id. The
Court also granted Plaintiffs motion to proceed in forma
27, 2015, Plaintiff filed her first amended complaint. (ECF
No. 16) Plaintiff then moved to amend her complaint on
September 12, 2015. (ECF No. 31) In its order granting the
motion, the Court instructed Plaintiff that the amended
complaint must contain "a short and plain statement of
the claim showing that the pleader is entitled to Relief and
that failure to comply could result in dismissal. (ECF No. 36
quoting Fed.R.Civ.P. 8). On October 24, 2015, Plaintiff filed
not one, but two amended complaints. (ECF No. 37) The Court
ordered that the Plaintiff file a single complaint, which she
later did. (ECF No. 87) That document became the operative
Defendants have moved to dismiss the Complaint for lack of
subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1),
failure to state a claim under Fed.R.Civ.P. 12(b)(6), and
failure to comply with this Court's orders dated April 3,
2015 and January 22, 2016, under Fed.R.Civ.P. 12(e).
makes the following factual allegations, which the Court
assumes to be true:
1995, Plaintiff moved to Connecticut to complete the last 18
months of a physical therapy program at Sacred Heart
University. (Compl. at 8.) Plaintiff had been a victim of
domestic violence and had been homeless during the nine
months before her move. Id. at 35. She enrolled in
the physical therapy program in January 1995. Id. at
8. DSS told Plaintiff to "put her education on hold
until September so she could get her housing situation"
stable. Id. at 8. In September 1995, she attempted
to enroll in the same physical therapy program. Id.
But DSS told Plaintiff that if she enrolled, DSS would revoke
her "Section VIII housing, food stamps and energy
assistance." Id. In Plaintiff s view, DSS
"took advantage of her." Mat 35. DSS denied her the
opportunity to pursue her education and threatened to take
away her welfare benefits when she was "[under] duress,
stress[ed] [and] homeless." Id. Plaintiff
further alleges that between 1995-1998, DSS did not
accommodate her "hidden disabilities" and Plaintiff
was discriminated against on the basis of those "hidden
disabilities." Id. at 36-38.
2012, Plaintiff appeared in an administrative hearing to
contest a lien levied on her real property by DSS.
Id. at 34, 38. She had "repeatedly wrote and
called and emailed DSS to inform them that she needed
assistance to present her case." Id. at 38. DSS
did not provide her any accommodation. Id. at 38.
She alleges that DSS violated her rights under the Americans
with Disabilities Act (the "ADA") by failing to
"provide advocacy and leniency during her fair hearing,
shutting down her fair hearing prematurely [and] not
providing various other amenities and modifications as
prescribed by law." Id. at 34, 38, 40. She
asserts that the hearing officer "could have
accommodated [her] disabilities" by "ask[ing] her
if she needed time to compose herself." Id. at
40. Plaintiff believes "[she] did not receive equal
access to the Fair Hearing/Court Process."
B. DCF Allegations
1996, "a central registry for [child] [a]buse and
[n]eglect was created" and was to be overseen and
maintained by the Commissioner of DCF. Id. at 9, 11.
In 1997, DCF placed Plaintiffs name on the state abuse and
neglect registry. Id. at 10. Plaintiff claims that
DCF should not have placed her name on the list because the
neglect charges against her were dismissed as
unsubstantiated. Id. In fact, the judge who
dismissed the neglect charges admonished DCF for filing
charges against her in the first place. Id. at 7.
She further asserts that DCF failed to notify her that she
had been placed on the registry, as required by law.
Id. at 10-11. Consequently, Plaintiff was unaware
that she was listed on the registry until 2012, when she
applied for a volunteer position and the prospective employer
notified her of the reason for denying her application.
Id. at 12. Plaintiffs name has been removed from the
list, but that removal comes too late for her. Id.
Plaintiff claims that the 15 years that her name was on the
registry amounted to defamation, slander, and libel.
Id. at 12, 54, 63-64. The false listing prevented
her from obtaining employment, forcing her to rely on public
assistance programs. Id.
"case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it." Nike, Inc. v. Already, LLC, 663 F.3d 89,
94 (2d Cir. 2011). The "plaintiff asserting subject
matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists."
Luckkett v. Bure, 290 F.3d 493, 497 (2d. Cir. 2002).
"In resolving a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), a district court. .
. may refer to evidence outside the pleadings."
Makaraova v. United States, 201 F.3d 110, 113 (2d
Cir. 2000). The court construes the complaint liberally and
accepts all factual allegations as true. Ford v. D.C 37
Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009).
considering a motion to dismiss under Rule 12(b)(6), a court
construes the complaint liberally, "accepting all
factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiffs favor."
Chambers v. Time Warner, Inc., 2 F.3d 147');">282 F.3d 147, 152 (2d
Cir. 2002). A court may allow a case to proceed only if the
complaint pleads "enough facts to state a claim to
relief that is plausible on its face." Id.
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Bell Ail. Corp. v. Twombly, 550 U.S.
544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662,
681 (2009) (citing Twombly, 550 U.S. at 554-55).
When a plaintiff submits a complaint pro se, the
court must construe the allegations liberally, raising
"the strongest arguments [they] suggest."
Abbas v. Dixon, 480 F.3d. 636, 639 (2d Cir. 2007).
A pro se plaintiff, however, still must meet the
standard of facial plausibility. See Hogan v.
Fischer, 738 F.3d 509, 515 (2d Cir. 2013)
("[A]pro se complaint must state a
plausible claim for relief") (citing Harris v.
Mills, 572 F.3d 66, 73 (2d Cir. 2009)).
Section 1983 Claims
Court construes Plaintiffs complaint to assert several claims
under Section 1983 related to (i) DSS's alleged violation
of her education rights under the "Welfare Reform [A]ct
and Domestic Violence Laws" and (ii) DCF's placement
of Plaintiff s name on the state abuse and neglect registry.
(Compl. at 46-48; 49-52; 64-69; 71-72.) She asserts Violation
of Educational Rights (Count 2), Violation of Fifth and
Fourteenth Amendment Due Process Rights (Count 5), Violation
of Sixth Amendment Right to Confront a Witness (Count 6), and
Perjury under § 1621 (Count 10).
Plaintiff s Section 1983 claims against the DCF and the DSS,
and all of her Section 1983 claims for money damages against
the individuals sued in their official capacities, are barred
by the Eleventh Amendment. The Eleventh Amendment bars this
Court from exercising jurisdiction over suits against State
agencies seeking either money damages or injunctive relief,
absent consent by the State or Congressional abrogation of
Eleventh Amendment immunity. McGinty v. New York,251 F.3d 84, 91 (2d Cir. 2001); see also Colapiertro v.
Dep 't of Motor Vehicles, No. 3:08-CV-00238, 2008 WL
4298374, at *2 (D. Conn. Sept. 17, 2008) ("[A] suit for
recovery of money damages may not be maintained against the
state itself, or against any agency or department of the
state, unless the state has waived its sovereign immunity
under the Eleventh Amendment."); Atlantic Healthcare
Benefits Trust v. Googins,2 F.3d 1, 4 (2d Cir. 1993)
(Eleventh Amendment "affects [court's] subject
matter jurisdiction."). Furthermore, a suit against an
individual in his official capacity is for Eleventh Amendment
purposes a suit against the state. Brandon v. Holt,469 U.S. 464, 471 (1985) ("[A] judgment against a public
servant 'in his official capacity' imposes liability
on the entity that he represents . . ."). Congress did
not abrogate Eleventh Amendment immunity in enacting Section
1983, Will v. Michigan Dep't of State Police,491 U.S. 58, 69 (1989), and the State of Connecticut did not
consent to be sued on these ...