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Kloth-Zanard v. Malloy

United States District Court, D. Connecticut

September 29, 2016



          Michael P. Shea, U.S.D.J.

         Pro 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").[1](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.

         For the 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.

         I. Procedural History

         On 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 pauperis. Id.

         On May 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 complaint.

         The 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).

         II. Factual Allegations

         Plaintiff makes the following factual allegations, which the Court assumes to be true:

         A. DSS Allegations

         In 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.

         In 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." Id[2]

B. DCF Allegations

         In 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.

         III. Legal Standards

         A. Rule 12(b)(1)

         A "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).

         B. Rule 12(b)(6)

         In 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)).

         IV. Discussion

         A. Federal Claims

         i. Section 1983 Claims

         The 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).

         a. Eleventh Amendment

         All of 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 ...

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