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Gainey v. Giles

Superior Court of Connecticut, Judicial District of Tolland, Rockville

March 23, 2017



         The self-represented plaintiff, Latuan Gainey, brings this action against the defendants pursuant to 42 U.S.C. § 1983, claiming that his rights were violated in that the defendants deprived him of a fair parole hearing in violation of the United States and Connecticut constitutions. The plaintiffs claims arise out of and relate to a December 28, 2015 revocation hearing before the Board of Pardons and Parole (the Board) at which it was determined that the plaintiff had violated the conditions of his parole. He claims that defendants Carleton Giles, Joy Chance, Terry Borgeson, and Kelly Smayda are members of the board and revoked his parole based on information presented at the revocation hearing that they knew to be false. He further claims that he has written numerous correspondence to Giles asking that the violations of his rights be corrected, and that Giles has failed to do so. The plaintiff alleges that defendant Danielle Mancini is a parole officer who forged a document that was used against the plaintiff in his revocation hearing. The plaintiff has also sued defendants Jessica Bullard, Randi Demers, George Anderson and Michael Donato, all of whom the plaintiff alleges " are currently with the Board of Pardons and Paroles." The complaint does not allege the role each defendant plays. The complaint alleges Anderson used false documents at the plaintiff's revocation hearing. It also alleges that Donato forged a document used as evidence against the plaintiff. The only allegations as to Bullard and Demers are that they failed to correct violations of the plaintiff's rights and failed to assure his right to a fair hearing. All of the defendants are sued in their official and individual capacities. The plaintiff seeks a new revocation hearing and $5, 000 in damages from each defendant.

         The Attorney General's office filed appearances on behalf of all defendants on July 27, 2016. On September 19, 2016, the defendants filed the instant motion to dismiss. The defendants allege that they are entitled to both absolute and sovereign immunity from suit. They also allege that the plaintiff's complaint must be dismissed due to improper service. For the reasons set forth below, the motion is granted as to the individual claims against defendants Giles, Chance, Borgeson, Smayda, and Anderson because they are entitled to absolute immunity. The motion is denied in all other respects.


         " 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" . (Internal quotation marks omitted.) Henderson v. State, 151 Conn.App. 246, 256, 95 A.3d 1 (2014). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). " Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). Nevertheless, it is well established that, " in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

         " [T]he doctrine of absolute immunity concerns a court's subject matter jurisdiction..." Perugini v. Giuliano, 148 Conn.App. 861, 873, 89 A.3d 358 (2014) (affirming the trial court's decision to dismiss the plaintiff's claim on the basis of absolute immunity); see Tyler v. Tatoian, 164 Conn.App. 82, 87, 137 A.3d 801, cert, denied, 321 Conn. 908, 135 A.3d 710 (2016). Thus, the issue is properly raised in the defendants' motion to dismiss. Similarly, " [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Department of Transportation, 293 Conn. 342, 347, 977 A.2d 636 (2009). Finally, insufficiency of service of process is a proper basis for a motion to dismiss. Connecticut Practice Book § 10-30.

         The court first turns to the defendants' claim that they were not properly served. Such a claim attacks only the court's personal jurisdiction over the defendants, not the court's subject matter jurisdiction over the action. Thus, a challenge to improper service can be waived if not properly and timely raised. Practice Book § 10-30 requires that any motion challenging the court's jurisdiction be filed within thirty days of the filing of an appearance. " The rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6, formerly § 112. Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is waived if not sooner raised." (Emphasis in original.) Pitchell v. City of Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999). Counsel appeared for the defendants on July 27, 2016. The motion to dismiss was not filed until September 19, 2016, well beyond the thirty day requirement in § 10-30. Thus, any claim of lack of personal jurisdiction based on insufficiency of service is deemed waived. The defendant's motion to dismiss on that basis is therefore denied.

         The defendants also argue that the court must dismiss the complaint because members of a parole board are entitled to absolute personal immunity from suit because they are performing a judicial or quasi-judicial function when they decide whether to grant, deny or revoke parole. Because the plaintiff has asserted only federal claims under § 1983, federal law regarding immunity from suit applies. Sullins v. Rodriguez, 281 Conn. 128, 134, 913 A.2d 415 (2007). The Second Circuit has specifically addressed the immunity of persons like the defendants here in connection with parole revocation hearings. In Montero v. Travis, 171 F.3d 757 (2d Cir. 1999), the plaintiff claimed that the defendant parole hearing officer violated § 1983 by depriving the plaintiff of a fair revocation hearing. The district court held that the defendant was entitled to absolute immunity and dismissed the plaintiff's complaint. Affirming the decision of the district court, the Second Circuit held: " Montero brought his action pursuant to § 1983, which creates a federal cause of action against any person who, under color of state law, deprives a citizen or a person within the jurisdiction of the United States of any right, privilege, or immunity secured by the Constitution or laws of the United States. 42 U.S.C. § 1983. It is, however, well established that officials acting in a judicial capacity are entitled to absolute immunity against § 1983 actions, and this immunity acts as a complete shield to claims for money damages.... This immunity also extends to administrative officials performing functions closely associated with the judicial process because the role of the hearing examiner or administrative law judge ... is functionally comparable to that of a judge.... [T]here is no dispute that when Graber presided over Montero's parole revocation hearing, Graber was performing an adjudicative function. Montero has only complained that because Graber was an administrator who was biased against him, he should not have performed that function at all. The concerns that provide the primary rationales for affording judges absolute immunity when performing actions within their judicial capacity, however, apply with equal force to parole board officials deciding whether to grant, deny or revoke parole.... What is more, parole board officials, like judges, may find themselves spending an inordinate amount of time and expense defending against baseless suits brought by disappointed parolees, thereby distracting parole board officials from their crucial duties in administering the state's penal system.... For these reasons, we join our sister circuits and hold directly that parole board officials, like judges, are entitled to absolute immunity from suit for damages when they serve a quasi-adjudicative function in deciding whether to grant, deny or revoke parole." (Internal quotation marks omitted; citations omitted.) 171 F.3d 760-61. The court's decision in Montero has been expressly adopted and followed in Connecticut. See, e.g., Hanton v. Noto, Superior Court, judicial district of New Haven, Docket No. CV 08-5020458 (February 16, 2010); Hanton v. Farr, Superior Court, judicial district of New Haven, Docket No. CV 08-5031804 (September 28, 2009).

         The court agrees with the above analysis. Defendants Giles, Chance, Smayda and Borgeson were acting in a quasi-judicial capacity when they revoked the plaintiff's parole. Their actions are protected by absolute immunity. Thus, this court lacks subject matter jurisdiction over the individual claims against them. Consequently, those claims must be dismissed.

         The remaining defendants also claim that they are entitled to absolute immunity even though they were not acting in a quasi-judicial function. While it is true that immunity from suit under § 1983 extends to participants in the parole revocation process beyond the hearing officers, it does not necessarily extend to all those involved. For example, a year before it decided Montero, the Second Circuit held in Scotto v. Almenas, 143 F.3d 105, 112 (2d Cir. 1998), that the parole officer that prosecutes the revocation claim is immune from suit under § 1983. " Parole officers also receive absolute immunity for their actions in initiating parole revocation proceedings and in presenting the case for revocation to hearing officers, because such acts are prosecutorial in nature." Id. At the same time, the court held that a parole officer acting in an investigatory capacity and in recommending revocation is only entitled to qualified immunity because he is not acting in a prosecutorial capacity. Id. 113.

         The question as to the other defendants then is what part did they play in the revocation of the plaintiff's parole. The answer is determined by looking at the plaintiff's complaint. The complaint alleges that defendant Anderson used false documents against the plaintiff before the Board. The court reads this allegation as claiming that Anderson acted as the prosecutor at the plaintiff's parole revocation hearing. Consequently, he is entitled to absolute immunity. Thus, the plaintiffs claim against Anderson in his individual capacity is dismissed.

         The complaint alleges that defendant Mancini is a parole officer who, based on false information, recommended that the plaintiffs parole be violated. Mancini was not acting in a prosecutorial fashion and is not entitled to absolute immunity. Her motion to dismiss the claim against her in her individual capacity is denied.

         The complaint is less clear as to the roles of defendants Bullard, Demers and Donato. At this stage of the proceedings, without some evidence that the defendants were acting in either an adjudicative or prosecutorial capacity, the court cannot find that they are entitled to absolute immunity. For this reason, their motion to dismiss the claims against them in their individual capacities is denied.

         Finally, the court turns to the defendants' claim of sovereign immunity. The defendants argue that because they are all being sued in their official capacities, the plaintiff's suit is, in effect, a suit against the state. This is partially correct. While the defendant is seeking monetary damages against the defendants in their individual capacities, he is also seeking injunctive relief against the defendants in their official capacities. In particular, he is asking the court to order a new revocation hearing untainted by the evidence he claims was improperly introduced at the first hearing. Thus, his claim for injunctive relief is a claim against the state.

         Sovereign immunity bars claims against the state. It also bars claims against officers and agents of the state when they are sued in their official capacity. This is " because the state can act only through its officers and agents, [therefore] a suit against a state officer concerning a matter in which the officer represents the state is, ...

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