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Mercer v. Schriro

United States District Court, D. Connecticut

August 26, 2019





         Plaintiff Joseph Mercer initiated this civil rights action, pursuant to 42 U.S.C. § 1983, against Dora B. Schriro, who was then Commissioner of his employer, the State of Connecticut Department of Emergency Services and Public Protection ("DESPP"); the Connecticut State Police Union, Inc. ("CSPU"); and Andrew Matthews, President of the CSPU. Plaintiff was at all relevant times a sergeant with the State Police and alleges that he suffered an adverse employment action by all defendants in this action "when, acting under color of state law, the Commissioner transferred him from his position as Operations Sergeant with Emergency Services to the Office of Counter Terrorism at the request of the CSPU and/or Matthews." Doc. 1, ¶ 7, ¶ 74.

         In his original Complaint, Plaintiff included two Counts, which he asserted against all defendants. These Counts included: (1) "Violation of 42 U.S.C. § 1983 and the United States Constitution," alleging violations of Mercer's rights to free speech and association under color of state law, and (2) "Violation of Conn. Gen. Stat. § 31-51q," alleging a state statutory violation by infringing on Mercer's "exercise of his freedom of speech and associational rights under the First and Fourteenth Amendments to the United States Constitution, and under Article 1, Sections 4 and 14 to the Constitution of the State of Connecticut." Doc. 1, ¶¶ 73-81, 82-88.

         Defendant Schriro and CSPU each filed a motion to dismiss the Complaint. Doc. 24, 36. In ruling thereon, the Court allowed Count One, violation of 42 U.S.C. § 1983, to proceed against the Commissioner in her individual capacity with respect to damages, "find[ing] no basis in the Complaint's allegations to conclude that the Commissioner [was] entitled to 'qualified immunity' at th[at] time." Mercer v. Schriro, 337 F.Supp.3d 109, 154-55 (D. Conn. 2018).

         The Court, however, dismissed Count One against the Commissioner in her official capacity for damages as barred by the Eleventh Amendment and as failing to state a claim upon which relief may be granted. "If a § 1983 suit against a state official in his or her official capacity seeks money damages, the state is deemed to be the real party in interest because an award of damages would be paid from the state treasury." 337 F.Supp.3d at 136 (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48-49 (1994)). "Under such circumstances, the action is deemed to be against the State so that the State official is entitled to Eleventh Amendment immunity." Id. (citing Kentucky v. Graham, 473 U.S. 159, 169 (1985)). Therefore, "[t]o the extent that Plaintiff seeks damages against the Commissioner in her official capacity, . . . that claim is barred by the Eleventh Amendment." Id. at 137 (emphasis in original).

         In addition, pursuant to Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989), "neither a State nor its officials acting in their official capacities are 'persons' under § 1983." Id. at 136. Accordingly, "Plaintiff's § 1983 claim against the Commissioner in her official capacity for damages (and/or retrospective relief for a violation of federal law under § 1983) fails to state a plausible claim because she is not, as a matter of law, a 'person' subject to section 1983 liability." Id. at 155 (citing Will, 491 U.S. at 71).

         In contrast, the Court permitted the § 1983 claim against the Commissioner in her official capacity to proceed as to prospective injunctive relief regarding her future conduct. Id. at 155 (citing Will, 491 U.S. at 71 n.10).[1] In Edelman v. Jordan, 415 U.S. 651, 664 (1974), the United States Supreme Court held that the Eleventh Amendment does not bar an action against a state official for violation of federal law if the plaintiff seeks an injunction regarding that official's future conduct. The Court thus allowed Plaintiff's requests for an injunction to prohibit all of the defendants in the action "from retaliating against [him] for exercising his First Amendment rights" and to require the Commissioner "to transfer Plaintiff back into the full-time position of Operations Sergeant." See Doc. 1 ("Prayer for Relief "), at 24 (¶¶ B. (i)-(ii)). Because these were requests for future injunctive relief (regarding future and continuing constitutional violations), the Court allowed them to proceed. Mercer, 337 F.Supp.3d at 155.

         As to the Union Defendants, Plaintiff's § 1983 claim was permitted to proceed against them for damages. Because the allegations in the Complaint could be construed to support a claim that the Union Defendants were "willful joint participants in the Commissioner's decision to transfer Plaintiff from his Operations Sergeant position in SWAT," Plaintiff "stated a plausible claim that the Union Defendants acted under color of state law to deprive him of his First and Fourteenth Amendment rights in violation of § 1983." Id. (citing Young v. Suffolk Cty., 705 F.Supp.2d 183, 195 (E.D.N.Y. 2010)).

         Finally, the Court dismissed Count Two for violation of Conn. Gen. Stat. § 31-51q as to all defendants. Id. The adverse effects of Plaintiff's transfer from his Operations Sergeant position in SWAT to an administrative position in Counter Terrorism - lower status and reduced fringe benefits - were "sufficient to suggest that he was disciplined." Id. "However, his claims [were] dismissed because none of the defendants - including the Commissioner and the Union Defendants - was his 'employer' within the meaning of § 31-51q." Id. Accordingly, Count Two for retaliatory discipline was dismissed. Id.

         Plaintiff has now moved to amend and supplement his complaint. Doc. 63. In the motion itself, Plaintiff first seeks to add as defendant his employer, the Department of Emergency Services and Public Protection, State of Connecticut ("DESPP"), as a substitute for Commissioner Schriro, on his claim for violation of Conn. Gen. Stat. § 31-51q. Doc. 63, at 1 (¶ 2). However, upon reviewing Schriro's "Objection" to his motion [Doc. 64], Plaintiff eliminated the DESPP as defendant and also the § 31-51q claim and appended a new proposed "First Amended Complaint" to his response.[2] See Doc. 65 & 65-1. Plaintiff has acknowledged that the Eleventh Amendment bars his § 31-51q claim against DESPP, but clarified that he sought "to have the DESPP waive its Eleventh Amendment immunity." Doc. 65, at 3.

         As Schriro pointed out in her "Objection" to the motion to amend, the Eleventh Amendment prohibits a private party from suing a state in federal court unless Congress has unequivocally expressed the intent to abrogate that immunity or the state waives its immunity. Doc. 64, at 4 (citing Edelman v. Jordan, 415 U.S. 651 (1974)). In particular, the Eleventh Amendment immunity encompasses actions against agencies and departments of a state. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Here, "[t]he State of Connecticut has not waived its Eleventh Amendment immunity to actions brought pursuant to Conn. Gen. Stat. § 31-51q." Doc. 64, at 4 (citing Cook v. McIntosh, No. CIV 3:97CV773 (AHN), 1998 WL 91066, at *6 (D. Conn. Feb. 20, 1998)).

         Plaintiff questioned the wisdom of the State's choice to object to his § 31-51q claim against DESPP, stating that "[t]here may well be good and sufficient reasons for the State/DESPP" to waive that immunity to allow the case to proceed in federal court, "rather than forcing a plaintiff to litigate such claims in two separate courts, and expending State resources in defending related claims in two separate courts." Doc. 65, at 4. Nonetheless, based on Schriro's objection, Plaintiff conceded that the State has "plainly chosen . . . to fiercely defend the State's right under the Eleventh Amendment." Id. Consequently, Plaintiff removed the § 31-51q claim and appears to have accepted that DESPP may not be a defendant in this action.

         The Court says "appears to have accepted" because Plaintiff has not included DESPP in the paragraphs describing the "Parties" in the proposed "First Amended Complaint" (herein "FAC").[3] Doc. 90-1, at 3-4 (¶¶ 7-10). However, DESPP is included as a defendant in the case caption, id., at 1. Moreover, numerous allegations now allege that "Defendant Commissioner and/or DESPP" were responsible for transferring Mercer from his Operations Sergeant position within Emergency Services to the Office of Counter Terrorism ("OCT"). Id., at 16-17 (¶¶ 72-73) (emphasis added); id., at 17-18 (¶¶ 76-79) (emphasis added). As Defendant Schriro points out in her "Sur-reply" memorandum [Doc. 67], "[a]lthough Plaintiff has indeed removed DESPP from . . . the 'Parties' section of his Complaint, he continues to direct allegations at DESPP." Doc. 67, at 2-3 (citation omitted).

         In particular, in each allegation of Plaintiff's newly added "constructive discharge" section of his "Statement of Facts," the acts which give rise to his claim are attributed to "Defendant Commissioner and/or DESPP." Doc. 90-1, at 16-17 (¶¶ 72-73) (emphasis added). Moreover, Plaintiff includes allegations against DESPP under Count I (Violation of 42 U.S.C. § 1983) when he states that he "repeats and realleges paragraphs 1 through 75," as well as when he asserts violations of his rights to free speech when "Defendant Commissioner and/or DESPP transferred him." Id., at 17-18 (¶¶ 76-77) (emphasis added). Similarly, Plaintiff alleges that the Defendant Commissioner "and/or DESPP would not have transferred [him] in the absence of CSPU's and/or CSPU President Matthews' influence." Id., at 18 (¶ 79) (emphasis added). In sum, DESPP is alleged to have been responsible, in whole or in part, for Mercer's "constructive discharge," as well as violating Mercer's First and Fourteenth Amendment rights.

         At the outset, because Plaintiff has conceded that he may not proceed against DESPP, a state agency with Eleventh Amendment immunity, the reference to DESPP in the case caption must be stricken if the Court grants leave to amend. In addition, because DESPP is not a party, Plaintiff may wish to remove allegations which attribute responsibility to DESPP from his claims. If DESPP is not a party to the action, its behavior may not be relevant and/or may even undercut Plaintiff's claims by attributing fault to a non-party, as opposed to a defendant. See, e.g., Desert Plants Conservancy LLC v. Parsons, No. CV 11-01599-PHX-ROS, 2012 WL 13019154, at *4 (D. Ariz. July 6, 2012) (granting motion to dismiss where, inter alia, "the FAC makes numerous allegations against individuals or entities who are not defendants. . . . The numerous allegations against such non-parties are irrelevant . . . .").

         The only other substantive addition Plaintiff inserts into the FAC is the "constructive discharge" section in his "Statement of Facts."[4] That new section will be discussed below as the Court resolves Plaintiff's motion to amend.


         A. Standard for Leave to Amend - Rule 15, ...

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