United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR LEAVE TO FILE
FIRST AMENDED COMPLAINT [DOC. 63]
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
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,
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,
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).
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).
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).
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). 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.
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)).
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.
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. 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.
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,
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.
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"). 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).
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.
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 . . . .").
only other substantive addition Plaintiff inserts into the
FAC is the "constructive discharge" section in his
"Statement of Facts." That new section will be
discussed below as the Court resolves Plaintiff's motion
Standard for Leave to Amend - Rule 15, ...