Traylor v. Gerratana ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
SYLVESTER TRAYLOR v. TERRY GERRATANA ET AL.
(AC 35242)
Gruendel, Lavine and Sheldon, Js.
Argued December 5, 2013—officially released March 11, 2014
(Appeal from Superior Court, judicial district of
Hartford, Robaina, J. [motion to cite additional party];
Schuman, J. [judgment].)
Sylvester Traylor, self-represented, the appellant
(plaintiff).
Jane R. Rosenberg, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellees (defendant Terry Gerratana et
al.).
Cristin E. Sheehan, with whom, on the brief, was
Gina Hall, for the appellee (defendant Connecticut
Medical Insurance Company).
Opinion
PER CURIAM. In this case, the plaintiff, Sylvester
Traylor, commenced the present action against eigh-
teen defendants, on divers legal theories, to obtain
money damages, injunctive relief and a declaratory
judgment that General Statutes § 52-190a1 is unconstitu-
tional insofar as it requires indigent plaintiffs seeking
to bring medical malpractice actions against their health
care providers to obtain opinion letters supporting their
claims from similar health care providers before com-
mencing suit. The defendants are seventeen state defen-
dants, including twelve state legislators,2 one Superior
Court judge, one appellate clerk,3 the New London Supe-
rior Court,4 the ‘‘Connecticut Court of Appeals,’’5 and
the State of Connecticut (state defendants), and one
private defendant, the Connecticut Medical Insurance
Company (insurance company).
In proceedings before the trial court, the state defen-
dants and the insurance company filed and prosecuted
separate motions to dismiss all of the plaintiff’s claims
against them. The trial court granted both motions to
dismiss in their entirety and rendered judgment dismiss-
ing the action. This appeal followed. The plaintiff claims
that the trial court erroneously dismissed all of the
plaintiff’s claims, except those against this court and
the New London Superior Court, which the plaintiff has
not pursued on appeal.6 For the following reasons, we
conclude that each of the trial court’s challenged rulings
were proper and that the judgment must be affirmed.
I
CLAIMS AGAINST LEGISLATIVE DEFENDANTS AND
THE STATE
The plaintiff seeks money damages, injunctive relief
and a declaratory judgment that § 52-190a is unconstitu-
tional, arguing that the legislative defendants acted
unethically, in violation of state and federal law, when
voting on proposed amendments to § 52-190a. Specifi-
cally, the plaintiff claims that the legislative defendants
attempted to ‘‘derail,’’ for their own personal gain and
enrichment, House Bill No. 6487, 2011 Sess., a proposed
amendment to § 52-190a that would have expanded the
types of health care providers who could provide the
opinion letter required under that statute, eliminated
the requirement that the letter provide a detailed basis
for the formation of the opinion, and permitted the
dismissal of a medical malpractice complaint only if
the plaintiff failed to file the opinion letter with the
complaint and also failed to correct that defect within
sixty days when ordered by the court to do so. The
plaintiff does not allege precisely how the legislative
defendants attempted to ‘‘derail’’ the bill, however, he
claims that when several of the legislative defendants
either objected to or raised questions about the bill,
they were ‘‘promoting an unconstitutional law’’ in viola-
tion of the conflicts of interest rule under General Stat-
utes § 1-85 because each of the legislative defendants
has a relative or business that benefits from § 52-190a.
In response, the legislative defendants argue that: (1)
sovereign immunity and absolute legislative immunity
bar the plaintiff’s state law claims against them in their
official capacities; and (2) qualified immunity and lack
of personal jurisdiction bar the plaintiff’s federal law
claims against them in their individual capacities. For
the following reasons, we agree with the legislative
defendants.
A
The Plaintiff’s State Law Claims
We turn first to the plaintiff’s claims against the legis-
lative defendants in their official capacities for alleged
violations of state law. The legislative defendants argue
that sovereign immunity and absolute legislative immu-
nity bar the plaintiff’s claims against them. We agree.
‘‘Sovereign immunity relates to a court’s subject mat-
ter jurisdiction over a case, and therefore presents a
question of law over which we exercise de novo
review.’’ (Internal quotation marks omitted.) Daiml-
erChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d
675 (2007). ‘‘The principle that the state cannot be sued
without its consent, or sovereign immunity, is well
established under our case law. . . . [T]he practical
and logical basis of the doctrine [of sovereign immunity]
is today recognized to rest . . . on the hazard that the
subjection of the state and federal governments to pri-
vate litigation might constitute a serious interference
with the performance of their functions and with their
control over their respective instrumentalities, funds,
and property. . . . Not only have we recognized the
state’s immunity as an entity, but [w]e have also recog-
nized that because the state can act only through its
officers and agents, a suit against a state officer con-
cerning a matter in which the officer represents the
state is, in effect, against the state. . . . Exceptions to
this doctrine are few and narrowly construed under our
jurisprudence.’’ (Citations omitted; internal quotation
marks omitted.) Markley v. Dept. of Public Utility Con-
trol, 301 Conn. 56, 65, 23 A.3d 668 (2011).
Our Supreme Court has recognized three exceptions
to sovereign immunity: ‘‘(1) when the legislature, either
expressly or by force of a necessary implication, statu-
torily waives the state’s sovereign immunity . . . (2)
when an action seeks declaratory or injunctive relief
on the basis of a substantial claim that the state or one
of its officers has violated the plaintiff’s constitutional
rights . . . and (3) when an action seeks declaratory
or injunctive relief on the basis of a substantial allega-
tion of wrongful conduct to promote an illegal purpose
in excess of the officer’s statutory authority.’’ (Citations
omitted; internal quotation marks omitted.) Columbia
Air Services, Inc. v. Dept. of Transportation, 293 Conn.
342, 349, 977 A.2d 636 (2009).
The plaintiff’s claims for declaratory and injunctive
relief against the legislative defendants, and against the
state, are barred by sovereign immunity because they
do not satisfy any of these exceptions. The only excep-
tions to sovereign immunity that would apply to claims
alleging constitutional violations and conduct in excess
of statutory authority are the second and third, which
require that the plaintiff’s claim be ‘‘ ‘substantial.’ ’’ Id.‘‘For a claim made pursuant to the second exception,
complaining of unconstitutional acts, we require that
[t]he allegations of such a complaint and the factual
underpinnings if placed in issue, must clearly demon-
strate an incursion upon constitutionally protected
interests. . . . For a claim under the third exception,
the plaintiffs must do more than allege that the defen-
dants’ conduct was in excess of their statutory author-
ity; they also must allege or otherwise establish facts
that reasonably support those allegations. . . . In the
absence of a proper factual basis in the complaint to
support the applicability of these exceptions, the grant-
ing of a motion to dismiss . . . is proper.’’ (Citations
omitted; internal quotation marks omitted.) Id., 350.
The plaintiff’s amended complaint makes only con-
clusory allegations that § 52-190a violated his constitu-
tional rights to equal access to court, separation of
powers, equal protection, due process, and to trial by
jury. None of the claims raised by the plaintiff allege
a ‘‘substantial’’ claim that ‘‘clearly demonstrate[s] an
incursion upon [his] constitutionally protected inter-
ests.’’ (Internal quotation marks omitted.) Id., 354.
The legislative defendants argue, and we agree, that
the plaintiff’s claims against them also are barred by
absolute legislative immunity, provided by the speech
or debate clause of the Connecticut constitution,7 which
bars all relief against legislators who are carrying out
legislative functions. ‘‘[O]nce it is determined that
[m]embers [of the legislature] are acting within the legit-
imate legislative sphere the . . . [speech or debate
c]lause is an absolute bar to interference.’’ (Internal
quotation marks omitted.) Office of Governor v. Select
Committee of Inquiry, 271 Conn. 540, 563, 858 A.2d
709 (2004). The plaintiff alleges in his amended com-
plaint that the state legislative defendants ‘‘attempted
to derail House Bill HB-6487,’’ either by voting against
it or speaking about it on the Senate floor. Participating
in such legislative debate and voting on proposed legis-
lation undoubtedly constitutes ‘‘ ‘acting within the legit-
imate legislative sphere.’ ’’ Id. Thus, the plaintiff’s state
law claims against the legislative defendants in their
official capacities are barred by sovereign immunity
and absolute legislative immunity.
B
The Plaintiff’s Federal Law Claims
The plaintiff also seeks money damages against the
legislative defendants in their individual capacities for
alleged violations of federal law. The legislative defen-
dants argue that in addition to absolute legislative
immunity, qualified immunity and lack of personal juris-
diction bar the plaintiff’s claims against them. We agree.
‘‘Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct.’’
(Internal quotation marks omitted.) Ashcroft v. al-Kidd,
U.S. , 131 S. Ct. 2074, 2080, 179 L. Ed. 2d 1149(2011). ‘‘[I]f it was objectively reasonable for him at the
time of the challenged action to believe his acts were
lawful’’; (internal quotation marks omitted) Amore v.
Novarro, 624 F.3d 522, 530 (2d Cir. 2010); then qualified
immunity applies. Qualified immunity bars the plain-
tiff’s claims because he failed to establish that the legis-
lative defendants violated a statutory or constitutional
right or that their actions were not objectively rea-
sonable.
The plaintiff also failed to serve process on the legisla-
tive defendants in their individual capacities at their
usual places of abode, as required under General Stat-
utes § 52-57 (a). Rather, the plaintiff served the legisla-
tive defendants only in their official capacities at the
office of the attorney general. In the absence of proper
service, the trial court lacked personal jurisdiction over
the legislative defendants in their individual capacities.
See Edelman v. Page, 123 Conn. App. 233, 243–44, 1
A.3d 1188, cert. denied, 299 Conn. 908, 10 A.3d 525(2010). Accordingly, the plaintiff’s federal law claims
against the legislative defendants in their individual
capacities are barred by qualified immunity and lack
of personal jurisdiction.
II
CLAIMS AGAINST JUDICIAL DEFENDANTS
The plaintiff makes several claims against the judicial
defendants in both their official and individual capaci-
ties, under state and federal law, arising out of the
court’s failure to declare § 52-190a unconstitutional.
The judicial defendants argue that the plaintiff’s claims
are barred by absolute judicial immunity, qualified
immunity, and lack of personal jurisdiction. We agree.
Absolute judicial immunity bars the plaintiff’s state
law claims against the judicial defendants in their offi-
cial capacities. ‘‘It is a long-standing doctrine that a
judge may not be civilly sued for judicial acts he under-
takes in his capacity as a judge.’’ Lombard v. Edward
J. Peters, Jr., P.C., 252 Conn. 623, 630, 749 A.2d 630(2000). The improper actions alleged by the plaintiff
against Judge Parker of issuing incorrect legal rulings
and orders in the plaintiff’s malpractice and mandamus
actions, applying unconstitutional laws, intimidating
the plaintiff during hearings, engaging in ex parte com-
munications, and requiring the plaintiff to obtain legal
counsel for the claims of his wife’s estate, undeniably
were actions taken in Judge Parker’s official judicial
capacity. Thus, the plaintiff’s claims against him are
barred by absolute judicial immunity.
We arrive at the same conclusion with regard to the
plaintiff’s claim against appellate clerk Gannuscio,
alleging that he wilfully refused to grant the plaintiff’s
motion for extension of time. ‘‘Clerks, like judges, are
immune from damage suits for performance of tasks
that are an integral part of the judicial process.’’ (Inter-
nal quotation marks omitted.) Chance v. Superior
Court, United States District Court, Docket No.
3:04CV155 (MR) (D. Conn. December 13, 2004). Because
the determination of whether to grant or deny the plain-
tiff’s motion for extension of time falls within the judi-
cial function of a clerk under Practice Book § 66-1, the
plaintiff’s claim against Gannuscio is barred by absolute
judicial immunity.
For the reasons set forth in part I B of this opinion,
qualified immunity and lack of personal jurisdiction bar
the plaintiff’s claims for money damages against the
judicial defendants in their individual capacities. The
plaintiff has failed to allege facts sufficient to conclude
that the judicial defendants’ conduct was outside the
scope of their employment as judicial branch employ-
ees, or that such conduct rose to the level of being
wanton, reckless or malicious. He also has failed to
establish that the judicial defendants violated a statu-
tory or constitutional right or that their actions were
not objectively reasonable. Further, the plaintiff failed
to serve process on the judicial defendants in their
individual capacities at their usual places of abode, and
thus, the court lacked personal jurisdiction over them.
Accordingly, the plaintiff’s claims against the judicial
defendants in both their official and individual capaci-
ties for alleged violations of state and federal law are
barred by absolute judicial immunity, qualified immu-
nity, and lack of personal jurisdiction.
III
CLAIMS AGAINST THE INSURANCE COMPANY
The plaintiff also appeals from the trial court’s judg-
ment granting the motion to dismiss filed by the insur-
ance company. The insurance company argues that this
court should decline review of the court’s judgment
dismissing the counts against it, which sought, inter
alia, a writ of mandamus, because the plaintiff has failed
to adequately brief this issue on appeal.
‘‘An appellant who fails to brief a claim abandons it.’’
State v. Zarick, 227 Conn. 207, 221, 630 A.2d 565 (1993).
‘‘Where the parties cite no law and provide no analysis
of their claims, we do not review such claims.’’ (Internal
quotation marks omitted.) Knapp v. Knapp, 270 Conn.
815, 823 n.8, 856 A.2d 358 (2004); see DeLucia v. Burns,
11 Conn. App. 439, 444 n.7, 527 A.2d 1234 (bare asser-
tions, without citations to legal authority evade mean-
ingful appellate review), cert. denied, 205 Conn. 803,
531 A.2d 935 (1987). The plaintiff’s initial brief is silent
as to why the court’s dismissal of the counts against
the insurance company was improper, and we decline
to review any arguments advanced for the first time
in his reply brief. See Mangiafico v. State Board of
Education, 138 Conn. App. 677, 680–81 n.4, 53 A.3d
1066 (2012). Because the plaintiff has not adequately
briefed his claim that dismissal of the counts against
the insurance company was improper, we decline to
review it.
The judgment is affirmed.
1
General Statutes § 52-190a provides in relevant part as follows: ‘‘The
complaint . . . shall contain a certificate of the attorney or party filing the
action . . . that such reasonable inquiry gave rise to a good faith belief
that grounds exist for an action against each named defendant . . . . To
show the existence of such good faith, the claimant . . . shall obtain a
written and signed opinion of a similar health care provider . . . that there
appears to be evidence of medical negligence and includes a detailed basis
for the formation of such opinion. . . . The claimant . . . shall retain the
original written opinion and shall attach a copy of such written opinion,
with the name and signature of the similar health care provider expunged,
to such certificate. . . .’’
2
Senator Terry Gerratana, Senator Robert Kane, Senator Tony Guglielmo,
Senator Len Fasano, Senator Toni Boucher, Senator Jason Welch, Senator
Toni Harp, Senator Kevin Witkos, Senator Michael McLachlan, Senator
Anthony Musto, Senator Len Suzio, and Representative Prasad Srinivasan
(legislative defendants).
3
The Honorable Thomas F. Parker and appellate clerk Alan Gannuscio
(judicial defendants).
4
There are no specific allegations made by the plaintiff against the New
London Superior Court and neither the plaintiff nor counsel for the state
defendants have addressed in their briefs any claims asserted specifically
against that court.
5
The plaintiff stated in his oral argument on this appeal that he previously
has withdrawn this court as a party to the underlying action. Additionally,
neither the plaintiff nor counsel for the state defendants have addressed in
their briefs any claims asserted specifically against this court.
6
See footnotes 4 and 5 of this opinion.
7
The constitution of Connecticut, article third, § 15, provides: ‘‘The sena-
tors and representatives shall, in all cases of civil process, be privileged
from arrest, during any session of the general assembly, and for four days
before the commencement and after the termination of any session thereof.
And for any speech or debate in either house, they shall not be questioned
in any other place.’’