Jan G. v. Semple ( 2021 )

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JAN G. v. SCOTT SEMPLE ET AL.*
(AC 43794)
Bright, C. J., and Alvord and Oliver, Js.
Syllabus
The self-represented, incarcerated plaintiff sought declaratory and injunctive
relief as well as monetary damages against the defendants, state correc-
tional employees, claiming state tort claims and violations of his federal
constitutional rights. Following the trial court’s termination of a protec-
tive order barring the plaintiff’s contact with his mother, M, a victim of
a crime he had committed, the plaintiff and M submitted various requests
to the Department of Correction to approve contact visits between them
while the plaintiff is incarcerated, which were denied. The plaintiff then
submitted two inmate grievance forms, which were also denied. The
plaintiff commenced this action against the defendants in both their
individual and official capacities. The trial court granted the defendants’
motion to dismiss, concluding that the plaintiff’s claims against them
in their individual capacities were barred by statutory (§ 4-165) immunity
and the claims against them in their official capacities were barred by
sovereign immunity. On the plaintiff’s appeal to this court, held:
1. The trial court did not improperly conclude that it lacked subject matter
and personal jurisdiction over the plaintiff’s claims brought against the
defendants in their individual capacities:
a. The trial court did not improperly conclude that the defendants were
entitled to statutory immunity pursuant to § 4-165 (a) to the extent that
the plaintiff alleged state tort claims; in his complaint, the plaintiff merely
alleged that the defendants had denied his requests for contact visitation
with M during his incarceration in the discharge of their duties pursuant
to a certain Department of Correction administrative directive, and did
not allege that the defendants denied his requests in a wanton, reckless,
or malicious manner; accordingly, the court lacked subject matter juris-
diction.
b. The trial court properly dismissed the plaintiff’s federal civil rights
claims brought pursuant to the applicable federal statute (42 U.S.C.
§ 1983) against the defendants in their individual capacities on the alter-
native basis of qualified immunity, as the plaintiff failed to plead facts
showing that the defendants violated a statutory or constitutional right:
the plaintiff failed to allege any incursion upon a constitutionally pro-
tected liberty interest, as an inmate does not have a liberty interest in
access to visitors, and, thus, the plaintiff failed to allege a violation of
his due process rights as guaranteed by the fourteenth amendment to
the United States constitution; moreover, the plaintiff failed to allege a
violation of his right to freedom of association as guaranteed by the
first amendment to the United States constitution because preventing
or limiting contact visits between inmates and the victims of their crimes,
even when such victims are immediate family members, bears a rational
relation to legitimate penological interests; accordingly, the court lacked
subject matter jurisdiction.
c. The trial court properly dismissed the plaintiff’s claims brought against
the defendants in their individual capacities on the alternative basis of
lack of personal jurisdiction, as the plaintiff only effected service on
the defendants in their official capacities; by serving each defendant at
the Office of the Attorney General and not at their usual places of abode,
as required by statute (§ 52-57 (a)), the defendants were not served
properly in their individual capacities.
2. The trial court properly dismissed the plaintiff’s claims brought against
the defendants in their official capacities for lack of subject matter
jurisdiction, as the claims were barred by the doctrine of sovereign
immunity: the plaintiff’s claims for monetary damages were barred
because the plaintiff failed to allege in his complaint that the state
had waived sovereign immunity or that the claims commissioner had
authorized the plaintiff’s claims; moreover, the plaintiff’s claims for
declaratory and injunctive relief brought pursuant to 42 U.S.C. § 1983were barred because the plaintiff failed to plead facts showing that the
defendants violated a statutory or constitutional right.
Argued October 15, 2020—officially released January 12, 2021
Procedural History
Action to recover damages for, inter alia, the alleged
deprivation of the plaintiff’s federal constitutional
rights, and for other relief, brought to the Superior Court
in the judicial district of New Haven, where the court,
Abrams, J., granted the defendants’ motion to dismiss
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Affirmed.
Jan G., self-represented, the appellant (plaintiff).
Jacob McChesney, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Clare E. Kindall, solicitor general, for the
appellees (defendants).
Opinion
ALVORD, J. The self-represented plaintiff, Jan G.,
appeals from the judgment of the trial court dismissing
his action against the defendants, state employees of
the Department of Correction (department).1 On appeal,
the plaintiff claims that the court improperly concluded
that it lacked subject matter jurisdiction over (1) his
claims against the defendants in their individual capaci-
ties on the basis of statutory immunity pursuant to
General Statutes § 4-165, and (2) his claims against the
defendants in their official capacities on the basis of
the doctrine of sovereign immunity.2 We affirm the judg-
ment of the trial court.
The following facts are alleged in the plaintiff’s com-
plaint. At all times relevant to this appeal, the plaintiff
has been incarcerated at the Cheshire Correctional
Institution (Cheshire). Prior to 2015, the court issued
a protective order barring the plaintiff’s contact with
his mother. In February, 2015, the court terminated
the protective order against the plaintiff. Following the
court’s termination of the protective order, the plaintiff
and his mother submitted to the department various
requests to approve contact visits between them while
the plaintiff is incarcerated. The defendant Scott Erfe,
then the warden of Cheshire, denied the plaintiff’s and
his mother’s requests.
In response to Erfe’s denial of the contact visitation
requests, the plaintiff submitted to the department two
inmate grievance forms—a May 9, 2018 inmate adminis-
trative remedy form (level one grievance), and a June
22, 2018 inmate grievance appeal form (level two griev-
ance). The plaintiff attached as exhibits to his com-
plaint, inter alia, his level one grievance, his level two
grievance, and the department’s responses to each. In
those grievance forms, the plaintiff again requested that
the department add his mother to his contact visitation
list, and he referenced the court’s termination of the
protective order against him. On June 21, 2018, the
department denied the plaintiff’s level one grievance,
stating: ‘‘Per Administrative Directive 10.6 [§ 5 (e) (iii),
a] visit between an inmate and the inmate’s victim shall
not be permitted unless approved in writing by the
[u]nit [a]dministrator. Your grievance is denied.’’3 On
August 1, 2018, the department denied the plaintiff’s
level two grievance, stating: ‘‘You are appealing a level
one grievance regarding visiting at [the] Cheshire [Cor-
rectional Institution]. The response given by [the
department] was appropriate. The removal of the pro-
tective order does not negate the fact that [your mother]
is a victim of your crime. Your level [two] grievance
appeal is denied.’’4
On January 2, 2019, the plaintiff commenced this
action against the defendants in both their individual
and official capacities. In his complaint, the plaintiff
alleged federal civil rights claims pursuant to 42 U.S.C.
§ 1983.5 Specifically, the plaintiff alleged that the defen-
dants, by denying requests for contact visitation with
his mother, violated his right to freedom of association
and his right to due process of law as guaranteed by
the first and the fourteenth amendments to the United
States constitution.6 Additionally, in an ‘‘[i]ntroduction’’
to his complaint, the plaintiff alleged ‘‘the torts of denial
of visits of elderly infirm (80 year old) mother’’ and
‘‘denial of freedom of association.’’7 The plaintiff sought
declaratory and injunctive relief, as well as monetary
damages.
On February 25, 2019, the defendants moved to dis-
miss the plaintiff’s action. With respect to the plaintiff’s
claims brought against them in their individual capaci-
ties, the defendants provided three bases for dismissing
the plaintiff’s claims. The defendants first argued that
the court lacked personal jurisdiction over them in their
individual capacities due to the plaintiff’s failure to
serve them in that capacity, as required by General
Statues § 52-57 (a).8 Second, the defendants argued that
the court lacked subject matter jurisdiction over the
plaintiff’s claims brought against them in their individ-
ual capacities as they are entitled to statutory immunity
pursuant to § 4-165.9 Third, the defendants argued that
they additionally are entitled to qualified immunity, bar-
ring the plaintiff’s § 1983 claims brought against them in
their individual capacities. With respect to the plaintiff’s
claims brought against the defendants in their official
capacities, the defendants argued that those claims are
barred by sovereign immunity.
On April 1, 2019, the plaintiff filed an objection to
the defendants’ motion to dismiss in which he argued
that ‘‘statutory and sovereign immunity does not apply
in a § 1983 federal civil rights action filed in state court’’
because ‘‘[t]he supremacy clause preempts state stat-
utes and state common law of Connecticut.’’ The plain-
tiff further argued that the defendants are ‘‘not entitled
to any qualified immunity.’’10
On August 20, 2019, the trial court granted the defen-
dants’ motion to dismiss, concluding that the plaintiff’s
claims against the defendants in their individual capaci-
ties are barred by statutory immunity pursuant to § 4-
165, and that his claims against the defendants in their
official capacities are barred by sovereign immunity.11
This appeal followed.
We begin by setting forth our standard of review. ‘‘A
motion to dismiss . . . properly attacks the jurisdic-
tion 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. . . .
‘‘Claims involving the doctrines of common-law sov-
ereign immunity and statutory immunity, pursuant to
§ 4-165, implicate the court’s subject matter jurisdic-
tion. . . . A determination regarding a trial court’s sub-
ject matter jurisdiction is a question of law. When . . .
the trial court draws conclusions of law, our review is
plenary and we must decide whether its conclusions
are legally and logically correct and find support in the
facts that appear in the record. . . .
‘‘When a . . . court decides a jurisdictional question
raised by a pretrial motion to dismiss, 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, constru-
ing them in a manner most favorable to the pleader.’’
(Citations omitted; internal quotation marks omitted.)
Lawrence v. Weiner, 154 Conn. App. 592, 596–97, 106
A.3d 963, cert. denied, 315 Conn. 925, 109 A.3d 921(2015).
I
On appeal, the plaintiff first claims that the trial court
improperly concluded that it lacked subject matter
jurisdiction over his claims brought against the defen-
dants in their individual capacities on the basis of statu-
tory immunity pursuant to § 4-165 (a). The defendants
contend that the court properly dismissed the plaintiff’s
state tort claims brought against them in their individual
capacities on the basis of statutory immunity pursuant
to § 4-165 (a). The defendants concede, however, that
there was ‘‘apparent error in [the court’s] overbroad
application of . . . § 4-165’’ to the plaintiff’s § 1983
claims brought against them in their individual capaci-
ties.12 Consistent with the defendants’ arguments set
forth in their memorandum of law in support of their
motion to dismiss, the defendants provide two alterna-
tive bases for affirming the court’s dismissal of the
plaintiff’s § 1983 claims brought against them in their
individual capacities: that the court lacked subject mat-
ter jurisdiction over the plaintiff’s claims on the basis
of the doctrine of qualified immunity, and that the court
lacked personal jurisdiction over the defendants in their
individual capacities.
We agree with the defendants that (A) the court
lacked subject matter jurisdiction over the plaintiff’s
state tort claims brought against them in their individual
capacities on the basis of statutory immunity pursuant
to § 4-165 (a), and (B) the court lacked subject matter
jurisdiction over the plaintiff’s § 1983 claims brought
against them in their individual capacities on the basis
of the doctrine of qualified immunity. Furthermore, we
agree with the defendants that (C) the court lacked
personal jurisdiction over them in their individual capa-
cities. Accordingly, we conclude that the court properly
dismissed the plaintiff’s claims brought against the
defendants in their individual capacities.
A
We first address the plaintiff’s claim that the court
improperly concluded that the defendants are entitled
to statutory immunity pursuant to § 4-165 (a). The
defendants contend that, to the extent that the plaintiff
alleged state tort claims, the court properly dismissed
such claims brought against them in their individual
capacities on the basis of statutory immunity. We agree
with the defendants.
Section 4-165 (a) provides in relevant part: ‘‘No state
officer or employee shall be personally liable for dam-
age or injury, not wanton, reckless or malicious, caused
in the discharge of his or her duties or within the scope
of his or her employment. . . .’’ Section 4-165 ‘‘grants
state employees immunity from suit from negligence
claims regarding conduct arising out of the scope of
their employment, but such immunity does not extend
to conduct by a state employee that is alleged to be
wanton, reckless, or malicious.’’ Lawrence v. Weiner,
supra, 154 Conn. App. 594.
‘‘In the posture of this case, we examine the pleadings
to decide if the plaintiff has alleged sufficient facts . . .
with respect to personal immunity under § 4-165, to
support a conclusion that the [defendant was] acting
outside the scope of [his] employment or wilfully or
maliciously. . . . The question before us, therefore, is
whether the facts as alleged in the pleadings, viewed
in the light most favorable to the plaintiff, are sufficient
to survive a motion to dismiss on the ground of statutory
immunity. . . .
‘‘We thus turn to the matter of whether the plaintiff
has alleged facts that, if proven, are sufficient to demon-
strate that the defendant acted wantonly, recklessly, or
maliciously.13 In applying § 4-165, our Supreme Court
has understood wanton, reckless or malicious to have
the same meaning as it does in the common-law context.
. . . Under the common law, [i]n order to establish that
the defendants’ conduct was wanton, reckless, wilful,
intentional and malicious, the plaintiff must prove, on
the part of the defendants, the existence of a state of
consciousness with reference to the consequences of
one’s acts . . . . [Such conduct] is more than negli-
gence, more than gross negligence. . . . [I]n order to
infer it, there must be something more than a failure to
exercise a reasonable degree of watchfulness to avoid
danger to others or to take reasonable precautions to
avoid injury to them. . . . It is such conduct as indi-
cates a reckless disregard of the just rights or safety
of others or of the consequences of the action. . . .
[In sum, such] conduct tends to take on the aspect
of highly unreasonable conduct, involving an extreme
departure from ordinary care, in a situation where a
high degree of danger is apparent.’’ (Citation omitted;
footnote added; internal quotation marks omitted.)
Id., 598.
In his complaint, the plaintiff merely has alleged that
the defendants had denied his requests for contact visi-
tation with his mother during his incarceration. The
plaintiff has not alleged that the defendants denied his
requests in a wanton, reckless, or malicious manner.
Rather, in his complaint, the plaintiff indicated that the
defendants denied his requests in the discharge of their
duties pursuant to Administrative Directive 10.6.
Accordingly, we conclude that the defendants are enti-
tled to statutory immunity pursuant to § 4-165 (a). The
court, therefore, lacked subject matter jurisdiction over
the plaintiff’s state tort claims brought against the
defendants in their individual capacities, and the court
properly dismissed such claims.
B
We next address the defendants’ argument for
affirming the court’s dismissal of the plaintiff’s § 1983
claims brought against them in their individual capaci-
ties on the alternative basis of the doctrine of qualified
immunity. The plaintiff contends that the defendants
are not entitled to qualified immunity. We agree with
the defendants.
The following well established legal principles guide
our analysis. ‘‘[A] claim for qualified immunity from
liability for damages under § 1983 raises a question of
federal law . . . and not state law. Therefore, in
reviewing these claims of qualified immunity we are
bound by federal precedent, and may not expand or
contract the contours of the immunity available to gov-
ernment officials.’’ (Citation omitted; internal quotation
marks omitted.) Schnabel v. Tyler, 230 Conn. 735, 742–
43, 646 A.2d 152 (1994).
‘‘Under federal law, the doctrine of qualified immu-
nity shields officials from civil damages liability for
their discretionary actions as long as their actions could
reasonably have been thought consistent with the rights
they are alleged to have violated. Anderson v.
Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 97 L. Ed.
2d 523 (1987). Qualified immunity is an immunity from
suit rather than a mere defense to liability and, there-
fore, protects officials from the burdens of litigation
for the choices that they make in the course of their
duties. . . . Mitchell v. Forsyth, 472 U.S. 511, 526, 105
S. Ct. 2806, 86 L. Ed. 2d 411 (1985). Thus, the United
States Supreme Court has recognized qualified immu-
nity for government officials [when] it [is] necessary to
preserve their ability to serve the public good or to
ensure that talented candidates [are] not deterred by
the threat of damages suits from entering public service.
Wyatt v. Cole, 504 U.S. 158, 167, 112 S. Ct. 1827, 118 L.
Ed. 2d 504 (1992). Whether an official is entitled to
qualified immunity presents a question of law that must
be resolved de novo on appeal. Elder v. Holloway, 510
U.S. 510, 516, 114 S. Ct. 1019, 127 L. Ed. 2d 344 (1994).’’
(Internal quotation marks omitted.) Brooks v. Sweeney,
299 Conn. 196, 216, 9 A.3d 347 (2010).
‘‘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. . . .
Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074,
79 L. Ed. 2d 1149 (2011) . . . . If no constitutional right
would have been violated were the allegations estab-
lished, there is no necessity for further inquiries con-
cerning qualified immunity.’’ (Citation omitted; internal
quotation marks omitted.) Braham v. Newbould, 160
Conn. App. 294, 302, 124 A.3d 977 (2015).
The plaintiff has alleged two constitutional bases for
his § 1983 claims: that the defendant’s denial of his
requests for contact visitation with his mother during
his incarceration violated his right to freedom of associ-
ation under the first amendment to the United States
constitution and his right to due process of law under
the fourteenth amendment to the United States consti-
tution.
We begin with the plaintiff’s due process claim pursu-
ant to the fourteen amendment to the United States
constitution, which provides in relevant part that ‘‘[n]o
State shall . . . deprive any person of life, liberty or
property, without due process of law . . . .’’ U.S.
Const., amend. XIV, § 1. In the present case, the interest
at stake is the plaintiff’s liberty interest. ‘‘ ‘There are
two elements [that] must be established in order to find
a due process violation. First, because not every liberty
interest is protected, [the plaintiff] must establish that
he has a liberty interest that comes within the ambit
of the fourteenth amendment. Hewitt v. Helms, 459
U.S. 460, 466, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983);
Meachum v. Fano, [427 U.S. 215, 223–24, 96 S. Ct. 2532,
49 L. Ed. 2d 451] (1976); Board of Regents v. Roth, 408
U.S. 564, 571, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972);
Society for Savings v. Chestnut Estates, Inc., 176 Conn.
563, 571, 409 A.2d 1020 (1979). If it is determined that a
protected liberty is implicated, then the second element
that must be addressed is what procedural protections
are due. Goss v. Lopez, 419 U.S. 565, 577, 95 S. Ct. 729,
42 L. Ed. 2d 725 (1975); Board of Regents v. Roth, supra,569–70; Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.
Ct. 2593, 33 L. Ed. 2d 484 (1972); see Williams v. Bart-
lett, 189 Conn. 471, 477, 457 A.2d 290 (1983). . . .
‘‘ ‘Due process analysis begins with the identification
of the interests at stake. Liberty interests protected
by the [f]ourteenth [a]mendment may arise from two
sources—the [d]ue [p]rocess [c]lause itself and the laws
of the [s]tates.’ . . . State v. Patterson, 236 Conn. 561,
568–69, 674 A.2d 416 (1996).’’ State v. Rupar, 293 Conn.
489, 502–503, 978 A.2d 502 (2009). Accordingly, we must
consider whether, under the fourteenth amendment or
under the laws of this state, the plaintiff has a constitu-
tionally protected liberty interest in access to contact
visits with his mother during his incarceration.
An inmate ‘‘does not have a liberty interest in access
to visitors.’’ Henderson v. Commissioner of Correction,
66 Conn. App. 868, 869, 786 A.2d 450 (2001); see also
Kentucky Dept. of Corrections v. Thompson, 490 U.S.
454, 461, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989) (‘‘denial
of prison access to a particular visitor is well within
the terms of confinement ordinarily contemplated by
a prison sentence . . . and therefore is not indepen-
dently protected by the [d]ue [p]rocess [c]lause’’ (cita-
tion omitted; internal quotation marks omitted)); Santi-
ago v. Commissioner of Correction, 39 Conn. App. 674,
680, 667 A.2d 304 (1995) (‘‘inmates have no protected
liberty interest in access to visitors’’). Moreover, the
‘‘[D]epartment of [C]orrection Administrative Directive
§ 10.6 provides in relevant part that ‘visitation shall be
considered a privilege and no inmate shall have entitle-
ment to a [social] visit.’ ’’ Henderson v. Commissioner
of Correction, supra, 869; see Department of Correction,
Administrative Directive 10.6 § 4 (b) (effective Novem-
ber 6, 2020). The plaintiff fails to allege in his complaint
any incursion upon a constitutionally protected liberty
interest and, accordingly, we conclude that the plaintiff
has failed to allege a violation of his due process rights
as guaranteed by the fourteenth amendment to the
United States constitution.
We next turn to the plaintiff’s allegation that the
defendants violated his freedom of association as guar-
anteed by the first amendment to the United States
constitution. ‘‘The fact of confinement and the needs
of the penal institution impose limitations on constitu-
tional rights, including those derived from the [f]irst
[a]mendment, which are implicit in incarceration. . . .
[A] prison inmate retains those [f]irst [a]mendment
rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives
of the corrections system. Thus, challenges to prison
restrictions that are asserted to inhibit [f]irst [a]mend-
ment interests must be analyzed in terms of the legiti-
mate policies and goals of the corrections system, to
whose custody and care the prisoner has been commit-
ted in accordance with due process of law.
‘‘Perhaps the most obvious of the [f]irst [a]mendment
rights that are necessarily curtailed by confinement are
those associational rights that the [f]irst [a]mendment
protects outside of prison walls. The concept of incar-
ceration itself entails a restriction on the freedom of
inmates to associate with those outside of the penal
institution. Equally as obvious, the inmate’s ‘status as
a prisoner’ and the operational realities of a prison
dictate restrictions on the associational rights among
inmates.’’ Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U.S. 119, 125–26, 97 S. Ct. 2532, 53 L.
Ed. 2d 629 (1977).
The United States Supreme Court has explained that
‘‘the [c]onstitution protects certain kinds of highly per-
sonal relationships . . . . And outside the prison con-
text, there is some discussion . . . of a right to main-
tain certain familial relationships, including association
among members of an immediate family and association
between grandchildren and grandparents. . . . Some
curtailment of that freedom must be expected in the
prison context.’’ (Citations omitted; internal quotation
marks omitted.) Overton v. Bazzetta, 539 U.S. 126, 131,
123 S. Ct. 2162, 156 L. Ed. 2d 162 (2003).
To the extent that a prison regulation curtails an
inmate’s freedom of association, an inmate’s constitu-
tional right is not violated if the regulation ‘‘bear[s] a
rational relation to legitimate penological interests.’’ Id.,
132. In determining whether the prison regulation bears
a rational relation to legitimate penological interests,
‘‘[w]e must accord substantial deference to the profes-
sional judgment of prison administrators, who bear a
significant responsibility for defining the legitimate
goals of a corrections system and for determining the
most appropriate means to accomplish them.’’ Id.It is apparent from the plaintiff’s complaint that the
department denied the plaintiff’s requests for contact
visits with his mother during his incarceration because
the department determined that the plaintiff’s mother
was the victim of a crime that he had committed. The
department denied the plaintiff’s requests pursuant to
its Administrative Directive 10.6 § 5 (e) (iii), which pro-
vides in relevant part: ‘‘A visit between an inmate and
the inmate’s victim shall not be permitted unless
approved in writing by the [u]nit [a]dministrator or
[d]irector of [p]arole and [c]ommunity [s]ervices or des-
ignee. . . .’’ Evaluating the department’s regulation in
the light of safeguarding institutional security, a central
objective of prison administration; see Bell v. Wolfish,
441 U.S. 520, 547, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979);
we conclude that preventing or limiting contact visits
between inmates and the victims of their crimes, even
when such victims are immediate family members,
bears a rational relation to legitimate penological inter-
ests.14 Accordingly, we conclude that the plaintiff has
failed to allege a violation of his right to freedom of
association as guaranteed by the first amendment to
the United States constitution.
In light of our determinations that the plaintiff fails
to allege a violation of his right to freedom of associa-
tion or his right to due process of law as guaranteed
by the first and fourteenth amendments to the United
States constitution, we further conclude that the plain-
tiff has failed to plead facts showing that the defendants
violated a statutory or constitutional right. Therefore,
the plaintiff’s § 1983 claims asserted against the defen-
dants in their individual capacities are barred on the
basis of qualified immunity, and the trial court properly
dismissed such claims for lack of subject matter juris-
diction. See Braham v. Newbould, supra, 160 Conn.
App. 306–307 (affirming dismissal of § 1983 claims on
basis of qualified immunity).
C
We next address the defendants’ argument for
affirming the court’s dismissal of the plaintiff’s claims
brought against them in their individual capacities on
the alternative basis that the court lacked personal juris-
diction over them in their individual capacities. Specifi-
cally, the defendants assert that the plaintiff only
effected service on them in their official capacities by
serving each defendant at the Connecticut Office of the
Attorney General on January 2, 2019. The defendants
argue that because the plaintiff failed to effect proper
service against them personally or at their usual place
of abode as required by § 52-57 (a), the court lacked
personal jurisdiction over them in their individual capa-
cities. The plaintiff declined to address this argument
in his objection to the defendants’ motion to dismiss
and in his briefing before this court. We agree with
the defendants.
Practice Book § 10-30 (b) provides that ‘‘[a]ny defen-
dant, wishing to contest the court’s jurisdiction, shall
do so by filing a motion to dismiss within thirty days
of the filing of an appearance.’’ Practice Book § 10-30
(a) (2) provides in relevant part that ‘‘[a] motion to
dismiss shall be used to assert . . . lack of jurisdiction
over the person . . . .’’ In this case, the defendants
properly contested the court’s personal jurisdiction
over them in their individual capacities.15
‘‘[T]he Superior Court . . . may exercise jurisdiction
over a person only if that person has been properly
served with process, has consented to the jurisdiction
of the court or has waived any objection to the court’s
exercise of personal jurisdiction. . . . [S]ervice of pro-
cess on a party in accordance with the statutory require-
ments is a prerequisite to a court’s exercise of [personal]
jurisdiction over that party.’’ (Internal quotation marks
omitted.) Sosa v. Commissioner of Correction, 175
Conn. App. 831, 837, 169 A.3d 341 (2017).
To serve a defendant properly in his or her individual
capacity, service of process must be made in accor-
dance with § 52-57 (a). Section 52-57 (a) provides that
‘‘[e]xcept as otherwise provided, process in any civil
action shall be served by leaving a true and attested
copy of it, including the declaration or complaint, with
the defendant, or at his usual place of abode, in this
state.’’ By contrast, where a plaintiff commences a civil
action against ‘‘the state or against any institution,
board, commission, department or administrative tribu-
nal thereof, or against any officer, servant, agent or
employee of the state or of any such institution, board,
commission, department or administrative tribunal’’ in
their official capacity, service of process ‘‘may be made
by a proper officer . . . [on] the Attorney General at
the office of the Attorney General in Hartford . . . .’’
General Statutes § 52-64 (a).
‘‘Pursuant to . . . § 52-57 (a), a defendant in any civil
action must be served in hand or at his usual place of
abode. This requirement includes civil suits brought
against state defendants who are sued in their individual
capacities. . . . Thus, a plaintiff who serves a state
defendant pursuant to . . . § 52-64 (a) by leaving a
copy of the process at the Office of the Attorney General
has properly served the defendant only in his or her
official capacity and has failed to properly serve the
defendant in his or her individual capacity.’’ (Citation
omitted; footnotes omitted.) Sosa v. Commissioner of
Correction, supra, 175 Conn. App. 837–38.
Here, the plaintiff served the defendants at the Office
of the Attorney General and not at their usual places
of abode. The defendants, therefore, were not served
properly in their individual capacities. Accordingly, we
conclude that the court lacked personal jurisdiction
over the defendants in their individual capacities and
that the court properly dismissed the plaintiff’s claims
against them in their individual capacities. See id., 838;
Harnage v. Lightner, 163 Conn. App. 337, 347, 137 A.3d
10 (2016), aff’d in part, 328 Conn. 248, 179 A.3d 212(2018).
II
The plaintiff next claims that the trial court improp-
erly concluded that it lacked subject matter jurisdiction
over his claims brought against the defendants in their
official capacities on the basis of the doctrine of sover-
eign immunity. The defendants contend that the court
properly determined that the plaintiff’s claims brought
against them in their official capacities, both for injunc-
tive and declaratory relief as well as for monetary dam-
ages, are barred by the doctrine of sovereign immunity.
We agree with the defendants.
‘‘It is well established that [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.) Machado v. Taylor,
326 Conn. 396, 403, 163 A.3d 558 (2017). ‘‘The principle
that the state cannot be sued without its consent, or
sovereign immunity, is well established under our case
law. . . . It has deep roots in this state and our legal
system in general, finding its origin in ancient common
law. . . . Not only have we recognized the state’s
immunity as an entity, but [w]e have also recognized
that because the state can act only through its officers
and agents, a suit against a state officer concerning a
matter in which the officer represents the state is, in
effect, against the state.’’ (Internal quotation marks
omitted.) Allen v. Commissioner of Revenue Services,
324 Conn. 292, 298–99, 152 A.3d 488 (2016), cert. denied,
U.S. , 137 S. Ct. 2217, 198 L. Ed. 2d 659 (2017).
‘‘Exceptions to this doctrine are few and narrowly con-
strued under our jurisprudence.’’ (Internal quotation
marks omitted.) Columbia Air Services, Inc. v. Dept.
of Transportation, 293 Conn. 342, 349, 977 A.2d 636(2009).
‘‘[T]he sovereign immunity enjoyed by the state is
not absolute. There are [three] exceptions: (1) when the
legislature, either expressly or by force of a necessary
implication, statutorily 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 allegation of wrongful conduct to pro-
mote an illegal purpose in excess of the officer’s statu-
tory authority. . . . In the absence of a proper factual
basis in the complaint to support the applicability of
these exceptions, the granting of a motion to dismiss
on sovereign immunity grounds is proper.’’ (Citations
omitted; internal quotation marks omitted.) Id., 349–50.
For the purposes of this appeal, only the first and the
second exceptions to the state’s sovereign immunity
are relevant.16
The first exception to the state’s sovereign immunity
is relevant to the plaintiff’s claims for monetary dam-
ages brought against the defendants in their official
capacities. ‘‘In the absence of a statutory waiver of
sovereign immunity, the plaintiff may not bring an
action against the state for monetary damages without
authorization from the claims commissioner to do so.’’
Id., 351; see also Miller v. Egan, 265 Conn. 301, 315–16,
828 A.2d 549 (2003) (plaintiffs seeking monetary dam-
ages for constitutional violations required to seek
waiver from claims commissioner). ‘‘When a plaintiff
brings an action for money damages against the state,
he must proceed through the [O]ffice of the [C]laims
[C]ommissioner pursuant to chapter 53 of the General
Statutes, §§ 4-141 through 4-165. Otherwise, the action
must be dismissed for lack of subject matter jurisdiction
under the doctrine of sovereign immunity.’’ Prigge v.
Ragaglia, 265 Conn. 338, 349, 828 A.2d 542 (2003). ‘‘This
is true even where, as here, claims are brought pursuant
to the United States constitution.’’ Tuchman v. State,
89 Conn. App. 745, 752, 878 A.2d 384, cert. denied, 275
Conn. 920, 883 A.2d 1252 (2005); see also Prigge v.
Ragaglia, supra, 349 (dismissing claims seeking dam-
ages brought under first and fourteenth amendments
to United States constitution where permission not
received from claims commissioner). ‘‘In each action
authorized by the Claims Commissioner . . . the
claimant shall allege such authorization and the date
on which it was granted . . . .’’ General Statutes § 4-
160 (c).
In the present action, the plaintiff fails to allege in
his complaint that the state had waived sovereign immu-
nity or that the claims commissioner had authorized
the plaintiff’s claims. Accordingly, we conclude that the
plaintiff has failed to meet the first exception to the
state’s sovereign immunity and that his claims for mone-
tary damages brought against the defendants in their
official capacities are barred.
The second exception to the state’s sovereign immu-
nity is relevant to the plaintiff’s claims for declaratory
and injunctive relief brought against the defendants in
their official capacities. ‘‘For a claim made pursuant to
the second exception, complaining of unconstitutional
acts, we require that [t]he allegations of such a com-
plaint and the factual underpinnings if placed in issue,
must clearly demonstrate an incursion upon constitu-
tionally protected interests.’’ (Internal quotation marks
omitted.) Columbia Air Services, Inc. v. Dept. of Trans-
portation, supra, 293 Conn. 350.
In part I B of this opinion, we concluded that the
plaintiff has failed to plead facts showing that the defen-
dants violated a statutory or constitutional right. For
those foregoing reasons, we conclude that the allega-
tions in the plaintiff’s complaint fail to clearly demon-
strate an incursion upon constitutionally protected
interests and, therefore, that the plaintiff has failed to
meet the second exception to the state’s sovereign
immunity. Accordingly, the plaintiff’s § 1983 claims for
declaratory and injunctive relief brought against the
defendants in their official capacities are barred.
We conclude that the court properly dismissed the
plaintiff’s claims brought against the defendants in their
official capacities for lack of subject matter jurisdiction.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018); we
decline to identify any party protected or sought to be protected under a
protective order or a restraining order that was issued or applied for, or
others through whom that party’s identity may be ascertained.
1
The defendants, at all times relevant, were employees of the department.
The employees of the department named as defendants are Scott Semple,
former Commissioner of Correction, Scott Erfe, former warden of the Chesh-
ire Correctional Institution, and Angel Quiros, former district administrator.
2
Throughout his complaint, the plaintiff alleged claims on behalf of his
mother. In the defendants’ memorandum of law in support of their motion
to dismiss, the defendants argued that the plaintiff lacked standing to raise
claims on behalf of his mother. In its memorandum of decision dismissing
the complaint, the court agreed with the defendants that it was ‘‘without
jurisdiction over any claims the plaintiff [was] making on behalf of his
mother.’’ On appeal, the plaintiff claims that the trial court improperly
determined that it lacked jurisdiction over the claims that the plaintiff raised
on behalf of his mother. In support of his argument, the plaintiff maintains
that his mother is ‘‘infirm and speak[s] little English . . . .’’ We conclude
that the trial court properly determined that the plaintiff lacked standing
to raise such claims on behalf of his mother. See State v. Iban C., 275 Conn.
624, 665, 881 A.2d 1005 (2005) (‘‘[u]nder long established principles, a party
is precluded from asserting the constitutional rights of another’’ (internal
quotation marks omitted)); Frillici v. Westport, 264 Conn. 266, 281, 823 A.2d
1172 (2003) (‘‘[i]t is axiomatic that a party does not have standing to raise
the rights of another’’); see also Collins v. West Hartford Police Dept., 324
Fed. Appx. 137, 139 (2d Cir. 2009) (affirming dismissal of 42 U.S.C. § 1983claims because plaintiff lacked ‘‘standing to challenge constitutional depriva-
tions alleged to have been experienced by his mother’’).
In his principal appellant brief, the plaintiff also vaguely references unde-
fined freedom of religion and freedom of speech violations. The plaintiff
did not allege such constitutional violations in his complaint. We, therefore,
do not consider these references.
3
Department of Correction, Administrative Directive 10.6 § 5 (e) (iii)
(effective October 23, 2013) provides in relevant part: ‘‘A visit between an
inmate and the inmate’s victim shall not be permitted unless approved in
writing by the [u]nit [a]dministrator or [d]irector of [p]arole and [c]ommunity
[s]ervices or designee. . . .’’
4
In the department’s response to the plaintiff’s level two grievance, the
department indicated that the plaintiff had ‘‘exhausted the [d]epartment’s
[a]dministrative [r]emedies,’’ and that an ‘‘[a]ppeal to [l]evel [three] will not
be answered.’’
5
Title 42 of the United States Code, § 1983, provides in relevant part:
‘‘Every person who, under color of any statute, ordinance, regulation, cus-
tom, or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding
for redress, except that in any action brought against a judicial officer for
an act or omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or declaratory
relief was unavailable. . . .’’
‘‘Section 1983 provides a civil claim for damages against any person who,
acting under color of state law, deprives another of a right, privilege or
immunity secured by the [c]onstitution or the laws of the United States.
. . . Section 1983 itself creates no substantive rights; it provides only a
procedure for redress for the deprivation of rights established elsewhere.’’
(Citations omitted.) Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993), cert.
denied, 512 U.S. 1240, 114 S. Ct. 2749, 129 L. Ed. 2d 867 (1994).
6
In a section of his complaint titled ‘‘[i]ntroduction,’’ the plaintiff alleged
that the defendants were in ‘‘violation of [the first] amendment of the United
States constitution of freedom of association of families, children, relatives,
[etc.], and in violation of the due process clause of the fourteenth amendment
of the United States constitution.’’ Despite apparent references in the intro-
duction of his complaint to two constitutional violations, the plaintiff’s
complaint contained only one cause of action for ‘‘Violation of the Due
Process.’’ This claim, however, appeared to have incorporated a freedom
of association claim by reference to being denied such rights ‘‘without due
process of law.’’
7
In his complaint, the plaintiff subsequently noted that the ‘‘tort’’ refer-
enced by the plaintiff in the introduction of his complaint was actually a
‘‘tort action of civil rights under 42 U.S.C. § 1983, under the law within the
state of Connecticut.’’
8
General Statues § 52-57 (a) provides: ‘‘Except as otherwise provided,
process in any civil action shall be served by leaving a true and attested
copy of it, including the declaration or complaint, with the defendant, or
at his usual place of abode, in this state.’’
9
General Statutes § 4-165 (a) provides in relevant part: ‘‘No state officer
or employee shall be personally liable for damage or injury, not wanton,
reckless or malicious, caused in the discharge of his or her duties or within
the scope of his or her employment. . . .’’
10
The plaintiff’s objection to the defendants’ motion to dismiss failed to
address the defendants’ argument that the court lacked personal jurisdiction
over them in their individual capacities.
11
The court did not reach the defendants’ alternative arguments that the
court lacked personal jurisdiction over them in their individual capacities
or that, with respect the plaintiff’s § 1983 claims against the defendants in
their individual capacities, the defendants are entitled to qualified immunity.
12
Although ‘‘[s]tate courts have concurrent jurisdiction over claims
brought under § 1983 . . . [c]onduct by persons acting under color of state
law which is wrongful under . . . § 1983 . . . cannot be immunized by
state law.’’ (Citations omitted; internal quotation marks omitted.) Sullins
v. Rodriguez, 281 Conn. 128, 133–34, 913 A.2d 415 (2007). Accordingly, we
conclude that the court erred in determining that it lacked subject matter
jurisdiction over the plaintiff’s § 1983 claims brought against the defendants
in their individual capacities on the basis of statutory immunity pursuant
to § 4-165 (a).
13
It is undisputed that the defendants were acting in the scope of their
employment when they undertook the actions that form the basis of the
plaintiff’s complaint.
14
We note that the plaintiff has alleged in his complaint only that the
defendants denied the plaintiff contact visits with his mother. The plaintiff
has not alleged that the defendants denied the plaintiff alternative means
of associating with his mother. Courts addressing the constitutionality of
prison policies that are alleged to curtail a prisoner’s freedom of association
consider ‘‘whether alternative means are open to inmates to exercise the
asserted right . . . .’’ Overton v. Bazzetta, supra, 539 U.S. 132; see also Pell
v. Procunier, 417 U.S. 817, 823, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974)
(regulations must be ‘‘viewed in . . . light of the alternative means of com-
munication permitted under the regulations with persons outside the
prison’’). ‘‘We need not attempt to explore or define the asserted right
of association at any length or determine the extent to which it survives
incarceration because the challenged [regulation] bear[s] a rational relation
to legitimate penological interests.’’ Overton v. Bazzetta, supra, 131–32.
15
The defendants filed their initial appearance on January 29, 2019, and
their motion to dismiss and memorandum of law in support of their motion
to dismiss on February 25, 2019, within thirty days of the filing of their
appearance.
16
The plaintiff’s complaint lacks any allegations that the defendants per-
petuated wrongful conduct to promote an illegal purpose in excess of their
statutory authority.