Devine v. Fusaro ( 2020 )

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MICHAEL DEVINE, ADMINISTRATOR (ESTATE OF
TIMOTHY DEVINE) v. LOUIS FUSARO, JR., ET AL.
(AC 42164)
DiPentima, C. J., and Keller and Norcott, Js.
Syllabus
The plaintiff administrator of the estate of the decedent, D, sought to recover
damages from the defendants, four members of the tactical unit of the
State Police, for the wrongful death of D following his suicide after a
standoff with law enforcement on certain public property in Groton.
The plaintiff’s complaint alleged that, in response to a Groton police
captain’s request for the assistance of the tactical unit, the defendants
arrived at the scene of the standoff, and, after several hours of unsuccess-
ful negotiations with D, who was suicidal and armed with a handgun,
they used less than lethal ammunition on him. D then shot himself in
the head and died as a result of the gunshot. The trial court granted
the defendants’ motion to dismiss on the ground that the action was
barred by the doctrine of sovereign immunity. In reaching its decision,
the court determined that the wrongful death action, as alleged in the
complaint, satisfied the four criteria of the test set forth in Spring v.
Constantino (168 Conn. 563), and, therefore, it was brought against the
defendants in their official, rather than individual, capacities. On the
plaintiff’s appeal to this court, held that the trial court properly granted
the defendants’ motion to dismiss the plaintiff’s action on the ground
of sovereign immunity: contrary to the plaintiff’s contention, the four
criteria of the Spring test were satisfied, and, therefore, the defendants
were sued in their official, rather than their individual, capacities, as
the defendants were state officials, the action against them concerned
a matter in which they were representing the state and acting in the
scope of their official police duties, the state was the real party in
interest because the damages sought by the plaintiff were premised
entirely on injuries alleged to have been caused by the official acts of
the defendants, and a judgment against the defendants would impact
how the State Police, and especially members of the tactical unit,
respond to subsequent situations in which an armed individual occupies
public property and is noncompliant with attempts to negotiate, as they
may be hesitant to use less than lethal ammunition or similar tactics
because of the risk of being sued in their individual capacities; moreover,
notwithstanding the plaintiff’s claim to the contrary, the trial court did
not improperly consider a certain State Police manual in granting the
motion to dismiss.
Argued January 14—officially released June 9, 2020
Procedural History
Action to recover damages for the wrongful death of
the plaintiff’s decedent as a result of the defendants’
alleged negligence, brought to the Superior Court in
the judicial district of New London, where the court,
Knox, J., granted the defendants’ motion to dismiss and
rendered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
Trent A. LaLima, with whom were Virginia Paino,
certified legal intern, and, on the brief, Hubert J. Santos,
for the appellant (plaintiff).
Stephen R. Finucane, assistant attorney general, with
whom were Matthew B. Beizer, assistant attorney gen-
eral, and, on the brief, William Tong, attorney general,
for the appellees (defendants).
Opinion
KELLER, J. The plaintiff, Michael Devine, administra-
tor of the estate of Timothy Devine (Devine), appeals
from the judgment of the trial court rendered after the
granting of the motion filed by the defendants, Louis
Fusaro, Jr., Steven Rief, Michael Avery, and Kevin Cook,
to dismiss his wrongful death action, which involves the
suicide of Devine after a standoff with law enforcement,
including the defendants, who are members of the tacti-
cal unit of the State Police. On appeal, the plaintiff
claims that the court incorrectly dismissed the action
on the ground that it was barred by sovereign immunity.
In granting the motion to dismiss, the court concluded
that the facts alleged in the complaint satisfied all four
criteria of the test set forth in Spring v. Constantino,
168 Conn. 563, 362 A.2d 871 (1975), rendering the law-
suit an action brought against the defendants in their
official capacities. We affirm the judgment of the
trial court.
On December 6, 2017, the plaintiff filed a complaint
alleging a wrongful death claim against the defendants.1
The plaintiff amended the complaint on January 12,
2018. In his amended complaint, the plaintiff alleged
the following relevant facts. On July 23, 2012, a detective
from the Groton Police Department contacted Devine
and advised him that he was under investigation for
alleged misconduct. Devine declined the detective’s
request to go to the police station for questioning.
Instead, Devine informed the Groton Police Department
that he was contemplating suicide. That evening, Devine
went to the University of Connecticut’s Avery Point
campus in Groton with a handgun. Groton police offi-
cers located Devine between 10 and 11 p.m. Members
of the Groton Police Department attempted to negotiate
with Devine. Negotiations were unsuccessful, and a
Groton police captain requested assistance from the
State Police tactical unit (tactical unit). ‘‘At approxi-
mately 11:45 p.m., the [tactical unit] including the defen-
dants, arrived at the scene.’’ Law enforcement officials
continued to negotiate with Devine for several hours,
without success.
‘‘At 3:31 a.m. on July 24, 2012, [Fusaro] commanded
members of the tactical [unit] to begin using [less than
lethal] ammunition on Devine.’’ Avery and Cook com-
plied with Fusaro’s orders and struck Devine with less
than lethal ammunition. Rief subsequently ordered the
tactical unit to fire less than lethal ammunition at
Devine again. Avery and Cook complied with Rief’s
orders and struck Devine a second time. After the sec-
ond round of less than lethal ammunition, Devine raised
the handgun to his head and said to Rief, ‘‘Don’t make
me do this.’’ Devine then lowered the handgun to his
chest. Rief instructed the tactical unit to fire a third
round of less than lethal ammunition at Devine. Devine
was struck with less than lethal ammunition again.
Devine then raised the handgun to his head and shot
himself in the temple. Devine died as a result of the
self-inflicted gunshot.
On February 13, 2018, the defendants filed a motion
to dismiss and accompanying memorandum of law,
claiming that the trial court lacked subject matter juris-
diction because the action was barred by the doctrine
of sovereign immunity or, alternatively, that the defen-
dants were statutorily immune from suit under General
Statutes § 4-165. On March 15, 2018, the plaintiff filed
a memorandum of law opposing the defendants’ motion
to dismiss. The plaintiff also filed additional pleadings
including a request for leave to amend the complaint
in an attempt to remove and amend language in his
amended complaint. Specifically, the plaintiff sought to
correct the service addresses for three of the defendants
and to eliminate language referring to the defendants
as police officers who were ‘‘acting under color of law.’’
The plaintiff also filed a partial withdrawal seeking to
withdraw similar language from the complaint. The
defendants objected to the plaintiff’s attempts to amend
the complaint. The court sustained the defendants’
objections in its decision on the motion to dismiss.
On June 21, 2018, using the January 12, 2018 amended
complaint as the operative complaint, the court issued
an order granting the motion to dismiss. In its memoran-
dum of decision, the court outlined how it concluded
that the cause of action alleged in the complaint satis-
fied the four criteria of the Spring test; see Spring v.
Constantino, supra, 168 Conn. 568; and therefore was
brought against the defendants in their official, rather
than individual, capacities. In light of that conclusion,
the court concluded that sovereign immunity shielded
the defendants from suit, depriving the court of subject
matter jurisdiction and, accordingly, dismissed the
action.2 This appeal followed.
We begin with the well established standard of
review. ‘‘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. . . .
[O]ur review of the trial court’s ultimate conclusion and
resulting grant of the motion to dismiss will be de novo.’’
(Internal quotation marks omitted.) State v. Welwood,
258 Conn. 425, 433, 780 A.2d 924 (2001). ‘‘[T]he doctrine
of sovereign immunity implicates subject matter juris-
diction and is therefore a basis for granting a motion
to dismiss.’’ (Internal quotation marks omitted.) Filippi
v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). ‘‘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.§
(Internal quotation marks omitted.) Gold v. Rowland,
296 Conn. 186, 200–201, 994 A.2d 106 (2010). ‘‘Claims
involving the doctrines of common-law sovereign
immunity and statutory immunity, pursuant to § 4-165,
implicate the court’s subject matter jurisdiction. . . .
[A] subject matter jurisdictional defect may not be
waived . . . [or jurisdiction] conferred by the parties,
explicitly or implicitly. . . . [O]nce raised, either by a
party or by the court itself, the question must be
answered before the court may decide the case.’’ (Cita-
tions omitted; internal quotation marks omitted.) Kelly
v. Albertsen, 114 Conn. App. 600, 605, 970 A.2d 787(2009).
‘‘We have long recognized the common-law principle
that the state cannot be sued without its consent. . . .
We have also recognized that because the state can act
only through its officers and agents, a suit against a
state officer [or agent] concerning a matter in which
the officer [or agent] represents the state is, in effect,
against the state. . . . Therefore, we have dealt with
such suits as if they were solely against the state and
have referred to the state as the defendant. . . . The
doctrine of sovereign immunity protects the state, not
only from ultimate liability for alleged wrongs, but also
from being required to litigate whether it is so liable.’’
(Citation omitted; internal quotation marks omitted.)
Tuchman v. State, 89 Conn. App. 745, 751, 878 A.2d
384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
Likewise, ‘‘[t]he doctrine of sovereign immunity pro-
tects state officials and employees from lawsuits
resulting from the performance of their duty.’’ (Internal
quotation marks omitted.) Kenney v. Weaving, 123
Conn. App. 211, 215, 1 A.3d 1083 (2010).
‘‘Whether a particular action is one against the state
is not determined solely by referring to the parties of
record. . . . If the plaintiff’s complaint reasonably may
be construed to bring claims against the defendants
in their individual capacities, then sovereign immunity
would not bar those claims. . . . To determine
whether an action is against the state or against a defen-
dant in his individual capacity, we look to the four
criteria established by our Supreme Court in [Somers
v. Hill, 143 Conn. 476, 479, 123 A.2d 468 (1956)] and as
explained further in Spring v. Constantino, [supra, 168
Conn. 563]. If all four criteria are satisfied, the action
is deemed to be against the state and, therefore, is
barred. . . . The criteria are: (1) a state official has
been sued; (2) the suit concerns some matter in which
that official represents the state; (3) the state is the
real party against whom relief is sought; and (4) the
judgment, though nominally against the official, will
operate to control the activities of the state or subject
it to liability.’’ (Citations omitted; internal quotation
marks omitted.) Kenney v. Weaving, supra, 123 Conn.
App. 215–16; see also Sullins v. Rodriguez, 281 Conn.
128, 136, 913 A.2d 415 (2007) (‘‘test set forth in Spring
. . . is an appropriate mechanism . . . to determine
the capacity in which the named defendants are sued
in actions asserting violations of state law’’).
We now turn to the Spring criteria as they relate to
the present case. First, consistent with the allegations in
his complaint, the plaintiff concedes that the defendants
held positions as state officials at the time of the rele-
vant conduct and, therefore, that the first criterion of
the Spring test is met. The plaintiff argues, however,
that the remaining three criteria are not met and, there-
fore, the defendants were sued in their individual, rather
than official, capacities. We disagree with the plaintiff
and conclude that the remaining three criteria of the
Spring test are satisfied.
With regard to the second criterion, we conclude that
the action concerns a matter in which the defendants
represented the state. The plaintiff purports that the
defendants’ use of less than lethal ammunition on
Devine was beyond the scope of their duties as police
officers and should be classified as an assault. We dis-
agree with the plaintiff’s contention because the alleged
facts contained in the amended complaint in no way
indicate that the defendants acted outside the scope of
their official duties. Rather, the complaint alleges that,
‘‘[a]t approximately 11:45 p.m., the [tactical unit] includ-
ing the defendants, arrived at the scene.’’ Further, the
complaint alleges that when Avery and Cook fired the
less than lethal ammunition at Devine, they were acting
on direct orders from Fusaro and Rief.3 The complaint
does not contain any allegations to suggest that the
defendants ceased to act pursuant to their duties as
state employees, and, therefore, we conclude that the
second criterion is met because the action concerns a
matter in which the defendants represented the state.
See Cimmino v. Marcoccia, 149 Conn. App. 350, 359,
89 A.3d 384 (2014) (holding that second criterion of
Spring test was met because defendants were ‘‘acting
in furtherance of a joint investigation authorized by
statute and initiated by the state agencies that employed
them’’); Kenney v. Weaving, supra, 123 Conn. App. 216(holding that second Spring criterion was met when
‘‘[t]he allegedly reckless actions of the defendant were
related to his duties as commissioner of the [D]epart-
ment [of Motor Vehicles]’’).
The plaintiff further argues that in determining that
the second criterion of the Spring test was met, the
court impermissibly relied entirely on language in the
complaint alleging that the defendants were ‘‘acting
under color of law.’’ We conclude, however, that the
plaintiff mischaracterizes the court’s analysis with
respect to the second criterion. The plaintiff is correct
that the court stated that ‘‘[the allegations with respect
to the defendants acting under the color of law] suffi-
ciently show that the individual defendants represent
the state.’’ However, the court further states that,
‘‘[a]lthough this is sufficient to satisfy the second crite-
rion, there is a separate bas[is] to do so. The additional
factual allegations all concern the defendants acting in
their official police functions. The plaintiff alleges that
the . . . Groton police captain, Thomas Davoren,
requested the presence of the [tactical unit], and the
four defendants responded to the scene as members of
and a part of the [tactical unit].’’ (Emphasis omitted.)
We, therefore, reject the plaintiff’s arguments and con-
clude that the court was correct in determining that
the second Spring criterion was met.
Turning to the third criterion, we conclude that the
state is the real party against whom relief is sought.
Preliminarily, the plaintiff argues that when determin-
ing whether the action was brought against the defen-
dants individually or in their official capacities, the
court should consider the fact that the plaintiff specifi-
cally pleaded that the action was against the defendants
in their individual capacities. We reject this portion
of the plaintiff’s argument for two reasons. First, we
disagree that the action was specifically pleaded against
the defendants in their individual capacities. Rather,
the operative complaint pleaded that the action was
brought against each of the defendants ‘‘who [were]
employed as law . . . enforcement officer[s] by the
state of Connecticut and acting under the color of law.’’
Second, even if the plaintiff specifically pleaded against
the defendants in their individual capacities, that fact
would not be determinative of whether the state or the
individual is the real party in interest. In Cimmino
v. Marcoccia, supra, 149 Conn. App. 359, the plaintiff
argued that ‘‘he unequivocally sued the defendants in
their individual capacities only and that these allega-
tions establish that the state is not the real party against
whom relief is sought.’’ (Internal quotation marks omit-
ted.) In rejecting the plaintiff’s argument, this court
stated: ‘‘That the plaintiff purports to sue the defendants
only in their individual capacities is not, in itself, deter-
minative of whether the state is the real party in interest.
See Sullins v. Rodriguez, [supra, 281 Conn. 136] (‘test
set forth in Spring and Miller [v. Egan, 265 Conn. 301,
828 A.2d 549 (2003)] is an appropriate mechanism . . .
to determine the capacity in which the named defen-
dants are sued in actions asserting violations of state
law’); Kenney v. Weaving, supra, 123 Conn. App. 215–16
(we do not determine whether action is against state
solely by referring to parties of record).’’ Cimmino v.
Marcoccia, supra, 359. Instead, in determining whether
the third criterion of the Spring test was satisfied, this
court also looked to whether ‘‘[t]he damages sought by
the plaintiff are premised entirely on injuries alleged
to have been caused by the defendants in performing
acts that were part of their official duties.’’ Id., 359–60.
Other cases from our Supreme and Appellate Courts
have held similarly. See, e.g., Somers v. Hill, supra,143 Conn. 480 (state was real party in interest where
damages sought were for injuries allegedly caused by
state highway commissioner in carrying out acts for
which state employed him); Macellaio v. Newington
Police Dept., 142 Conn. App. 177, 181, 64 A.3d 348 (2013)
(‘‘third criterion [of Spring test] is met because dam-
ages are sought for injuries allegedly caused by the
defendant for performing acts that are a part of his
official duties such that the state is the real party against
whom relief is sought’’); Kenney v. Weaving, supra,123 Conn. App. 216–17 (third criterion of Spring test
satisfied because ‘‘[d]amages are sought for injuries
allegedly caused by the defendant for performing acts
that are a part of his official duties’’).
Relying on the aforementioned case law, we con-
clude, on the basis of the operative complaint, that the
defendants were acting pursuant to their official duties
as members of the tactical unit when they deployed
the use of less than lethal ammunition on Devine. The
operative complaint alleges that following a request
from the Groton police captain for the presence of the
tactical unit, the defendants arrived on the scene at
approximately 11:45 p.m. on July 23, 2012. The com-
plaint also alleges that subsequently, the defendants
began the use of less than lethal ammunition at 3:31
a.m. on July 24, 2012. The complaint cannot reasonably
be construed to state that, at any point between the
defendants’ arrival and the commencement of their use
of less than lethal ammunition, the defendants ceased
to operate pursuant to their official duties as state
employees. The allegations, viewed in the light most
favorable to the plaintiff, state that the defendants
arrived at the scene of a dangerous situation in which
Devine was threatening to take his own life. Following
unsuccessful negotiation attempts, which lasted for
approximately four hours, the defendants made the
strategic decision as members of the tactical unit to
utilize less than lethal ammunition. Accordingly,
because the damages sought by the plaintiff are prem-
ised on injuries allegedly caused by the official acts of
the defendants, the state is the real party against whom
relief is sought, and the third criterion of the Spring
test is satisfied.
Finally, the fourth criterion of the Spring test is met
because the judgment, though nominally sought against
the officials, would operate to control the activities of
the state or subject it to liability. A judgment against
the defendants would impact how members of the State
Police, and especially members of the tactical unit,
respond and react to subsequent situations in which
an armed individual occupies public property and is
noncompliant with attempts to negotiate. Specifically,
at the risk of being sued in their individual capacities,
state officials may be hesitant to use less than lethal
ammunition or similar tactics. See Cimmino v. Marcoc-
cia, supra, 149 Conn. App. 360 (holding that ‘‘[a]ny
judgment against the defendants would impact the man-
ner in which state officials conduct investigations’’ initi-
ated by state child advocate and attorney general); see
also Henderson v. State, 151 Conn. App. 246, 259, 95
A.3d 1 (2014) (holding that fourth criterion of Spring
test met because ‘‘[a]ny judgment against the defen-
dants would impact the manner in which state officials
prosecute public nuisance actions and negotiate stipu-
lated judgments’’). Accordingly, we agree with the
court’s determination that the fourth criterion of the
Spring test is satisfied. Because the four criteria of the
Spring test have been satisfied, we determine that the
defendants were not sued in their individual capacities
but, rather, in their official capacities only.4
Finally, we address the plaintiff’s argument that, in
granting the motion to dismiss, the court should not
have considered facts outside the complaint, namely,
the Connecticut State Police Administration and Opera-
tions Manual (operations manual). We agree with the
defendants’ assertion that ‘‘there is absolutely nothing
in the trial court’s memorandum of decision suggesting
that the trial court relied on the language from the
operations manual. . . . Instead, the memorandum of
decision addresses only the contents of the operative
complaint.’’ Indeed, the plaintiff even states that ‘‘the
trial court did not indicate during argument or in its
memorandum of decision whether the operations man-
ual or the federal court’s interpretation of it5 factored
into its ultimate ruling.’’ (Footnote added.)The plain-
tiff’s only claim is that the defendants referred to the
operations manual in their memorandum of law in sup-
port of their motion to dismiss as well as during argu-
ment on the motion. Consistent with the weight of
authority and in the exercise of our plenary review, we
looked only to the facts in the operative complaint
and did not extend our review to the contents of the
operations manual. See, e.g., Gold v. Rowland, supra,296 Conn. 200–201. We, therefore, reject the plaintiff’s
argument and conclude that the court did not improp-
erly consider the operations manual in granting the
motion to dismiss in favor of the defendants.
Accordingly, we conclude that the court properly
granted the defendants’ motion to dismiss on the ground
of sovereign immunity.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff brought two other actions related to Devine’s death. The
plaintiff brought a civil rights action under 42 U.S.C. § 1983 (2012) in federal
court against the same officers named as defendants in this case. Estate of
Devine v. Fusaro, United States District Court, Docket No. 3:14-cv-01019
(JAM) (D. Conn. January 14, 2016). On January 14, 2016, the District Court
granted the defendants’ motion for summary judgment on the basis of quali-
fied immunity. The District Court declined to exercise supplemental jurisdic-
tion over state law claims and dismissed them without prejudice. On January
23, 2017, the United States Court of Appeals for the Second Circuit affirmed
the District Court’s judgment. See Estate of Devine v. Fusaro, 676 Fed.
Appx. 61, 64–65 (2017).
The plaintiff also filed a claim with the Connecticut Office of the Claims
Commissioner, in which he sought the state’s waiver of its sovereign immu-
nity to allow him to bring his action against the state directly for negligence.
That claim was withdrawn.
2
In its memorandum of decision, the court stated that, ‘‘[b]ecause the
court lacks subject matter jurisdiction due to sovereign immunity, the court
does not reach the claim that the action is barred by statutory immunity.’’
3
The complaint alleges: ‘‘At 3:31 a.m. on July 24, 2012, [Fusaro] com-
manded members of the tactical [unit] to begin using [less than lethal]
ammunition on Devine.’’
4
There are three recognized exceptions to sovereign immunity: ‘‘(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 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 does
not assert on appeal, nor did he assert in the action before the trial court,
that any of the exceptions apply.
5
The federal court referred to the operations manual in its order granting
the defendants’ motion for summary judgment in Estate of Devine v. Fusaro,
United States District Court, Docket No. 3:14-cv-01019 (JAM) (D. Conn.
January 14, 2016).