Kaminski v. Semple ( 2020 )

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APPENDIX
JOHN S. KAMINSKI v. SCOTT
SEMPLE ET AL.*
Superior Court, Judicial District of New Britain
File No. CV-XX-XXXXXXX-S
Memorandum filed October 31, 2018
Proceedings
Memorandum of decision on defendants’ motion to
dismiss. Motion granted.
John S. Kaminski, self-represented, the plaintiff.
Steven M. Barry, assistant attorney general, for the
defendants.
Opinion
MORGAN, J. Before the court is the defendants’
motion to dismiss the plaintiff’s complaint. In his com-
plaint, the plaintiff, John S. Kaminski, asserts claims
against the defendants, Department of Correction Com-
missioner Scott Semple (Semple), Deputy Warden
[Gary] Wright (Wright), Captain [Jeanette] Maldonado
(Maldonado), State Police Detective Sergeant [Jay] Ger-
showitz (Gershowitz), Tolland State’s Attorney Mat-
thew C. Gedansky (Gedansky), Warden Edward Maldo-
nado (E. Maldonado), and Captain VanOundenhove
(VanOundenhove). All of the defendants worked for
the state and, with the exception of Gershowitz and
Gedansky, all worked for the Department of Correc-
tion (department).
The defendants move to dismiss the complaint on
the ground that the court lacks subject matter jurisdic-
tion to adjudicate the plaintiff’s claims because the
plaintiff lacks standing and because the claims are
barred by sovereign immunity and/or statutory immu-
nity under General Statutes § 4-165. The plaintiff
opposes the motion and argues that apart from Semple,
he has sued all of the defendants in their individual
capacities and, therefore, sovereign immunity does not
bar his claims. The plaintiff does not clearly address
the immunity arguments regarding Semple. The parties
were heard on the motion on July 30, 2018.
A
Motion to Dismiss Standard of Review
‘‘A motion to dismiss . . . properly attacks the juris-
diction of the court, essentially asserting that the plain-
tiff cannot as a matter of law and fact state a cause of
action that should be heard by the court.’’ (Internal
quotation marks omitted.) Columbia Air Services, Inc.
v. Dept. of Transportation, 293 Conn. 342, 346, 977 A.2d
636 (2009). A motion to dismiss may be brought to
assert, inter alia, ‘‘lack of jurisdiction over the subject
matter . . . .’’ Practice Book § 10-30 (a) (1). ‘‘[T]he
plaintiff bears the burden of proving subject matter
jurisdiction, whenever and however raised.’’ (Internal
quotation marks omitted.) Fort Trumbull Conservancy,
LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d
801 (2003). ‘‘Claims involving the doctrines of common-
law sovereign immunity and statutory immunity, pursu-
ant to § 4-165, implicate the court’s subject matter juris-
diction.’’ Manifold v. Ragaglia, 94 Conn. App. 103, 113–
14, 891 A.2d 106 (2006). ‘‘[W]henever a court discovers
that it has no jurisdiction, it is bound to dismiss the
case . . . .’’ (Internal quotation marks omitted.) Pet v.
Dept. of Health Services, 207 Conn. 346, 351, 542 A.2d
672 (1988).
B
Sovereign Immunity
‘‘The doctrine of sovereign immunity protects state
officials and employees from lawsuits resulting from the
performance of their duty.’’ Hultman v. Blumenthal,
67 Conn. App. 613, 620, 787 A.2d 666, cert. denied, 259
Conn. 929, 793 A.2d 253 (2002). ‘‘[B]ecause 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.) Markley v. Dept.
of Public Utility Control, 301 Conn 56, 65, 23 A.3d
668 (2011).
In his complaint, the plaintiff alleges that the defen-
dants failed to report and investigate an incident involv-
ing the plaintiff and a correction officer and seeks a
‘‘declaratory acknowledgement,’’ after a trial, that the
defendants obstructed justice and thereby violated his
civil rights. His prayer for relief additionally noted that
he was not seeking financial compensation. Subse-
quently, the plaintiff filed a Motion for Permission to
Amend (No. 111.00) on May 8, 2017, seeking permission
to amend his prayer for relief to add claims for damages.
In doing so, the plaintiff specified that his claims against
the defendants were in their individual capacities only
and for money damages, with the exception of Semple,
who was sued in his official capacity.1 The plaintiff’s
motion was granted on May 22, 2017 (No. 111.01). The
defendants argue that although the plaintiff purports
to be suing the defendants (excluding Semple) in their
individual capacities, he seeks to hold them liable for
their actions in discharging their duties as employees
of the state. Thus, the defendants maintain, the plaintiff
is actually suing Wright, Maldonado, Gershowitz, Ged-
ansky, E. Maldonado, and VanOundenhove in their offi-
cial capacities.
Whether an action against a state official is, in effect,
one against the state or one against the official in his
personal capacity turns not on the plaintiff’s conclusory
allegations, but rather upon four criteria established by
our Supreme Court. Spring v. Constantino, 168 Conn.
563, 568, 362 A.2d 871 (1975). The four 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.’’ Id. All four criteria must
be met for the action to be deemed against the state
and barred. Kenney v. Weaving, 123 Conn. App. 211,
216, 1 A.3d 1083 (2010).
In the present case, the first two criteria are met:
all of the defendants were state employees performing
their duties when the alleged misconduct occurred. The
third criterion is satisfied because the damages sought
by the plaintiff are premised entirely on injuries alleged
to have been caused by the defendants in performing
or failing to perform acts that were part of their official
duties such that the state is the real party in interest
against whom relief is sought. See Macellaio v. Newing-
ton Police Dept., 142 Conn. App. 177, 181, 64 A.3d 348
(2013) (‘‘third criterion [of Spring test] is met because
damages 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’’). The fourth criterion is also
satisfied. Any judgment against the defendants would
control the activities of the state because it would
impact the way in which the Office of the State’s Attor-
ney, the state police, and the department operate, con-
duct investigations, and perform other related duties,
and subject the state to liability, as payment of any
judgment would be made by the state. See Cimmino
v. Marcoccia, 149 Conn. App. 350, 360, 89 A.3d 384
(2014) (fourth prong satisfied because any judgment
against defendants would impact manner in which state
officials conduct investigations). In sum, because the
criteria in Spring are satisfied, the court finds that the
plaintiff’s complaint alleges claims against Wright, Mal-
donado, Gershowitz, Gedansky, E. Maldonado, and
VanOundenhove in their official capacities and is thus,
in effect, an action against the state.
The court recognizes that ‘‘[t]he sovereign immunity
enjoyed by the state is not absolute’’; (internal quotation
marks omitted) Macellaio v. Newington Police Dept.,
supra, 142 Conn. App. 183 n.6; and that our Supreme
Court has recognized three narrow exceptions to the
sovereign immunity doctrine.2 See Columbia Air Ser-
vices, Inc. v. Dept. of Transportation, supra, 293 Conn.
349. Nevertheless, none of the exceptions applies in the
present case, and no evidence has been presented that
the plaintiff sought or obtained permission from the
Office of the Claims Commissioner to bring an action
against the state for monetary damages. See id., 351
(plaintiff who seeks to bring action for money damages
against state must first obtain authorization from
Claims Commissioner). Consequently, the plaintiff’s
claims against Wright, Maldonado, Gershowitz, Gedan-
sky, E. Maldonado, and VanOundenhove are barred by
the doctrine of sovereign immunity.
The plaintiff’s claim for relief against Semple in his
official capacity as commissioner of the department is
also barred by sovereign immunity. Here, the plaintiff
is seeking declaratory relief to essentially require Sem-
ple to establish procedures for reporting felonies to law
enforcement and securing evidence upon notification
of a complaint by an inmate. However, neither of the
two exceptions [pertaining to declaratory or injunctive
relief that were] recognized in Columbia Air Services,
Inc. v. Dept. of Transportation, supra, 293 Conn. 349,
is applicable to the plaintiff’s claim.3 The second excep-
tion is inapplicable because the plaintiff’s claim that
Semple did not report or adequately investigate his
claim against a correction officer or secure evidence
does not allege a substantial claim that Semple violated
the plaintiff’s constitutional rights. There are no allega-
tions by the plaintiff that clearly demonstrate an incur-
sion upon a constitutionally protected interest, and the
plaintiff does not indicate what protected interest he
has in a department official’s administrative responsibil-
ities. Likewise, the third exception does not apply
because the plaintiff does not allege that Semple acted
in excess of his statutory authority. The plaintiff further
fails to allege that Semple was engaged in any wrongful
conduct to promote an illegal purpose. In sum, the
plaintiff’s claim against Semple lacks a proper factual
basis to support the applicability of either the second
or third exception identified in Columbia Air Services,
Inc. v. Dept. of Transportation, supra, 349. Therefore,
the plaintiff’s claim against Semple is barred by sover-
eign immunity.
C
Statutory Immunity
To the extent the claims against the defendants may
be construed as against them in their individual capaci-
ties, the defendants argue the plaintiff’s claims are
barred by statutory immunity. Section 4-165 (a) pro-
vides in relevant part that ‘‘[n]o 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. . . .’’ To establish that a state
actor’s conduct is ‘‘wanton, reckless or malicious’’ and
thus falls outside the scope of § 4-165, the plaintiff must
allege conduct that ‘‘is more than negligence, more than
gross negligence . . . 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.’’ (Internal quotation marks omit-
ted.) Martin v. Brady, 261 Conn. 372, 379, 802 A.2d
814 (2002). He must allege conduct that ‘‘indicates a
reckless disregard of the just rights or safety of others or
of the consequences of the action.’’ (Internal quotation
marks omitted.) Id. ‘‘[T]o overcome the immunity pro-
vided under § 4-165, a plaintiff must produce facts from
which a reasonable person could infer that the defen-
dant acted with the requisite mental state of reckless-
ness and malice.’’ (Emphasis in original.) Manifold v.
Ragaglia, 102 Conn. App. 315, 325, 926 A.2d 38 (2007).
In the present case, the plaintiff’s complaint fails to
allege facts, even when viewed in a light most favorable
to the plaintiff, to demonstrate that Wright, Maldonado,
Gershowitz, Gedansky, E. Maldonado, or VanOunden-
hove acted in a wanton, reckless or malicious manner.
In order to determine if a state actor has acted beyond
the scope of his or her employment, ‘‘it is necessary
to examine the nature of the alleged conduct and its
relationship to the duties incidental to the employ-
ment.’’ Martin v. Brady, supra, 261 Conn. 377. Here,
none of the actions alleged to have been taken by the
defendants is arguably outside the scope of their respec-
tive employment. There are no allegations of misuse of
governmental authority for personal gain as the court
found to be actions outside the scope of a state actor’s
employment in Antinerella v. Rioux, 229 Conn. 479,
499, 642 A.2d 699 (1994) (defendant’s alleged actions
were motivated by purely personal considerations
entirely extraneous to his employer’s interest), over-
ruled in part by Miller v. Egan, 265 Conn. 301, 325, 828
A.2d 549 (2003), nor are there any allegations of the
extraneous manipulation of government authority in
order to justify erroneous conduct such as was found
to be outside the scope of a state actor’s employment
in Shay v. Rossi, 253 Conn. 134, 174, 749 A.2d 1147
(2000) (defendants’ alleged actions were solely to justify
their own prior unjustified conduct and not to carry
out government policy with which they were entrusted),
overruled in part by Miller v. Egan, 265 Conn. 301, 325,
828 A.2d 549 (2003). Once again, even when viewing
the allegations of the plaintiff’s complaint in the light
most favorable to the plaintiff, the court finds that there
are no allegations of misuse of governmental authority
for personal gain, extraneous manipulation of govern-
ment authority in order to justify erroneous conduct, or
other actions that exceed the scope of the defendants’
respective employment.
In sum, the plaintiff has not alleged any facts that
support a conclusion that any of the defendants’ con-
duct was wanton, reckless or malicious or that such
conduct was outside the scope of their respective
employment. Consequently, to the extent the plaintiff
has sued Wright, Maldonado, Gershowitz, Gedansky,
E. Maldonado, and VanOundenhove in their individual
capacities, those claims are barred by the immunity
provided by § 4-165.4
D
Standing
The plaintiff’s claim against Gedansky, in particular,
and against the other defendants to the extent such
claim is made, further fails because the plaintiff lacks
standing to assert a claim based on a failure to conduct
a criminal investigation. It is a well established principle
that ‘‘a private citizen lacks a judicially cognizable inter-
est in the prosecution or nonprosecution of another.’’
Linda R. S. v. Richard D., 410 U.S. 614, 619, 93 S. Ct.
1146, 35 L. Ed. 2d 536 (1973); see Kelly v. Dearington,
23 Conn. App. 657, 660–61 and n.4, 583 A.2d 937 (1990);
see also Leeke v. Timmerman, 454 U.S. 83, 87, 102 S.
Ct. 69, 70 L. Ed. 2d 65 (1981) (inmates alleging beating by
prison guards lack standing to challenge prison officials’
request to magistrate not to issue arrest warrants). The
plaintiff is not entitled to a criminal investigation of his
complaint by the state’s attorney or [the] police or to
a prosecution if an investigation had taken place.
Accordingly, the court lacks subject matter jurisdiction
to adjudicate the plaintiff’s claim against any of the
defendants for failure to conduct a criminal investiga-
tion because the plaintiff lacks standing to assert such
a claim against them. See Lewis v. Slack, 110 Conn.
App. 641, 643, 955 A.2d 620, cert. denied, 289 Conn. 953,
961 A.2d 417 (2008).
E
Conclusion
For the foregoing reasons, the defendants’ motion to
dismiss is GRANTED. This action is dismissed in its
entirety as to all defendants.
* Appeal dismissed in part; affirmed in part. Kaminski v. Semple, 196
Conn. App. , A.3d (2020).
1
The plaintiff also confirmed at oral argument that he was seeking declara-
tory relief as to Semple only and money damages as to all other defendants.
2
The recognized exceptions are: ‘‘(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, supra, 293 Conn. 349.
3
See footnote 2 of this opinion for exceptions (2) and (3).
4
In their memorandum of law, the defendants also argue that to the extent
the plaintiff purports to assert any federal claims for money damages against
the defendants in their individual capacities, those claims are also barred by
qualified immunity. The court recognizes that ‘‘[q]ualified 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, 563 U.S.
731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011). However, the court
does not address this ground because the plaintiff has not alleged any
federal claims.