Opinion
No. CV 06 5006612 S
September 20, 2007
MEMORANDUM OF DECISION
Before the court is the defendant's motion to dismiss.
On November 3, 2006, the plaintiff, Annabelle D'Amicis, individually, and as the administratrix of the estate of her son Michael D'Amicis (decedent), filed a four-count amended complaint against the defendants: Peter O'Meara, the commissioner of mental retardation (commissioner); the department of mental retardation (department); the state of Connecticut (state); and three employees, Terrance Granger, Darrell Green and Kenya Martin-Adams (employees).
The plaintiff alleges the following facts. The decedent was under the defendants' care as a resident in a group home facility located in Hamden, Connecticut. After a pork chop bone had become lodged in his throat on February 27, 2002, he was diagnosed with dysphagia, or difficulty swallowing. He was subsequently placed on a restricted diet of finely ground-up foods. The defendants' plan of care for the decedent also called for other precautions to keep him from obtaining large pieces of food. On March 1, 2006, as a result of the defendants' negligent supervision, he choked to death on a meatball that had been left in an open container on the kitchen counter.
In count one through three, the plaintiff, as administratrix, sets forth the following causes of action: (1) negligence pursuant to General Statutes § 19a-24(a); (2) violation of the decedent's fourteenth amendment rights pursuant to 42 U.S.C. § 1983; and (3) violation of the decedent's civil rights under General Statutes § 17a-238. In count four, the plaintiff alleges an individual claim for, inter alia, loss of companionship.
General Statutes § 19a-24(a) provides in relevant part: "Any claim for damages in excess of seven thousand five hundred dollars on account of any official act or omission of the Commissioner of Public Health or the Commissioner of Mental Retardation or any member of their staffs . . . shall be brought as a civil action against the commissioners in their official capacities . . ."
The fourteenth amendment to the United States constitution, § 1, provides in relevant part: "No state shall . . . deprive any person of life, liberty, or property, without due process of law . . ."
Title 42 of the United States Code, § 1983, provides in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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 . . ."
General Statutes § 17a-238 is entitled "Rights of persons under supervision of Commissioner of Mental Retardation," and provides in relevant part: "(a) No person placed or treated under the direction of the Commissioner of Mental Retardation in any public or private facility shall be deprived of any personal, property or civil rights, except in accordance with due process of law (b) Each person placed or treated under the direction of the Commissioner of Mental Retardation in any public or private facility shall be protected from harm and receive humane and dignified treatment which is adequate for such person's needs and for the development of such person's full potential at all times, with full respect for such person's personal dignity and right to privacy consistent with such person's treatment plan as determined by the commissioner . . . (e) The Commissioner of Mental Retardation shall ensure that each person placed or treated under the commissioner's direction in any public or private facility is afforded the following rights and privileges: (1) The right to prompt, sufficient and appropriate medical and dental treatment . . . (8) the right to a nourishing and well-balanced diet . . ."
On January 16, 2007, the defendants filed a motion to dismiss on the ground that sovereign and statutory immunity deprive the court of subject matter jurisdiction. Specifically, the state, department and employees move to dismiss as to the first, third and fourth count, and the state, department and commissioner move to dismiss as to the second count. The defendants have submitted a memorandum of law in support of the motion. On February 22, 2007, the plaintiff filed a memorandum of law in opposition to the motion. On May 10, 2007, the defendants filed a reply memorandum. On May 11, 2007, the employees filed a reply memorandum. The matter was heard at the short calendar on May 29, 2007.
Although the motion to dismiss is worded broadly and suggests that all defendants move to dismiss the entire complaint, it is clear from the order page attached to the motion, as well as the memorandum of law, that the motion is more limited as stated in the body of this memorandum.
It is noted that the plaintiff states in her memorandum of law that she "does not object to the Motion to Dismiss as to the defendants State of Connecticut and Department of Mental Retardation and will withdraw the four counts as to these two defendants" and that she "will withdraw the second count as to the Commissioner." Nevertheless, the plaintiff has yet to file the appropriate withdrawal and those counts remain pending as to those defendants. Because of the concession made by the plaintiff, however, the court grants the motion to dismiss on all four counts as to the state and department, and on count two as to the commissioner.
"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 . . . [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Citation omitted; internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).
"[When] the motion to dismiss filed by the state defendants does not seek to introduce facts outside of the record it . . . admits all well pleaded facts, the complaint being construed most favorably to the plaintiff . . . It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases." (Citation omitted; internal quotation marks omitted.) Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983).
"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." (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). See also Vejseli v. Pasha, 282 Conn. 561, 569-70, 923 A.2d 688 (2007) (analysis of distinction between immunity from suit and from liability).
In the first count, the plaintiff sets forth a negligence claim pursuant to § 19a-24 against the defendants. The defendants argue that, except as to the commissioner, the claim is barred by sovereign and statutory immunity. The plaintiff counters that General Statutes § 19a-24 permits suit to be brought against not only the commissioner but also his employees. The employees maintain that the commissioner is the only defendant subject to a § 19a-24 suit.
Section 19a-24(a) provides in relevant part: "Any claim for damages in excess of seven thousand five hundred dollars on account of any official act or omission of the Commissioner of Public Health or the Commissioner of Mental Retardation or any member of their staffs . . . shall be brought as a civil action against the commissioners in their official capacities . . ."
In Canning v. Lensink, 221 Conn. 346, 350, 603 A.2d 1155 (1992), the plaintiff alleged that his son's death, which occurred while the son was a patient in a mental health facility operated by the state, resulted from the negligence of the commissioner of mental retardation, his agents, staff and employees. He argued that § 19a-24 should essentially be treated as an indemnification statute, which substituted for the common-law personal liability of negligent state employees the liability of the commissioner and recourse to state funds for payment of judgments. Id., 355. The court rejected the plaintiff's argument, holding that § 19a-24 must be construed as providing for "the substitution of the state, represented by the commissioner, for the negligent employee as the defendant." (Emphasis added.) Id., 356.
In this case, the plaintiff's argument that § 19a-24(a) does not shield employees from suit is unavailing under the clear holding in Canning. The sole defendant amenable to § 19a-24 suit is the commissioner. A statutory construction of § 19a-24 further supports this conclusion. "When construing a statute, [the] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, [the court] seek[s] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . Moreover, in seeking to ascertain the meaning of a statute, [the court] must consider General Statutes § 1-2z, which provides: The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Citation omitted; internal quotation marks omitted.) Chatterjee v. Commissioner of Revenue Services, 277 Conn. 681, 689, 894 A.2d 919 (2006).
"Additionally, it is axiomatic that [courts] strictly construe legislative exceptions to the common-law doctrine of sovereign immunity . . . Therefore, because the state has permitted itself to be sued in certain circumstances, [the Supreme Court] has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Citation omitted; internal quotation marks omitted.) Id., 691.
Furthermore, "[i]t is a basic tenet of statutory construction that the legislature did not intend to enact meaningless provisions . . . Accordingly, care must be taken to effectuate all provisions of the statute . . . Moreover, statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . . When one construction thwarts the purpose of an enactment and another does not, the latter construction, where possible, is preferred." (Citations omitted; internal quotation marks omitted.) Id., 691-92.
The text of § 19a-24(a) is clear in exposing only the commissioner to suits based on an employee's negligence. Its waiver of immunity to suit is expressly limited to the commissioner alone and had the legislature intended to extend the waiver to employees it could have done so. "[The] court cannot, by judicial construction, read into legislation provisions that clearly are not contained therein." (Internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 682, 911 A.2d 300 (2006). Moreover, to conclude that § 19a-24(a) also exposes employees to suit requires reading the subsection in isolation. Other provisions of the statute immunize employees from personal liability absent wanton or wilful conduct. Against this backdrop, § 19a-24(a) resists the plaintiff's interpretation. Finally, it is beyond the court's province to whittle away sovereign immunity by expanding the limited waiver in § 19a-24(a). "It is a matter for the legislature, not [the] court, to determine when our state's sovereign immunity should be waived." Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987). Thus, the court grants the motion to dismiss on the first count as to the employees.
General Statutes § 19a-24(c) provides: "No employee or staff member of said commissioners or any superintendent, director, employee or staff member of any chronic disease hospital or state training school or state mental retardation region shall be held personally liable in any civil action for damages on account of any official act or omission not wanton or wilful of such superintendent, director, employee or staff member." General Statutes § 4-165(a) provides: "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. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter."
The plaintiff relies on Pattavina v. Mills, Superior Court, judicial district of Middlesex, Docket No. CV 96 0080257 (August 23, 2000, Higgins, J.) (27 Conn. L. Rptr. 521, 525), in which the court stated, quoting Duguay v. Hopkins, supra, 191 Conn. 232: "General Statutes § 19a-24 was intended by the legislature to apply to all civil actions against the commissioner . . . or any member of their staffs." (Internal quotation marks omitted.) The court in Pattavina rejected an employee's sovereign immunity defense on the basis of this language. The quote is, however, incomplete. The court in Duguay continued: "When the state waives sovereign immunity by statute, however, a party who wishes to sue under the legislative waiver must come clearly within its provisions . . . The commissioner of mental retardation is the only state defendant named in § 19a-24 against whom suit could be brought in his official capacity for actions performed within the purview of this case." (Citations omitted; internal quotation marks omitted.) Duguay v. Hopkins, supra, 232.
In the second count, the plaintiff alleges that the defendants violated the decedent's rights under the fourteenth amendment to the United States constitution in that they violated his interests "to be placed in reasonably safe conditions, to receive adequate care, medical and otherwise, and to be protected from harm." The plaintiff seeks redress pursuant to 42 U.S.C. § 1983 from the employees in their individual capacities. As previously stated, the defendants move to dismiss on count two only as to the state, department and commissioner, and the plaintiff has conceded that the motion may be granted as to those parties on this count. Accordingly, the court grants the motion to dismiss as to count two.
In the third count, the plaintiff alleges that the defendants violated the decedent's civil rights under General Statutes § 17a-238. The defendants argue that, except as to the commissioner, the claim is barred by sovereign and statutory immunity. The plaintiff argues that the action can be maintained against both the commissioner and employees pursuant to § 19a-24. The employees counter that § 17a-238 contains no waiver of immunity and that there is no cause of action based on § 17a-238. Alternatively, they contend that the plaintiff's claim is barred except as to the commissioner.
Section 17a-238 is entitled "Rights of persons under supervision of Commissioner of Mental Retardation." General Statutes § 17a-238(a) provides: "No person placed or treated under the direction of the Commissioner of Mental Retardation in any public or private facility shall be deprived of any personal, property or civil rights, except in accordance with due process of law." General Statutes § 17a-238(b) provides that each person placed or treated under the commissioner's direction "shall be protected from harm and receive humane and dignified treatment . . . with full respect for such person's personal dignity and right to privacy . . ." General Statutes § 17a-238(e) enumerates such person's rights, which include, inter alia, the right to "prompt, sufficient and appropriate" medical treatment and the right to a "nourishing and well-balanced diet." General Statutes § 17a-238(e)(1) and (2).
Directly on point is the decision in Swan v. Residential Management Services, Inc., Superior Court, judicial district of Waterbury, Docket No. 127097 (June 10, 1996, Sullivan, J.) (17 Conn. L. Rptr. 211). In Swan, the plaintiff alleged that she was assaulted on numerous occasions at a group home that was under the supervision of the commissioner of mental retardation. The commissioner's arguments against the plaintiff's § 17a-238 claim in Swan mirror those advanced by the defendants in this case.
The court, Sullivan, J., denied the commissioner's motion to dismiss by reaching two key conclusions. First, the court determined that § CT Page 15925 17a-238 creates a cause of action for conduct inconsistent with its provisions. The court analyzed the language of § 17a-238 alongside other statutes, the predecessors to General Statutes §§ 17a-541 and 17a-542, which concern persons confined for treatment of mental illness. The court found the "guaranty of rights" under the statutes "practically identical." Id., 212. Because the statutes relating to mental illness have been interpreted to establish new tort liability; Mahoney v. Lensink, 213 Conn. 548, 563, 569 A.2d 518 (1990); the court reasoned that § 17a-238 similarly provides a statutory basis for an independent cause of action. Swan v. Residential Management Services, Inc., supra, 212. Second, the court determined that although § 17a-238 contains no express waiver of sovereign immunity, the waiver contained in § 19a-24 applies to claims based on § 17a-238, because § 19a-24(a), by its terms, governs "any" claim for damages. Id., 211.
General Statutes § 17a-541 provides in relevant part: "No patient hospitalized or treated in any public or private facility for the treatment of persons with psychiatric disabilities shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and enter into contracts, except in accordance with due process of law . . ." General Statutes § 17a-542 provides in relevant part: "Every patient treated in any facility for treatment of persons with psychiatric disabilities shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy."
The court's analysis in Swan is instructive in resolving the motion to dismiss as to the third count. That is, the plaintiff's action set fourth in the third count is indeed an independent cause of action founded on § 17a-238, but it can be brought only against the commissioner. Accordingly, the court grants the motion to dismiss on the third count as to the employees because § 19a-24(a) does not authorize an action against any defendant other than the commissioner.
The fourth count contains several allegations against the defendants including, inter alia, allegations of loss of companionship. Because the arguments raised by the parties are identical to those resolved in the analysis of the first count, an identical result must obtain as to the fourth count. Thus, the court grants the motion to dismiss on the fourth count as to the employees.
CONCLUSION
For the foregoing reasons, the court grants the motion to dismiss on all four counts as to the state of Connecticut and The Department of Mental Retardation, on count two as to the commissioner, and on count one, three and four as to the employees.