McKinnon v. Gardner

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McKinnon v. Gardner

JAMES MCKINNON v. MR. GARDNER

CORRECTION OFFICER ET AL.

(AC 47981)

Elgo, Clark and Westbrook, Js.

Syllabus

The plaintiff appealed from the trial court’s judgment dismissing his civil

action brought against the defendants, six employees of the Department of

Correction, in both their individual and official capacities, pursuant to federal

statute (42 U.S.C. § 1983). The plaintiff claimed that the court improperly

dismissed his action for lack of personal jurisdiction. Held:

The trial court improperly granted the defendants’ motion to dismiss for

lack of personal jurisdiction, as it was undisputed that the plaintiff complied

with the service of process requirements in the relevant statutes (§§ 52-57

(a) and 52-64 (b)).

This court concluded that the doctrine of sovereign immunity deprived the

trial court of subject matter jurisdiction over the plaintiff’s claims against

the defendants in their official capacities, and, therefore, the trial court’s

dismissal of the plaintiff’s action in that regard was not improper.

This court declined to address the merits of the defendants’ alternative

ground of affirmance with respect to the doctrine of qualified immunity, as

a motion to dismiss was not the proper procedural vehicle to raise the quali-

fied immunity defense in response to claims brought pursuant to § 1983, and

the trial court did not rule on the defendants’ contention that the plaintiff’s

claims were barred by the qualified immunity defense.

Argued November 20, 2025—officially released April 28, 2026

Procedural History

Action to recover damages for alleged violations of the

plaintiff’s civil rights, and for other relief, brought to the

Superior Court in the judicial district of New London,

where the court, Spallone, J., granted the defendants’

motion to dismiss and rendered judgment thereon, from

which the plaintiff appealed to this court. Reversed in

part; further proceedings.

James McKinnon, self-represented, the appellant

(plaintiff).

McKinnon v. Gardner

Evan O’Roark, deputy solicitor general, with whom,

on the brief, was William Tong, attorney general, for

the appellees (defendants).

Opinion

ELGO, J. The self-represented plaintiff, James McKin-

non, appeals from the judgment of the trial court granting

the motion to dismiss filed by the defendants, six employ-

ees of the Department of Correction (department).1 On

appeal, the plaintiff claims that the court improperly dis-

missed his civil action for lack of personal jurisdiction. In

response, the defendants contend, as an alternate ground

of affirmance, that the dismissal of the plaintiff’s action

was proper because the plaintiff’s claims are barred by

the doctrines of sovereign and qualified immunity, which

they argue deprived the court of subject matter jurisdic-

tion. We reverse in part the judgment of the trial court.

At all relevant times, the plaintiff was an inmate at

the Corrigan Correctional Center. In April, 2023, he

commenced this action pursuant to 42 U.S.C. § 1983.

In his September 7, 2023 operative amended complaint,

the plaintiff alleged that the defendants, in both their

individual and official capacities, violated his due pro-

cess rights and his eighth amendment right to be free

from cruel and unusual punishment when moving him

to a new cell on December 30, 2021. More specifically,

he alleged that the five correctional officer defendants;

see footnote 1 of this opinion; deviated from depart-

ment policy by placing him in handcuffs and escort-

ing him to a new cell “without a supervisor being made

aware” and “without a camcorder.” The plaintiff also

alleged that the mental health worker defendant deviated

from department policy by failing to place him in mental

health housing despite his complaint that he “wasn’t

feeling well.” In addition, the plaintiff alleged that the

defendants did not conduct themselves “in a responsible

1

In his complaint, the plaintiff named as defendants five department

correctional officers, identified as “Mr. Gardner,” “Mr. Jimenez,” “Mr.

Spring,” “Mr. Nichols,” and “Mr. Speight,” and one department mental

health worker, identified as “Ms. Monica.”

McKinnon v. Gardner

respectful manner,” that the use of handcuffs “cause[d]

pain and [swelling],” and that he thereafter was unable to

“straighte[n] out [his] fingers.” In his prayer for relief,

the plaintiff requested more than $3 million in compensa-

tory damages and $120,000 in punitive damages.

The record before us indicates that the plaintiff com-

menced this action against the defendants by service of

process on April 18, 2023. The return of service pre-

pared by State Marshal Courtland Hall indicates that

Hall “made due and legal service” on all six defendants

on that date “by leaving a true and attested copy of the

original Writ, Summons, and Complaint at the office of

William Tong, Connecticut Attorney General, at least

twelve days before the session of the Court to which this

writ is returnable.” In that filing, Hall also stated that

the attorney general was “the duly authorized agent” for

the defendants. In the months that followed, no appear-

ance was filed on behalf of the defendants.2

The plaintiff thereafter filed an amended complaint,

which he served directly on the defendants.3 The record

contains a return of service prepared by Hall and dated

August 30, 2023, which was filed with the court on Sep-

tember 7, 2023. In that return of service, Hall averred

that he “left a true and attested copy” of the plaintiff’s

writ, summons, and amended complaint “with and in

the hands” of all six defendants.4

On October 27, 2023, the plaintiff filed a motion for

a default judgment due to the defendants’ failure to

2

In light of the defendants’ failure to appear, the plaintiff filed two

motions for default, on July 17 and September 18, 2023, which the

court denied.

3

At oral argument before the trial court, the plaintiff explained

that, having already served the defendants in their official capacities

in April, 2023, he served his amended complaint on the defendants in

their individual capacities in August, 2023, to ensure that they “were

served in both capacities . . . .”

4

On appeal, the defendants concede that they “waived any objection”

to the propriety of the plaintiff’s August 30, 2023 service of process

on them in their individual capacities pursuant to General Statutes §

52-57 (a). See generally Harnage v. Lightner, 328 Conn. 248, 252–54,

179 A.3d 212 (2018) (plaintiff who sues state defendant in individual

McKinnon v. Gardner

appear. In that motion, the plaintiff noted that he had

commenced this action in April, 2023, and that “more

than 150 days have elapsed since the date on which the

defendants herein were served . . . .” The court granted

that motion by order dated November 9, 2023.

On November 13, 2023, the Office of the Attorney

General filed an appearance on behalf of the defendants.

Two weeks later, the defendants filed a motion to dismiss

the plaintiff’s action for lack of personal jurisdiction. In

the accompanying memorandum of law, the defendants

alleged that the plaintiff had failed to “properly serve

the Attorney General’s Office as required by General

Statutes § 52-64.” The defendants thus asked the court

to dismiss the plaintiff’s action “in its entirety” because

the court “lacks personal jurisdiction.” The plaintiff

filed an objection to the defendants’ motion to dismiss,

to which he appended as exhibits copies of the April 18

and August 30, 2023 returns of service.

The court heard argument from the parties on the

motion on February 23, 2024. By order dated June 10,

2024, the court granted the defendants’ motion to dis-

miss due to the plaintiff’s “failure to serve process on the

attorney general . . . .” In that order, the court made no

factual findings other than stating: “The plaintiff failed

to effect proper service as required by law, therefore

depriving the court of personal jurisdiction over the

defendants.” The court thus rendered a judgment of

dismissal, and this appeal followed.

I

On appeal, the plaintiff claims that the court improp-

erly granted the defendants’ motion to dismiss for lack

of personal jurisdiction. We agree.

It is well established that “[t]he Superior Court has

no authority to render a judgment against a person who

was not properly served with process. . . . The issue of

whether a court has jurisdiction presents a question of

and official capacities is obligated to comply with service of process

requirements of both General Statutes §§ 52-57 and 52-64).

McKinnon v. Gardner

law. . . . Our review of the court’s legal conclusion is,

therefore, plenary. . . .

“[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 process on a

party in accordance with the statutory requirements is

a prerequisite to a court’s exercise of [personal] jurisdic-

tion over that party. . . . Therefore, [p]roper service of

process is not some mere technicality. . . .

“[W]hen a particular method of serving process is

set forth by statute, that method must be followed.

. . . Unless service of process is made as the statute

prescribes, the court to which it is returnable does not

acquire jurisdiction. . . . [A]n action commenced by such

improper service must be dismissed.” (Citations omit-

ted; internal quotation marks omitted.) Mosby v. Board

of Education, 191 Conn. App. 280, 284, 214 A.3d 400

(2019), cert. denied, 335 Conn. 939, 237 A.3d 1 (2020).

Section 52-64 (b) prescribes the manner in which ser-

vice of process shall be effectuated in actions by incarcer-

ated individuals against state employees in their official

capacities. It provides: “In any civil action commenced by

a person who is incarcerated against the state or any insti-

tution, board, commission, department or administrative

tribunal thereof, or against any officer, servant, agent or

employee of the state or of any such institution, board,

commission, department or administrative tribunal, as

the case may be, service of process on all defendants in

such civil action, who are sued in their official capacity,

shall be accomplished by a proper officer (1) leaving one

true and attested copy of the process, including the dec-

laration or complaint, with the Attorney General at the

office of the Attorney General in Hartford, or (2) send-

ing one true and attested copy of the process, including

the summons and complaint, by certified mail, return

receipt requested, to the Attorney General at the office

McKinnon v. Gardner

of the Attorney General in Hartford.” General Statutes

§ 52-64 (b).

The record before us unequivocally indicates that the

plaintiff complied with that statutory requirement when

he commenced this action against the defendants in

April, 2023. The return of service filed with the court

specifically states that Hall “made due and legal service”

on all six defendants on that date “by leaving a true and

attested copy” of the writ, summons, and complaint at

the Office of the Attorney General. For that reason, the

defendants on appeal concede that they “mistakenly

argued the court lacked personal jurisdiction over them

in their official capacities . . . .” The defendants further

concede that the trial court’s decision to grant their

motion to dismiss on that basis was erroneous.5

Because it is undisputed that the plaintiff complied

with the service of process requirements of both General

Statutes §§ 52-57 (a) and 52-64 (b), we conclude that

the court improperly determined that it lacked personal

jurisdiction over the defendants.

II

Although the defendants agree that the court improp-

erly concluded that it lacked personal jurisdiction, they

submit, as an alternate ground of affirmance, that the

dismissal of the plaintiff’s action in its entirety was

proper because the plaintiff’s claims are barred by the

doctrines of sovereign and qualified immunity, which

allegedly deprived the court of subject matter jurisdic-

tion.6 We address each doctrine in turn.

5

In their appellate brief, the defendants state in relevant part: “The

trial court dismissed this case in its entirety for lack of proper service.

Upon further review, the defendants now concede that the plaintiff

properly served them in their official capacities. [They] also concede

that they waived any objection to individual capacity service by fail-

ing to raise it below. So, the trial court should not have dismissed on

service grounds.”

6

The defendants raised that issue in a separate motion to dismiss

filed on December 28, 2023, in which they asked the court to dismiss

the plaintiff’s action “in its entirety” due to a lack of subject matter

jurisdiction. The plaintiff filed an objection to that motion to dismiss

McKinnon v. Gardner

A

We first consider the doctrine of sovereign immu-

nity. Our courts “have long recognized the validity of

the common-law principle that the state cannot be sued

without its consent . . . . A sovereign is exempt from suit,

not because of any formal conception or obsolete theory,

but on the logical and practical ground that there can be

no legal right as against the authority that makes the

law on which the right depends.” (Citations omitted;

internal quotation marks omitted.) Horton v. Meskill,

172 Conn. 615, 623, 376 A.2d 359 (1977). Rooted in the

recognition that subjecting “state and federal govern-

ments to private litigation might constitute a serious

interference with the performance of their functions and

with their control over their respective instrumentalities,

funds and property,” the doctrine of sovereign immunity

shields the state “from unconsented to litigation, as well

as unconsented to liability.” (Internal quotation marks

omitted.) Rocky Hill v. SecureCare Realty, LLC, 315

Conn. 265, 282, 105 A.3d 857 (2015).

As our Supreme Court has explained, “[t]he doctrine

of sovereign immunity implicates subject matter juris-

diction and is therefore a basis for granting a motion to

dismiss.”7 (Internal quotation marks omitted.) Marland

v. University of Connecticut Health Center, 350 Conn.

830, 835, 326 A.3d 1096 (2024). “A determination

regarding a trial court’s subject matter jurisdiction is

a question of law.” (Internal quotation marks omitted.)

on February 5, 2024. The record indicates that the trial court never

ruled on that motion to dismiss. Following the commencement of this

appeal, the defendants filed a motion to open and vacate the judgment

granting their motion to dismiss for lack of personal jurisdiction and

asked the court to “address [their] motion to dismiss for lack of subject

matter jurisdiction.” The court denied that motion.

7

Because sovereign immunity implicates the subject matter juris-

diction of the court, it may be raised at any time. See, e.g., Lewis v.

Gaming Policy Board, 224 Conn. 693, 698, 620 A.2d 780 (1993) (“[i]t

is a fundamental rule that a court may raise and review the issue of

subject matter jurisdiction at any time”).

McKinnon v. Gardner

Machado v. Taylor, 326 Conn. 396, 403, 163 A.3d 558

(2017). Accordingly, our review is plenary. Id.

In the present case, the plaintiff brought an action for

money damages against the defendants under 42 U.S.C.

§ 1983. The doctrine of sovereign immunity generally

bars all claims brought against state officials in their

official capacities pursuant to § 1983. See Miller v. Egan,

265 Conn. 301, 311, 828 A.2d 549 (2003) (explaining

that “[a] state, as an entity having immunity under the

eleventh amendment to the United States constitution,

is not a ‘person’ within the meaning of § 1983 and thus

is ‘not subject to suit under § 1983 in either federal

court or state court’ ” and noting that “[t]his rule also

extends to state officers sued in their official capacities”).

Although three exceptions to sovereign immunity exist;

see Columbia Air Services, Inc. v. Dept. of Transporta-

tion, 293 Conn. 342, 349–50, 977 A.2d 636 (2009); the

plaintiff has not invoked any of those exceptions. More-

over, none applies in the present case—the allegations

contained in the plaintiff’s complaint do not clearly fall

within a statutory waiver of sovereign immunity and the

plaintiff seeks only monetary damages, not declaratory

or injunctive relief.

“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. The

complaint in the present case contains no allegation that

the plaintiff obtained permission from the claims com-

missioner to institute the action for monetary relief; see

General Statutes § 4-160; and there is no such indication

in the record before us. In light of the foregoing, we con-

clude that the doctrine of sovereign immunity deprived

the trial court of subject matter jurisdiction over the

plaintiff’s claims against the defendants in their official

capacities. The court’s dismissal of the plaintiff’s action

in that regard, therefore, was not improper.8

8

As this court has observed, “[w]e may affirm a trial court’s decision

that reaches the right result, albeit for the wrong reason.” State v.

McKinnon v. Gardner

B

In their December 28, 2023 motion to dismiss for lack

of subject matter jurisdiction, the defendants also argued

that the plaintiff’s claims against them in their indi-

vidual capacities were barred by the doctrine of qualified

immunity. On appeal, the defendants renew that chal-

lenge as an alternate ground of affirmance and ask us

to affirm the judgment of dismissal as to those claims.9

We decline that invitation.

The doctrine of qualified immunity, in the context of

claims brought pursuant to § 1983, is a matter of federal

law. See Martinez v. California, 444 U.S. 277, 284 n.8,

100 S. Ct. 553, 62 L. Ed. 2d 481 (1980); Wood v. Strick-

land, 420 U.S. 308, 315–22, 95 S. Ct. 992, 43 L. Ed. 2d

214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 238–49,

94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); see also Mawhirt

v. Ahmed, 8 Fed. Appx. 125, 127 (2d Cir. 2001) (discuss-

ing “the federal law doctrine of qualified immunity” to

§ 1983 claims), cert. denied, 534 U.S. 1080, 122 S. Ct.

810, 151 L. Ed. 2d 695 (2002). That qualified immunity

“protects government officials performing discretionary

functions from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.”10 (Internal quotation marks omitted.)

Mulligan v. Rioux, 229 Conn. 716, 728, 643 A.2d 1226

(1994). “[A] claim for qualified immunity from liability

Albert, 50 Conn. App. 715, 728, 719 A.2d 1183 (1998), aff’d, 252 Conn.

795, 750 A.2d 1037 (2000).

9

In so doing, the defendants in their appellate brief acknowledge

that “[a] motion to dismiss . . . properly attacks the jurisdiction of the

court . . . . A motion to dismiss tests, inter alia, whether, on the face

of the record, the court is without jurisdiction.” (Internal quotation

marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982

A.2d 1053 (2009).

10

As our Supreme Court has explained, the qualified immunity that

protects public officials under the common law of this state “is distinct”

from that which protects public officials from claims brought pursu-

ant to § 1983. Mulligan v. Rioux, 229 Conn. 716, 728, 643 A.2d 1226

(1994). The present case does not involve any common-law claims, but

rather only ones brought pursuant to § 1983.

McKinnon v. Gardner

for damages under § 1983 raises a question of federal law

. . . and not state law. Therefore, in reviewing . . . claims

of qualified immunity [Connecticut courts] are bound

by federal precedent, and may not expand or contract

the contours of the immunity available to government

officials.” (Citation omitted; internal quotation marks

omitted.) Schnabel v. Tyler, 230 Conn. 735, 742–43,

646 A.2d 152 (1994).

Under federal law, qualified immunity operates as a

defense to a § 1983 claim. See Harlow v. Fitzgerald,

457 U.S. 800, 815, 102 S. Ct. 2727, 73 L. Ed. 2d 396

(1982) (qualified immunity “is an affirmative defense

that must be pleaded by a defendant official”); Gomez

v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 64 L.

Ed. 2d 572 (1980) (“qualified immunity is a defense” to

§ 1983 action that must be pleaded); Sebesta v. Davis,

878 F.3d 226, 233 (7th Cir. 2017) (qualified immunity “is

an affirmative defense for pleading purposes”); Askins

v. Doe No. 1, 727 F.3d 248, 254 (2d Cir. 2013) (“[q]uali-

fied immunity is a defense available . . . to individuals

sued in their individual capacity” pursuant to § 1983);

McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004)

(“[q]ualified immunity is an affirmative defense” that “is

normally asserted in an answer”). The appellate courts

of this state have long recognized that bedrock precept.

See Ham v. Greene, 248 Conn. 508, 523, 729 A.2d 740

(setting forth party’s burden “to prevail as a matter

of law on the special defense of qualified immunity”),

cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed.

2d 254 (1999); Schnabel v. Tyler, supra, 230 Conn. 742

(explaining that qualified immunity is “a defense to

civil suits brought pursuant to § 1983” and referencing

“the qualified immunity defense” throughout opinion);

see also Sullins v. Rodriguez, 281 Conn. 128, 131 nn.4

and 5, 913 A.2d 415 (2007) (defendants pleaded special

defense of qualified immunity in answer to complaint);

Mulligan v. Rioux, supra, 229 Conn. 723 (same); Camp-

bell v. Porter, 212 Conn. App. 377, 391, 275 A.3d 684

(2022) (same); Outlaw v. Meriden, 43 Conn. App. 387,

McKinnon v. Gardner

389, 682 A.2d 1112 (same), cert. denied, 239 Conn. 946,

686 A.2d 122 (1996).

In the present case, the defendants did not plead quali-

fied immunity as a special defense. Rather, they averred,

in their December 28, 2023 motion to dismiss, that the

plaintiff’s “claims must be dismissed based on a lack

of subject matter jurisdiction.” In their accompanying

memorandum of law, they argued, inter alia, that the

plaintiff’s claims for monetary damages pursuant to §

1983 were barred by the doctrine of qualified immunity.

Accordingly, the defendants maintained that “the plain-

tiff’s action should be dismissed in its entirety.”

It is well established that a motion to dismiss “properly

attacks the jurisdiction of the court, essentially assert-

ing 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.”

(Internal quotation marks omitted.) Spillane v. Lamont,

350 Conn. 119, 125, 323 A.3d 1007 (2024). “Subject

matter jurisdiction does not rest on the viability of the

claims that a court is asked to adjudicate. . . . Subject

matter jurisdiction involves the authority of a court

to adjudicate the type of controversy presented by the

action before it. . . . A court does not truly lack subject

matter jurisdiction if it has competence to entertain the

action before it. . . . Once it is determined that a [court]

has authority or competence to decide the class of cases

to which the action belongs, the issue of subject mat-

ter jurisdiction is resolved in favor of entertaining the

action. . . . It is well established that, in determining

whether a court has subject matter jurisdiction, every

presumption favoring jurisdiction should be indulged.”

(Citation omitted; emphasis in original; internal quota-

tion marks omitted.) Dept. of Public Health v. Estrada,

349 Conn. 223, 236–37, 315 A.3d 1081 (2024).

As our Supreme Court has explained, “[a] motion to

dismiss is the appropriate vehicle for challenging the

jurisdiction of the court.” Zizka v. Water Pollution

McKinnon v. Gardner

Control Authority, 195 Conn. 682, 687, 490 A.2d 509

(1985). Under our rules of practice, a motion to dis-

miss properly is used to assert “(1) lack of jurisdiction

over the subject matter; (2) lack of jurisdiction over

the person; (3) insufficiency of process; and (4) insuffi-

ciency of service of process.” Practice Book § 10-30 (a).

The “qualified immunity defense” to a § 1983 action;

Schnabel v. Tyler, supra, 230 Conn. 748; is not among

the grounds enumerated therein. Accordingly, the rel-

evant question is whether that defense implicates the

subject matter jurisdiction of the court. Cf. Marland

v. University of Connecticut Health Center, supra, 350

Conn. 835 (doctrine of sovereign immunity implicates

subject matter jurisdiction and thus is proper basis for

motion to dismiss).

Federal courts that have addressed the issue have

universally rejected the proposition that the doctrine

of qualified immunity is subject matter jurisdictional in

nature. See, e.g., Nevada v. Hicks, 533 U.S. 353, 373,

121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001) (“[t]here is no

authority whatever for the proposition that . . . qualified-

immunity defenses pertain to the court’s jurisdiction”);

Neal v. Davis, 475 Fed. Appx. 690, 692 (10th Cir. 2012)

(“qualified immunity is a defense [to a § 1983 claim] on

the merits, not a jurisdictional bar”). As the United

States Court of Appeals for the Sixth Circuit observed in

the context of a § 1983 claim, qualified immunity “is an

affirmative defense which must be affirmatively pleaded;

it is not a doctrine of jurisdictional nature that deprives

a court of the power to adjudicate a claim. . . . Since

[qualified] immunity must be affirmatively pleaded,

it follows that failure to do so can work a waiver of the

defense.” (Citations omitted.) Kennedy v. Cleveland,

797 F.2d 297, 300 (6th Cir. 1986), cert. denied sub nom.

Hanton v. Kennedy, 479 U.S. 1103, 107 S. Ct. 1334,

94 L. Ed. 2d 185 (1987); accord S.A.A. v. Geisler, 127

F.4th 1133, 1140 n.9 (8th Cir. 2025) (qualified immunity

is affirmative defense that is waived if not pleaded by

defendant); Lawless v. Freetown, 63 F.4th 61, 65 (1st

Cir. 2023) (qualified immunity is affirmative defense

McKinnon v. Gardner

that “can be waived or . . . forfeited”); Sharp v. Johnson,

669 F.3d 144, 158 (3rd Cir.) (“[q]ualified immunity is

an affirmative defense and generally must be included

in a responsive pleading or may be considered waived”),

cert. denied, 567 U.S. 937, 133 S. Ct. 41, 183 L. Ed. 2d

680 (2012); Suarez Corp. Industries v. McGraw, 202

F.3d 676, 684 n.12 (4th Cir. 2000) (“unlike a claim of

qualified immunity, [e]leventh [a]mendment immunity

is jurisdictional in nature”); Dudley v. Singleton, 508

F. Supp. 3d 1118, 1126 n.1 (N.D. Ala. 2020) (“qualified

immunity is not a jurisdictional issue”); Komutanon v.

Coler, 702 F. Supp. 1406, 1408 (N.D. Ill. 1988) (quali-

fied immunity “is not a jurisdictional bar, but rather an

affirmative defense”).

In echoing a similar sentiment, the United States Court

of Appeals for the Second Circuit expressly contrasted

qualified immunity from § 1983 claims with subject mat-

ter jurisdictional ones. As it stated: “Because qualified

immunity, unlike subject matter jurisdiction, is an affir-

mative defense that can be waived, we decline to extend

the collateral order doctrine to allow immediate appeal

from an order denying as untimely a motion asserting

that defense. . . . [S]uch an expansion is unwarranted,

since it would essentially grant defendants the right

to assert a qualified immunity defense at any time . . .

as though the affirmative defense were the equivalent

of a challenge to subject matter jurisdiction.” (Cita-

tions omitted.) Maye v. New Haven, 89 F.4th 403,

407–408 (2d Cir. 2023); see also McKenna v. Wright,

supra, 386 F.3d 435 (“[q]ualified immunity is an affirma-

tive defense” that “is normally asserted in an answer”);

McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir. 1997)

(“[t]he qualified immunity defense can be waived, either

by failure to raise it in a timely fashion . . . or by failure

to raise it with sufficient particularity” (citations omit-

ted)). The Second Circuit, whose precedent is entitled

to “special consideration” on this issue; see Schnabel

v. Tyler, supra, 230 Conn. 743; plainly is of the view

McKinnon v. Gardner

that qualified immunity from § 1983 actions does not

implicate the subject matter jurisdiction of the court.

The United States District Court for the District of

Connecticut, too, has rejected a claim that the qualified

immunity defense implicates the subject matter jurisdic-

tion of the court. As that court noted: “The existence

vel non of subject matter jurisdiction presents a funda-

mental issue; if subject matter jurisdiction is absent,

no proceedings can take place in the district court. A

qualified immunity defense [to a § 1983 action] has noth-

ing to do with that. Accordingly, there is no substance

to the . . . contention that the [c]ourt may lack subject-

matter jurisdiction in this action due to the [defendant’s]

‘qualified immunity defense.’ ” Mercer v. Schriro, 337

F. Supp. 3d 109, 125 (D. Conn. 2018).

As countless federal courts have observed, “[q]ualified

immunity is an affirmative defense that may be waived.”

Bogle v. McClure, 332 F.3d 1347, 1355 n.5 (11th Cir.

2003), cert. dismissed, 540 U.S. 1158, 124 S. Ct. 1168,

157 L. Ed. 2d 1059 (2004); see also Harlow v. Fitzger-

ald, supra, 457 U.S. 815 (qualified immunity “is an

affirmative defense that must be pleaded by a defendant

official”). Connecticut law similarly provides that special

defenses and affirmative defenses are deemed waived if

not pleaded by a defendant. See, e.g., Wilcox v. Webster

Ins., Inc., 294 Conn. 206, 222, 982 A.2d 1053 (2009)

(“[c]ollateral estoppel is an affirmative defense that may

be waived if not properly pleaded”); Stokes v. Norwich

Taxi, LLC, 289 Conn. 465, 488, 958 A.2d 1195 (2008)

(“the defendants waived the special defense of federal

preemption by failing to plead it”); State v. Littlejohn,

199 Conn. 631, 640, 508 A.2d 1376 (1986) (“[the] better

reasoned approach is not to treat the statute of limita-

tions as jurisdictional and hence nonwaivable but as

an affirmative defense and hence waivable”); Oakland

Heights Mobile Park, Inc. v. Simon, 36 Conn. App. 432,

436, 651 A.2d 281 (1994) (defendant’s “failure to assert”

special defense in pleadings “constituted a waiver of that

defense”); Fuller v. Planning & Zoning Commission, 21

McKinnon v. Gardner

Conn. App. 340, 346, 573 A.2d 1222 (1990) (“[l]ack of

capacity to maintain an action must be raised by way of

special defense and in a timely manner or will be deemed

to be waived”). Accordingly, we concur with the great

weight of federal authority holding that the qualified

immunity defense to a § 1983 action, like other special

defenses, may be waived if not properly pleaded.

Subject matter jurisdiction, by contrast, can never be

waived. That is a fundamental precept of both federal and

Connecticut law. See Gonzalez v. Thaler, 565 U.S. 134,

141, 132 S. Ct. 641, 181 L. Ed. 2d 619 (2012) (“[s]ubject-

matter jurisdiction can never be waived or forfeited”);

Fairfield Merrittview Ltd. Partnership v. Norwalk, 320

Conn. 535, 548, 133 A.3d 140 (2016) (“subject matter

jurisdiction cannot be waived by any party and can be

raised at any stage in the proceedings” (internal quota-

tion marks omitted)); Practice Book § 10-33 (“[a]ny claim

of lack of jurisdiction over the subject matter cannot be

waived”). We, therefore, conclude that the qualified

immunity defense to a § 1983 action does not implicate

the subject matter jurisdiction of the court.11 To hold

11

To the extent that the precedent of this court may be read to suggest

otherwise; see, e.g., Jan G. v. Semple, 202 Conn. App. 202, 218, 244

A.3d 644, cert. denied, 336 Conn. 937, 249 A.3d 38, cert. denied, ___

U.S. ___, 142 S. Ct. 205, 211 L. Ed. 2d 88 (2021); Braham v. Newbould,

160 Conn. App. 294, 301–307, 124 A.3d 977 (2015); Traylor v. Ger-

ratana, 148 Conn. App. 605, 612, 88 A.3d 552, cert. denied, 312 Conn.

901, 91 A.3d 908, and cert. denied, 312 Conn. 902, 112 A.3d 778, cert.

denied, 574 U.S. 978, 135 S. Ct. 444, 190 L. Ed. 2d 336 (2014); Tuchman

v. State, 89 Conn. App. 745, 750 and 762–63 n.7, 878 A.2d 384, cert.

denied, 275 Conn. 920, 883 A.2d 1252 (2005); we are bound by deci-

sions of the United States Supreme Court because qualified immunity

in the context of § 1983 claims is a matter of federal law. See Schnabel

v. Tyler, supra, 230 Conn. 743 (Connecticut state courts “are bound by

federal precedent” on qualified immunity claims under § 1983); Mul-

lin v. Guidant Corp., 114 Conn. App. 279, 288, 970 A.2d 733 (United

States Supreme Court precedent is binding on this court on matters

of federal law), cert. denied, 292 Conn. 921, 974 A.2d 722 (2009). As

previously indicated in this opinion, the United States Supreme Court

in Gomez v. Toledo, supra, 446 U.S. 640, held that qualified immunity

is an affirmative defense to § 1983 claims that must be pleaded by a

defendant. Affirmative defenses, unlike subject matter jurisdiction,

may be waived under federal law. See Maye v. New Haven, supra, 89

McKinnon v. Gardner

otherwise would “expand . . . the contours of the immu-

nity available to government officials” under federal

law; Schnabel v. Tyler, supra, 230 Conn. 743; which this

state court is not permitted to do. Id.; see also Mulligan

v. Rioux, supra, 229 Conn. 756 (Berdon, J., concurring

in part) (“[W]ith regard to qualified immunity [in the

context of § 1983 claims] we are not free to chart our own

course. Rather, [Connecticut courts] must be guided by

federal precedent, and can neither expand nor contract

the scope of this defense.”); cf. Maye v. New Haven,

supra, 89 F.4th 408 (declining to expand collateral order

doctrine because “it would essentially grant defendants

the right to assert a qualified immunity defense at any

time . . . as though the affirmative defense were the

equivalent of a challenge to subject matter jurisdiction”).

For that reason, the motion to dismiss is not the proper

procedural vehicle to raise the qualified immunity defense

in our courts in response to § 1983 claims. In this state,

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.” (Internal quotation marks

omitted.) Spillane v. Lamont, supra, 350 Conn. 125;

accord Glens Falls Ins. Co. v. Somers, 146 Conn. 708,

712, 156 A.2d 146 (1959) (“[a] motion to dismiss is not a

proper vehicle for an attack on the sufficiency of a plead-

ing”); Caltabiano v. Phillips, 23 Conn. App. 258, 265, 580

A.2d 67 (1990) (“[a] motion to dismiss does not test the

sufficiency of a cause of action and should not be granted

on other than jurisdictional grounds”). Special defenses,

therefore, are not properly raised in motions to dismiss.

See, e.g., Grant v. Bassman, 221 Conn. 465, 472–73,

604 A.2d 814 (1992) (claim that injured plaintiff made

exclusive election of workers’ compensation “is properly

F.4th 407; Bogle v. McClure, supra, 332 F.3d 1355 n.5. Accordingly,

the court’s holding in Gomez can only be read to mean that the qualified

immunity defense to a § 1983 action is not jurisdictional in nature, as

numerous federal courts have held.

McKinnon v. Gardner

raised by a special defense” and motion to dismiss was not

“the proper procedural vehicle” to plead that “challenge

to the plaintiffs’ complaint”); Zizka v. Water Pollution

Control Authority, supra, 195 Conn. 687 (special defense

“may not be raised by a motion to dismiss”); Gianetti v.

Connecticut Newspapers Publishing Co., 136 Conn. App.

67, 75, 44 A.3d 191 (“[statute of limitations] defenses

are appropriately raised as special defenses . . . and not

in motions to dismiss”), cert. denied, 307 Conn. 923, 55

A.3d 567 (2012); Sullivan v. Thorndike, 104 Conn. App.

297, 309–10, 934 A.2d 827 (2007) (concluding that trial

court “improperly based its granting of the defendant’s

motion to dismiss on the defendant’s special defenses”),

cert. denied, 285 Conn. 907, 942 A.2d 415 (2008), and

cert. denied, 285 Conn. 908, 942 A.2d 416 (2008); John

H. Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn.

App. 599, 606, 821 A.2d 774 (motion to dismiss improp-

erly granted “when based on a special defense”), cert.

denied, 264 Conn. 919, 828 A.2d 617 (2003). Because

the qualified immunity defense to a § 1983 action is a

special defense, it cannot properly be raised in a motion

to dismiss in Connecticut’s state courts.

Rather, the qualified immunity defense to § 1983

actions, like other special defenses, properly is raised in

either a motion to strike, in which a party challenges the

legal sufficiency of a pleading; see Practice Book § 10-39;

or a motion for summary judgment, in which a party

contends that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law.12

See Practice Book § 17-49. A motion to strike under our

rules of practice is the functional equivalent of a motion

to dismiss in federal court pursuant to rule 12 (b) (6) of

12

When the issue has arisen in the context of state law, this court

similarly has held that the qualified immunity conferred on attorneys

appointed to represent minor children pursuant to General Statutes §

46b-54 “is properly pleaded as a special defense and [is properly] raised

by using either a motion to strike or a motion for summary judgment.”

Carrubba v. Moskowitz, 81 Conn. App. 382, 385, 840 A.2d 557 (2004),

aff’d, 274 Conn. 533, 877 A.2d 773 (2005).

McKinnon v. Gardner

the Federal Rules of Civil Procedure,13 and, when prop-

erly asserted, “attacks the sufficiency of the pleadings.”

Egri v. Foisie, 83 Conn. App. 243, 247, 848 A.2d 1266,

cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). As this

court has noted, “[t]he distinction between the motion to

dismiss and the motion to strike is not merely semantic.

If a motion to dismiss is granted, the case is terminated,

save for an appeal from that ruling. . . . The granting

of a motion to strike, however, ordinarily is not a final

judgment because our rules of practice afford a party

a right to amend deficient pleadings.” (Citation omit-

ted.) Id., 249. That “critical distinction”; id.; provides

further support for our conclusion that the qualified

immunity defense is not properly raised in a motion to

dismiss under our rules of practice.

The qualified immunity defense to § 1983 actions also

may be raised by way of a motion for summary judgment.

As several courts have observed, summary judgment

often is a preferred method for raising that defense.

See, e.g., Mouille v. Live Oak, 977 F.2d 924, 926 (5th

Cir. 1992) (“[q]ualified immunity is normally raised

prior to trial at the summary judgment stage”), cert.

denied sub nom. Liberda v. Live Oak, 508 U.S. 951,

113 S. Ct. 2443, 124 L. Ed. 2d 660 (1993); Cartier v.

Lussier, 955 F.2d 841, 844 (2d Cir. 1992) (“The [United

States] Supreme Court has expressly encouraged the

use of summary judgment when qualified immunity is

13

See, e.g., Culverhouse v. Paulson & Co., 813 F.3d 991, 993–94 (11th

Cir. 2016) (explaining that District Court “incorrectly described [the

plaintiff’s deficient pleading] as jurisdictional” and “should have dis-

missed [the] complaint for failure to state a claim [pursuant to] Fed. R.

Civ. P. 12 (b) (6), not for lack of subject-matter jurisdiction [pursuant to]

Fed. R. Civ. P. 12 (b) (1)”); Norex Petroleum Ltd. v. Access Industries,

Inc., 631 F.3d 29, 32 (2d Cir. 2010) (challenge to legal sufficiency of

pleading “is properly analyzed as a merits question pursuant to Fed. R.

Civ. P. 12 (b) (6), not as a question of subject matter jurisdiction raised

by Fed. R. Civ. P. 12 (b) (1)”), cert. dismissed, 564 U.S. 1053, 133 S.

Ct. 21, 180 L. Ed. 2d 913 (2011); cf. Carter v. Ludwick, 139 F.4th 982,

989 (8th Cir. 2025) (“[q]ualified immunity is an affirmative defense

[that] will be upheld on a [Fed. R. Civ. P.] 12 (b) (6) motion only when

the immunity is established on the face of the complaint” (internal

quotation marks omitted)).

McKinnon v. Gardner

raised as a defense. The objective reasonableness test was

designed to facilitate this summary device as a means

quickly to extricate government officials from defend-

ing insubstantial suits.”); Mulligan v. Rioux, supra,

229 Conn. 736 n.23 (“[b]ecause the defense of qualified

immunity has been construed as an immunity from suit,

not a mere defense to liability . . . when there are no

unresolved factual issues material to its applicability,

it is preferable for the trial court to decide the issue

of qualified immunity as a matter of law on a pretrial

motion for summary judgment” (citation omitted)). In

this regard, we note that parties in this state may move

for summary judgment at any time. See Practice Book

§ 17-44 (“any party may move for a summary judgment

as to any cause of action or defense as a matter of right

at any time if no scheduling order exists and the case has

not been assigned for trial”); see also Joe’s Pizza, Inc.

v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8,

675 A.2d 441 (1996) (“a party may move for summary

judgment at any time”); Nash v. Roland Dumont Agency,

Inc., Docket No. CV-XX-XXXXXXX-S, 2018 WL 6721442,

*1 (Conn. Super. November 21, 2018) (“[p]rior to filing

an answer, the defendants filed a motion for summary

judgment, as permitted by Practice Book § 17-44”).

It is well established that “once the issue of subject

matter jurisdiction is raised, it must be immediately

acted upon by the court.” (Internal quotation marks

omitted.) Wolfork v. Yale Medical Group, 335 Conn.

448, 464 n.9, 239 A.3d 272 (2020). That is not the case

here, as the qualified immunity defense to a § 1983 action

does not implicate the subject matter jurisdiction of the

court. In addition, we note that the trial court in the

present case did not rule on the defendants’ contention

that the plaintiff’s claims were barred by the qualified

immunity defense. We also are mindful of the critical

distinction between motions to dismiss and motions to

strike under our rules of practice. See Egri v. Foisie,

supra, 83 Conn. App. 249. Were this court to affirm the

dismissal of the plaintiff’s claims against the defendants

in their individual capacities on the qualified immunity

McKinnon v. Gardner

defense—despite the fact that the qualified immunity

defense to § 1983 actions is not jurisdictional in nature—

the plaintiff would be denied his “right to amend the

deficient pleading.”14 Baskin’s Appeal from Probate, 194

Conn. 635, 640, 484 A.2d 934 (1984); see also Practice

Book § 10-44. For all of those reasons, we decline to

address the merits of the defendants’ alternate ground

of affirmance with respect to the doctrine of qualified

immunity. The defendants are free to renew that chal-

lenge on remand before the trial court.

In light of the foregoing, we conclude that the court

improperly dismissed the plaintiff’s action against the

defendants in their individual capacities for lack of per-

sonal jurisdiction.

The judgment is reversed in part and the case is

remanded for further proceedings in accordance with

this opinion.

In this opinion the other judges concurred.

14

We recognize that, on occasion, our courts have treated a procedur-

ally incorrect motion to dismiss as a motion to strike when it is uncontro-

verted that the plaintiff could not add anything to its complaint by way

of amendment to avoid the deficiencies of the original complaint. See,

e.g., Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 501–502,

815 A.2d 1188 (2003); McCutcheon & Burr, Inc. v. Berman, 218 Conn.

512, 527–28, 590 A.2d 438 (1991). We decline to do so here, as the trial

court neither heard argument on the legal sufficiency of the plaintiff’s

complaint nor ruled on that issue. Moreover, the defendants have not

argued that the right to amend a deficient pleading memorialized in

Practice Book § 10-44 would be unavailing to the plaintiff in this case.