Kaminski v. Semple

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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.