Devine v. Fusaro

197 Conn.App. 872

232 A.3d 1178

Michael DEVINE, Administrator (Estate of Timothy Devine)

v.Louis FUSARO, Jr., et al.

AC 42164

Appellate Court of Connecticut.

Argued January 14, 2020

Officially released June 9, 2020

Trent A. LaLima, with whom were Virginia Paino, certified legal intern, and, on the brief, Hubert J. Santos, Hartford, for the appellant (plaintiff).

Stephen R. Finucane, assistant attorney general, with whom were Matthew B. Beizer, assistant attorney general, and, on the brief, William Tong, attorney general, for the appellees (defendants).

DiPentima, C. J., and Keller and Norcott, Js.

KELLER, J.

The plaintiff, Michael Devine, administrator of the estate of Timothy Devine (Devine), appeals from the judgment of the trial court rendered after the granting of the motion filed by the defendants, Louis Fusaro, Jr., Steven Rief, Michael Avery, and Kevin Cook, to dismiss his wrongful death action, which involves the suicide of Devine after a standoff with law enforcement, including the defendants, who are members of the tactical unit of the State Police. On appeal, the plaintiff claims that the court incorrectly dismissed the action on the ground that it was barred by sovereign immunity.

In granting the motion to dismiss, the court concluded that the facts alleged in the complaint satisfied all four criteria of the test set forth in Spring v. Constantino , 168 Conn. 563, 362 A.2d 871 (1975), rendering the lawsuit an action brought against the defendants in their official capacities. We affirm the judgment of the trial court.

On December 6, 2017, the plaintiff filed a complaint alleging a wrongful death claim against the defendants.¹ The plaintiff amended the complaint on January 12, 2018. In his amended complaint, the plaintiff alleged the following relevant facts. On July 23, 2012, a detective from the Groton Police Department contacted Devine and advised him that he was under investigation for alleged misconduct. Devine declined the detective's request to go to the police station for questioning. Instead, Devine informed the Groton Police Department that he was contemplating suicide. That evening, Devine went to the University of Connecticut's Avery Point campus in Groton with a handgun. Groton police officers located Devine between 10 and 11 p.m. Members of the Groton Police Department attempted to negotiate with Devine. Negotiations were unsuccessful, and a Groton police captain requested assistance from the State Police tactical unit (tactical unit). "At approximately 11:45 p.m., the [tactical unit] including the defendants, arrived at the scene." Law enforcement officials continued to negotiate with Devine for several hours, without success.

"At 3:31 a.m. on July 24, 2012, [Fusaro] commanded members of the tactical [unit] to begin using [less than lethal] ammunition on Devine." Avery and Cook complied with Fusaro's orders and struck Devine with less than lethal ammunition. Rief subsequently ordered the tactical unit to fire less than lethal ammunition at Devine again. Avery and Cook complied with Rief's orders and struck Devine a second time. After the second round of less than lethal ammunition, Devine raised the handgun to his head and said to Rief, "Don't make me do this." Devine then lowered the handgun to his chest. Rief instructed the tactical unit to fire a third round of less than lethal ammunition at Devine. Devine was struck with less than lethal ammunition again. Devine then raised the handgun to his head and shot himself in the temple. Devine died as a result of the self-inflicted gunshot.

On February 13, 2018, the defendants filed a motion to dismiss and accompanying memorandum of law, claiming that the trial court lacked subject matter jurisdiction because the action was barred by the doctrine of sovereign immunity or, alternatively, that the defendants were statutorily immune from suit under General Statutes § 4-165. On March 15, 2018, the plaintiff filed a memorandum of law opposing the defendants’ motion to dismiss. The plaintiff also filed additional pleadings including a request for leave to amend the complaint in an attempt to remove and amend language in his amended complaint. Specifically, the plaintiff sought to correct the service addresses for three of the defendants and to eliminate language referring to the defendants as police officers who were "acting under color of law." The plaintiff also filed a partial withdrawal seeking to withdraw similar language from the complaint. The defendants objected to the plaintiff's attempts to amend the complaint. The court sustained the defendants’ objections in its decision on the motion to dismiss. On June 21, 2018, using the January 12, 2018 amended complaint as the operative complaint, the court issued an order granting the motion to dismiss. In its memorandum of decision, the court outlined how it concluded that the cause of action alleged in the complaint satisfied the four criteria of the Spring test; see Spring v. Constantino , supra, 168 Conn. at 568, 362 A.2d 871 ; and therefore was brought against the defendants in their official, rather than individual, capacities. In light of that conclusion, the court concluded that sovereign immunity shielded the defendants from suit, depriving the court of subject matter jurisdiction and, accordingly, dismissed the action.² This appeal followed.

We begin with the well established standard of review. "A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. ... [O]ur review of the trial court's ultimate conclusion and resulting grant of the motion to dismiss will be de novo." (Internal quotation marks omitted.) State v. Welwood , 258 Conn. 425, 433, 780 A.2d 924 (2001). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Filippi v. Sullivan , 273 Conn. 1, 8, 866 A.2d 599 (2005). "When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.§" (Internal quotation marks omitted.) Gold v. Rowland , 296 Conn. 186, 200–201, 994 A.2d 106 (2010). "Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court's subject matter jurisdiction. ... [A] subject matter jurisdictional defect may not be waived ... [or jurisdiction] conferred by the parties, explicitly or implicitly. ... [O]nce raised, either by a party or by the court itself, the question must be answered before the court may decide the case." (Citations omitted; internal quotation marks omitted.) Kelly v. Albertsen , 114 Conn. App. 600, 605, 970 A.2d 787 (2009).

"We have long recognized the common-law principle that the state cannot be sued without its consent. ... We have also recognized that because the state can act only through its officers and agents, a suit against a state officer [or agent] concerning a matter in which the officer [or agent] represents the state is, in effect, against the state. ... Therefore, we have dealt with such suits as if they were solely against the state and have referred to the state as the defendant. ... The doctrine of sovereign immunity protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." (Citation omitted; internal quotation marks omitted.) Tuchman v. State , 89 Conn. App. 745, 751, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). Likewise, "[t]he doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty." (Internal quotation marks omitted.) Kenney v. Weaving , 123 Conn. App. 211, 215, 1 A.3d 1083 (2010).

"Whether a particular action is one against the state is not determined solely by referring to the parties of record. ... If the plaintiff's complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims. ... To determine whether an action is against the state or against a defendant in his individual capacity, we look to the four criteria established by our Supreme Court in [ Somers v. Hill , 143 Conn. 476, 479, 123 A.2d 468 (1956) ] and as explained further in Spring v. Constantino , [supra, 168 Conn. at 563, 362 A.2d 871 ]. If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred. ... The criteria are: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Citations omitted; internal quotation marks omitted.) Kenney v. Weaving , supra, 123 Conn. App. at 215–16, 1 A.3d 1083 ; see also Sullins v. Rodriguez , 281 Conn. 128, 136, 913 A.2d 415 (2007) ("test set forth in Spring ... is an appropriate mechanism ... to determine the capacity in which the named defendants are sued in actions asserting violations of state law").

We now turn to the Spring criteria as they relate to the present case. First, consistent with the allegations in his complaint, the plaintiff concedes that the defendants held positions as state officials at the time of the relevant conduct and,...