Gross v. Rell

• Decision Date: 27 October 2009
• Docket Number: Docket No. 08-2626-cv.
• Citation: 585 F.3d 72
• Parties: Daniel GROSS, Plaintiff, Carolyn Dee King, Plaintiff-Appellant, v. M. Jodi RELL, Governor, State of Connecticut, in her Official Capacity; Maggie Ewald, Former Acting Long-Term Care Ombudsman of the Connecticut Department of Social Services, in her Individual Capacity; Thomas P. Brunnock, Probate Judge for the District of Waterbury, in his Individual Capacity; Kathleen Donovan, in her Individual Capacity; Jonathan Newman, in his Individual Capacity; Grove Manor Nursing Home, Inc., in its Individual Capacity,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

585 F.3d 72

Daniel GROSS, Plaintiff Carolyn Dee King, Plaintiff-Appellant, v. M. Jodi RELL, Governor, State of Connecticut, in her Official Capacity; Maggie Ewald, Former Acting Long-Term Care Ombudsman of the Connecticut Department of Social Services, in her Individual Capacity; Thomas P. Brunnock, Probate Judge for the District of Waterbury, in his Individual Capacity; Kathleen Donovan, in her Individual Capacity; Jonathan Newman, in his Individual Capacity; Grove Manor Nursing Home, Inc., in its Individual Capacity,^* Defendants-Appellees.

Docket No. 08-2626-cv.

United States Court of Appeals, Second Circuit.

Argued: May 20, 2009.

Question Certified: October 27, 2009.

Sally R. Zanger, Connecticut Legal Rights Project, Inc., Middletown, CT, for Plaintiff-Appellant.

Gregory T. D'Auria, Associate Attorney General for the State of Connecticut (Richard Blumenthal, Attorney General, Jane R. Rosenberg, Assistant Attorney General, Clare Kindall, Assistant Attorney General, of counsel), Hartford, CT, for Defendants-Appellees M. Jodi Rell, Maggie Ewald, and Thomas P. Brunnock.

Richard A. Roberts (Nadine M. Pare, James R. Fiore, of counsel), Nuzzo & Roberts L.L.C., Cheshire, CT, for Defendant-Appellee Kathleen Donovan.

Louis B. Blumenfeld (Lorinda S. Coon, of counsel), Cooney, Scully and Dowling,

Hartford, CT, for Defendant-Appellee Jonathan Newman.

Jeffrey R. Babbin, Wiggin and Dana, LLP, New Haven, CT, for Defendant-Appellee Grove Manor Nursing Home, Inc.

Before: JACOBS, Chief Judge, STRAUB and HALL, Circuit Judges.

STRAUB, Circuit Judge:

For nearly a year beginning in 2005, Daniel Gross, an octogenarian, had a conservatorship imposed for his estate and person against his will. He was kept in a nursing home for ten months, until a Superior Court judge in Connecticut, citing "a terrible miscarriage of justice," granted his petition for a writ of habeas corpus and ordered him released. This lawsuit stems from that unfortunate series of events.

It is alleged that a probate court judge signed a facially impossible order that did not comply with the law; the court-appointed attorney disregarded Gross's wishes to return to his home in New York; the court-appointed conservator forcibly kept Gross in a nursing home, against medical advice; and a nursing home housed Gross with a violent roommate who attacked him. The complaint further alleges that defendant Maggie Ewald, Connecticut's Long-Term Care Ombudsman at the time, did not act on complaints about Gross's treatment at the nursing home because of concerns about adverse publicity.

These allegations, if true, might make out a case against the defendants. However, Judge Thomas P. Brunnock, Conservator Kathleen Donovan, Attorney Jonathan Newman, and Grove Manor Nursing Home, Inc. ("Grove Manor") have asserted absolute immunity to suit: Brunnock has asserted judicial immunity and the other three have asserted quasi-judicial immunity. The District Court agreed and dismissed all claims against those defendants. (Claims against Governor M. Jodi Rell and Ewald, as well as certain of Gross's statutory and tort claims against Grove Manor, were dismissed for various procedural reasons.)

The federal common law defense of quasi-judicial immunity applies to Gross's federal claims, and the similar but distinct state common law defense of quasi-judicial immunity applies to Gross's state law claims. Connecticut state law is unsettled as to quasi-judicial immunity. Therefore, we certify questions to the Connecticut Supreme Court on the state law claims.

On the federal law claims, we apply the multi-factor test for quasi-judicial immunity set forth by the Supreme Court. However, in this case, application of those factors involves unsettled questions of Connecticut state statutory and common law. Therefore, we ask the Connecticut Supreme Court for its guidance as to these factors. Upon receiving its response, we will decide the federal claims.

Quasi-judicial immunity applies only to Donovan, Newman, and Grove Manor. We affirm the grant of judicial immunity as to Brunnock and affirm the dismissal of the other claims.

BACKGROUND

In 2005, Daniel Gross, a life-long New York resident, was discharged from a hospital in New York after treatment for a leg infection.¹ Shortly thereafter, he went to Waterbury, Connecticut, where his daughter lived, to convalesce. On August 8, 2005, he was admitted to Waterbury Hospital because of complications from his previous treatment. Nine days later, on August 17, 2005, Barbara F. Limauro, a hospital employee, filed an application for appointment of conservator in Waterbury Probate Court. The record does not indicate what prompted Limauro to file this application.

The pertinent statute requires the probate court, as a threshold matter, to give the respondent seven days' notice in any application for an involuntary conservatorship. CONN. GEN.STAT. ANN. § 45a-649(a).² In addition, the notice must be served on the respondent or, if doing so "would be detrimental to the health or welfare of the respondent," his attorney. Id. § 45a-649 (a)(1)(A). The statute makes no provision for giving notice to the respondent other than by personal service or service upon his attorney.

On August 25, 2005, Judge Thomas P. Brunnock issued an order of notice of a hearing to be held on September 1, 2005, in connection with Limauro's application. On August 30, 2005, the notice was served on Limauro. However, as the Connecticut Superior Court pointed out in the subsequent habeas proceeding, there was no indication that Gross himself ever received notice of the September 1 proceeding. The parties do not dispute that (1) Gross was entitled to notice of the hearing, (2) he should have been given at least seven days' notice, pursuant to Section 45a-649(a), and (3) the order dated August 25, 2005, specified that Gross should be served by August 24.

Also on August 25, 2005, Brunnock appointed Jonathan Newman to represent Gross in the involuntary conservatorship action. Newman interviewed Gross, who told Newman that he opposed the conservatorship. Newman described Gross as alert and intelligent and stated in a report that Gross wanted to live at home and manage his own affairs. Nevertheless, Newman concluded that he could not "find any legal basis in which to object to the appointment of a conservator of Daniel Gross' person and estate." Newman also signed the form "attorney for ward." The relevant statute defines a "ward" as "a person for whom involuntary representation is granted" pursuant to statute. CONN. GEN.STAT. ANN. § 45a-644(h) (emphasis added). At the time Newman signed the form, no such representation had been granted; Gross was not a "ward" but rather a "respondent." Id. § 45a-644(f).

A Superior Court judge would later say that Newman's conclusion that there was no legal basis for objecting to the involuntary conservatorship "completely blows my mind," that there was "[n]o support for it," and that "it just defies imagination.... This was counsel for Mr. Gross and it is obvious to me that he grossly under and misrepresented Mr. Gross at the time." J.A. 115.

The respondent also has a right to attend any hearing on the application. CONN. GEN.STAT. ANN. § 45a-649(b)(2). If he wishes to attend "but is unable to do so because of physical incapacity, the court shall schedule the hearing ... at a place which would facilitate attendance ... but if not practical, then the judge shall visit the respondent" before the hearing, if he is in the state. Id. (emphasis added). The next section reiterates that a judge could "hold the hearing on the application at a place within the state other than its usual courtroom if it would facilitate attendance by the respondent." Id. § 45a-650(c). The parties do not dispute that (1) Judge Brunnock never visited Gross, (2) the hearing was not held at a location that would facilitate Gross's attendance, and (3) Gross was not personally present at the hearing.

Furthermore, Connecticut law at the time only permitted a conservatorship for those who were residing or domiciled in Connecticut, id. § 45a-648(a); Gross was neither a resident nor a domiciliary. It is undisputed that Newman failed to bring this jurisdictional defect to the court's attention. (As will be explained infra, it was on the basis of this defect that the Connecticut Superior Court eventually granted Gross's petition for a writ of habeas corpus and held the conservatorship void ab initio.)

On September 1, 2005, Brunnock appointed Kathleen Donovan as conservator to manage Gross's person and estate. Connecticut state law provides that the probate court must require a probate bond and, "if it deems it necessary for the protection of the respondent, [it may] require a bond of any conservator" as well. CONN. GEN.STAT. ANN. § 45a-650(g). Donovan never posted a bond.

A week or two later, Donovan placed Gross in the "locked ward" of Grove Manor Nursing Home. Gross alleges in his complaint that his roommate was a confessed robber who threatened and assaulted him. Gross also claims that Grove Manor, with the knowledge and consent of Donovan, kept him in a room with the violent roommate after it learned of the assault, which was not reported to the police.

In April of 2006, Gross was on an authorized day visit to Long Island. While there, he experienced chest pains and was admitted to a hospital. According to the complaint, Donovan came to Long Island with an ambulance and insisted that Gross be returned to Connecticut. When the doctor indicated that this was medically unwise, Donovan nonetheless removed Gross from the hospital against his wishes and returned him to the locked ward at Grove Manor.

Gross alleges in his complaint that there was no reason to put him in the locked ward. He further alleges that Ewald, the state ombudsman, and Donovan, the conservator, were aware of these problems but failed to take steps to alleviate them. The parties do not dispute that Donovan...