Monsky v. Moraghan

• Decision Date: 27 November 1996
• Docket Number: No. 3:96 CV 1951 (GLC).,3:96 CV 1951 (GLC).
• Citation: 947 F.Supp. 53
• Parties: Barbara MONSKY, For Herself and In Behalf of All Similarly Situated, Plaintiff, v. Howard J. MORAGHAN, Individually and In His Official Capacity, Defendant.
• Court: U.S. District Court — District of Connecticut

947 F.Supp. 53

Barbara MONSKY, For Herself and In Behalf of All Similarly Situated, Plaintiff, v. Howard J. MORAGHAN, Individually and In His Official Capacity, Defendant.

No. 3:96 CV 1951 (GLC).

United States District Court, D. Connecticut.

November 27, 1996.

As Modified December 3, 1996.

Nancy Burton, Redding Ridge, CT, for plaintiff.

Williams, Cooney & Sheehy by Michael C. Deakin, Goldstein & Peck, P.C. by Dennis M. Laccavole, Bridgeport, CT, for defendant.

MEMORANDUM DECISION

GOETTEL, District Judge:

Plaintiff Barbara Monsky ("Monsky") brings this suit on behalf of herself and other similarly situated women against defendant Howard J. Moraghan ("Judge Moraghan"), alleging that Moraghan unleashed his dog¹ to commit offensive acts against plaintiff and other women, thereby violating 42 U.S.C. § 1983.² Monsky claims that the dog repeatedly "poked its snout under her skirt and projected its snout upward toward the plaintiff's crotch" while she was in the clerk's office at the Danbury Superior Court. Monsky further alleges that Judge Moraghan, a judge of the Superior Court of the State of Connecticut, did nothing to restrain his dog and "broke into a smirk as he observed the plaintiff's obvious discomfort."

Judge Moraghan claims that plaintiff has not set forth facts to give rise to a non-frivolous lawsuit and, even assuming that she has, he was not acting under the color of state law as required under § 1983. Judge Moraghan moves to dismiss plaintiff's complaint for lack of subject matter jurisdiction, or in the alternative, failure to state a claim upon which relief may be granted, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. While the facts alleged in the complaint suggest that it is a frivolous action perhaps stemming from the plaintiff's (or her counsel's) dissatisfaction with the judge's decisions, we GRANT defendant's motion to dismiss (Document # 8) on the limited grounds that plaintiff has not alleged facts sufficient to support federal subject matter jurisdiction.

A district court should grant a motion to dismiss if it is clear that, under any set of facts that could be proved consistent with the allegations, no relief could be granted. Fed. R.Civ.P. 12(b)(6); H.J. Inc. v. Northwestern Bell Telephone, Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2905-06, 106 L.Ed.2d 195 (1989). In so deciding, a court is limited to the facts alleged in the complaint, which it must construe in the light most favorable to the plaintiff. Staron v. McDonald's Corp. et al., 51 F.3d 353, 355 (2d Cir.1995); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

In order to state a claim under § 1983, a plaintiff must demonstrate that a person acting under the color of state law committed the conduct complained of, and that such conduct deprived the plaintiff of a right secured by the Constitution or the laws of the United States. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988). A person acts under the color of state law when his actions are committed in the performance of any actual or pretended duty, and are not committed in the ambit of his personal pursuits. Bonsignore v. City of New York, 683 F.2d 635, 638-639 (2d Cir. 1982).

The test for state action, however, is not dogmatic. Thus, the fact that the actor is an employee of the state is not dispositive of whether his conduct was committed under the color of state law. Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996); Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir.1994). Similarly, the fact that the actor is wearing a uniform that indicates state employment, or that the conduct occurs on state grounds, is not sufficient to trigger § 1983. Gibson v. City of Chicago, 910 F.2d 1510, 1516 (7th Cir.1990); Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir.1981). Rather, in determining whether an individual's actions are taken under the color of state law, the court must examine the totality of the circumstances, the nature of the conduct, and the relationship of that conduct to the performance of the actor's official duties. Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995). For "conduct to relate to state authority, it must bear some similarity to the nature of the powers and duties assigned to the defendant[]." Dang Vang v. Vang Xiong Toyed, 944 F.2d 476, 480 (9th Cir. 1991).

Contrary to plaintiff's contention, there simply is no indicia that Judge Moraghan's actions complained of here were committed under the color of state law. Plaintiff alleges that because "at all times pertinent to the complaint [defendant] has been and still is a judge of a the Superior Court of the State of Connecticut," his actions were committed under the color of state law. That argument does not give us pause. Arguing that, because an individual is a state employee, his conduct is state action is tantamount to the tail wagging the dog: Status as a state employee is not enough to establish action under the color of state law. Pitchell v. Callan, 13 F.3d at 548.

Plaintiff also suggests that Judge Moraghan's conduct is actionable under § 1983 because he "was able to have the dog with him inside the Courthouse only because of his official position, which he abused when he employed the dog to sexually harass the Plaintiff."³ In support of her contention, plaintiff cites Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980), in which the Seventh Circuit found that a district court judge acted under the color of state law when he maliciously threatened witnesses with prosecution and perjury because they would not incriminate the plaintiff and issued an arrest warrant for plaintiff without probable cause. Id. at 333-334.

Here, by contrast, Judge Moraghan did not abuse a power he possessed by virtue of state law. In fact, we can say with certainty that there is no Connecticut State law authorizing a Superior Court judge to bring a dog into the Courthouse.⁴ Judge Moraghan's choice to bring his dog to work appears to stem from personal pursuits and such activities are outside the scope of § 1983. Bonsignore v. City of New York...