Sommers v. Klug

• Decision Date: 25 April 2017
• Docket Number: FSTCV165015768S
• Court: Connecticut Superior Court
• Parties: Jeffrey Sommers v. Robert Klug et al

Jeffrey Sommers v. Robert Klug et al

No. FSTCV165015768S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

April 25, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE [#104]

Irene P. Jacobs, J.

On May 9, 2016, the plaintiff, representing himself, filed the complaint in the instant case in small claims court against the town of Wilton, the Wilton Police Department, and Lt Robert Klug. By the defendants' June 23, 2016 motion to transfer [#101], this case was transferred to the Superior Court docket. On August 8, 2016, the defendants Wilton Police Department and Klug filed the instant motion to strike the complaint [#104], along with a supporting memorandum of law [#105]. The plaintiff filed an opposing memorandum of law [#106]. The defendants subsequently filed an amended motion to strike [#111], which, correcting a court data entry error now shows the Town of Wilton as a defendant and as joining in the pending motion to strike. The matter was heard by the court on September 19, 2016.

The complaint alleges the following facts: on August 9, 2015, in Wilton, CT, while in their motor vehicle, the plaintiff and his wife observed a bicyclist operating his bike in an illegal manner. The bicycle operator made threatening and abusive comments to the plaintiff and his wife. The plaintiff delivered a written demand to the Wilton Police Department for the police department to " invoke the legal process" against the bicycle operator. Lt. Klug of the Wilton police department did not investigate the plaintiff's allegations and dismissed them.

The complaint incorporates the alleged facts as described above into three counts: In Count One, the plaintiff alleges that the defendant failed to perform a ministerial duty; that the defendant failed under the Public Duty Doctrine " to bestow upon the plaintiff" equal treatment under the law; and that the defendant denied the plaintiff his equal protection rights under the U.S. Constitution and pursuant to 42 U.S.C. 1983. In Count Two, the plaintiff alleges that the defendants' failure to investigate his claim deprived him of due process under 42 U.S.C. 1983 and Connecticut General Statutes § 29-7. In Count Three, the plaintiff alleges that the defendants' failure to investigate his claim denied him equal rights under Sections 1 and 20 of the Connecticut Constitution. The plaintiff seeks $5, 000.00 in damages, plus costs and reasonable attorney fees " recognizing his efforts on his own behalf."

The defendants base their motion to strike the plaintiff's complaint on the following grounds: (1) Connecticut General Statutes § 52-557n immunizes the town from liability based on police investigations and decision-making related to traffic violations; (2) General Statutes § 29-7 does not create a constitutionally protected right; (3) the complaint fails to state a claim for an equal protection violation under federal or state law; and (4) there is no private right of action under the state constitution equal protection clause.

DISCUSSION

Standard of Review

" Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Connecticut Practice Book § 10-39(a); Fort Trumbull Conservancy, LLC v Alves, 262 Conn. 480, 815 A.2d 1188 (2003). " A motion to strike admits all facts well pleaded." Parsons v. United Technologies Corp., 243 Conn. 66 700 A.2d 655 (1997); RK Constructors, Inc. v. Fusco Corp et al., 231 Conn. 381, 650 A.2d 153 (1994). Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 693 A.2d 293 (1997). Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007). The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 889 A.2d 810 (2006). In deciding a motion to strike, the court is limited to considering the grounds specified in the motion to strike. Meredith v. Police Commission, 182 Conn. 138, 438 A.2d 27 (1980).

Count One: Governmental Immunity

In Count One, the plaintiff alleges, " Brought under Title 42 U.S.C. Sec. 1983: Defendant failed to perform a ministerial function required of him under C.G.S., Defendant failed under the public duty doctrine to bestow on the plaintiff equal treatment under the law, and denied the plaintiff his equal protection rights under the U.S Constitution." Count One does not specify which Connecticut General Statutes section is being invoked by the plaintiff, which function he alleges as being ministerial, or to which defendant the count is addressed. However, the court is cognizant of the fact that the plaintiff represents himself. " [C]onstruction of a self-represented party's pleading should not focus on technical defects, but should afford the [self-represented party] a broad, realistic construction of the pleading under review." Macellaio v. Newington Police Department, 145 Conn.App. 426, 75 A.3d 78 (2013) (internal quotation marks and citation, omitted). " Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties. Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice . . . the purpose of which is to provide a just determination of every proceeding." Argentinis v. Fortuna, 134 Conn.App. 538, 39 A.3d 1207 (2012) (citations and internal quotation marks, omitted). Baker v. Atria Management Co., LLC, Docket No. CV-13-501-4028-S, Superior Court of Connecticut, Judicial District of Stamford-Norwalk, 10/10/13, Povodator, J. In the instant case, the court construes the plaintiff's use of the term " ministerial function" to refer to the investigation of the plaintiff's claim, construes the use of the term " C.G.S." to invoke Connecticut General Statutes § 52-557n, and construes the plaintiff's use of the term " defendant" to mean that the allegation is against the defendant Klug.

A " ministerial function" is a function that does not require the exercise of discretion by, as in this case, a municipal employee. Such functions may be mandated by city charter provision, ordinance, regulation, rule, policy, or any other directive to act in any prescribed manner. Colon v. New Haven, 60 Conn.App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). The plaintiff in the instant case has failed to allege any specific city charter provision, ordinance, regulation, rule, policy, or any other directive which mandates that the defendant investigate the plaintiff's complaint. Kumah v. Brown, Superior Court, J.D. of Fairfield Docket No. CV-08-501-5502-S, (1/7/09), Bellis, J., rev'd 127 Conn.App. 254, 14 A.3d 1012 (2011); aff'd on other issue, 307 Conn. 620, 58 A.3d 247 (2013). Moreover, he has failed to allege the existence of any policy or directive in place regarding those duties with which the defendants had failed to comply. Kolaniak v. Board of Education, 28 Conn.App. 277, 610 A.2d 193 (1992). As such, the defendant's conduct cannot be said to be ministerial.

A police officer's failure to investigate a citizen's complaint is a matter of police discretion. Brooks v Powers, 322 Conn. 907, 143 A.3d 603 (2016). Brown v. Dooling, Superior Court, J.D. of Ansonia/Milford at Milford, Docket No. 032598, (1/23/98), Flynn, J. In the instant action, the police officer was engaged in performing a discretionary function when he triaged the plaintiff's complaint. Pursuant to Connecticut General Statutes § 52-557n, a municipality may be liable for the discretionary acts of its employees if the plaintiff falls into the status of an " identifiable victim subject to imminent harm." " The imminent harm exception to discretionary act immunity [for municipalities and their employees] applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm . . ." (Citations omitted; footnote omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 907 A.2d 1188 (2006); Strycharz v. Cady, 323 Conn. 548, 148 A.3d 1011 (2016). " [T]he only identifiable class of foreseeable victims that we have recognized . . . is that of schoolchildren attending public schools during school hours because: they were intended to be the beneficiaries of particular duties of care imposed by law on school officials; they [are] legally required to attend school rather than being there voluntarily; their parents [are] thus statutorily required to relinquish their custody to those officials during those hours; and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions." Grady v. Somers, 294 Conn. 324, 984 A.2d 684 (2009) (Internal quotation marks omitted.) The plaintiff in the instant case does not fall into the only identifiable...