Traylor v. Awwa

• Decision Date: 26 September 2012
• Docket Number: Civil No. 3:11cv00132(AWT).
• Citation: 899 F.Supp.2d 216
• Court: U.S. District Court — District of Connecticut
• Parties: Sylvester TRAYLOR, Plaintiff, v. Bassam AWWA, Donald Leone, City of New London, Richard Blumenthal, Connecticut Behavioral Health Associates, P.C., Joseph D'Alesio, Michael L. Regan, Lawrence J. Tytla, Philip Fazzino, Robert Galvin, Connecticut Medical Insurance Company, Robert Knowles, Neil Knowles, Defendants.

899 F.Supp.2d 216

Sylvester TRAYLOR, Plaintiff,

v.Bassam AWWA, Donald Leone, City of New London, Richard Blumenthal, Connecticut Behavioral Health Associates, P.C., Joseph D'Alesio, Michael L. Regan, Lawrence J. Tytla, Philip Fazzino, Robert Galvin, Connecticut Medical Insurance Company, Robert Knowles, Neil Knowles, Defendants.

Civil No. 3:11cv00132(AWT).

United States District Court,

D. Connecticut.

Sept. 26, 2012.

Sylvester Traylor, Quaker Hill, CT, pro se.

Jeffrey C. Pingpank, Kay A. Williams, Cooney, Scully & Dowling, Hartford, CT, for Defendants.

RULING ON MOTION TO DISMISS

ALVIN W. THOMPSON, District Judge.

The Third Amended Complaint (Doc. No. 62) (“Complaint”), which is the operativecomplaint, asserts various state and federal causes of action against eleven defendants, including Connecticut Medical Insurance Company (“CMIC”).

Plaintiff Sylvester Traylor (“Traylor”) asserts claims for Denial of Accommodation in violation of Conn. Gen.Stat. § 46a–64(a)(1), (2) (Count One); Discriminatory Practice (Count Two); Retaliation Practice (Count Three); Negligent Misrepresentation (Count Four); Negligent Action (Count Five); Reckless Infliction of Emotional Distress (Count Six); violation of Due Process pursuant to 42 U.S.C. § 1983 (Count Seven); violation of Equal Protection pursuant to 42 U.S.C. § 1983 (Count Eight); unconstitutional application of Conn. Gen.Stat. § 51–88(d) (Count Nine); unconstitutional application of Conn. Gen.Stat. § 52–190a (Count Ten); Spoliation and Destruction of Evidence (Count Eleven); violation of the Civil RICO Act, 18 U.S.C. §§ 1961–1963 (the “RICO Act”) (Count Twelve); Fraud by Concealment (Count Thirteen); Breach of Oath in violation of Conn. Gen.Stat. § 1–25, the Connecticut Constitution, and the Connecticut Judicial Code of Conduct (Count Fourteen); and violation of the Connecticut Unfair Trade Practices Act, Conn. Gen.Stat. §§ 42–110a et seq. (“CUTPA”) (Count Fifteen). CMIC moves to dismiss the claims asserted against it, i.e. Counts One, Four, Five, Six, Seven, Eight, Eleven, Twelve, Thirteen and Fifteen.¹

I. Factual Allegations

The plaintiff contends that his rights have been violated in connection with the death of his wife, the late Mrs. Roberta Mae Traylor, and the underlying lawsuits he had filed against her treating physicians, among others. Traylor alleges that prior to his wife's death on March 1, 2004, she was a patient of Dr. Bassam Awwa (“Awwa”) and his practice group, Connecticut Behavioral Health Associates (“CBHA”).

Traylor has filed a number of lawsuits against various defendants arising out of his wife's death. Among these lawsuits was a medical malpractice action against Awwa and CBHA commenced in 2006. Awwa and CBHA were represented in that action by Attorney Donald Leone (“Leone”) of Chinigo, Leone & Maruzo. That action is referred to in numerous paragraphs of the Complaint.

With regard to CMIC, the Complaint alleges that CMIC was duly authorized under Connecticut law to insure licensed doctors for medical malpractice and that it insured Awwa and CBHA. The Complaint asserts, inter alia, that CMIC had a duty and obligation to disclose to Traylor information regarding destruction of his late wife's medical records and conspired with others to defraud Traylor and deny him his civil rights.

II. Legal Standard

When deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Although a complaint “does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (internal quotation marks omitted)). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). However, the plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. “The function of a motion to dismiss is ‘merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’ ” Mytych v. May Dept. Stores Co., 34 F.Supp.2d 130, 131 (D.Conn.1999), quoting Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984). “The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims.” United States v. Yale New Haven Hosp., 727 F.Supp. 784, 786 (D.Conn.1990) (citing Scheuer, 416 U.S. at 232, 94 S.Ct. 1683).

In its review of a motion to dismiss for failure to state a claim, the court may consider “only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken.” Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir.1993).

When considering the sufficiency of the allegations in a pro se complaint, the court applies “less stringent standards than [those applied to] formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Branham v. Meachum, 77 F.3d 626, 628–29 (2d Cir.1996). Furthermore, the court should interpret the plaintiff's complaint “to raise the strongest arguments [it] suggest[s].” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).

III. DiscussionA. Count One: Denial of Accommodation in Violation of Conn. Gen.Stat. § 46a–64(a)(1) and (2)

CMIC argues that Count One should be dismissed because Conn. Gen.Stat. § 46a–64 does not provide a private cause of action and, further, because CMIC is not a place of public accommodation and therefore not subject to § 46a–64(a). Section 46a–64(a)(1) and(2) provide that:

(a) It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability or physical disability, including, but not limited to, blindness or deafness of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons; (2) to discriminate, segregate or separate on account of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability, learning disability or physical disability, including, but not limited to, blindness or deafness;....

Conn. Gen.Stat. § 46a–64. In addition, § 46a–64(c) provides that “[a]ny person who violates any provision of this section shall be fined not less than twenty-five dollars or more than one hundred dollars or imprisoned not more than thirty days, or both.” Conn. Gen.Stat. § 46a–64(c).²

Although no Connecticut appellate court has ruled on whether § 46a–64(a) creates a private cause of action, decisions by the Connecticut Superior Courts have uniformly concluded that there is no private cause of action available under § 46a–64(a). See Smith v. New Horizon Computer, No. CV084026134S, 2009 WL 862749, at *2, n. 4 (Conn.Super.Ct. Mar. 10, 2009) (Section 46a–64a “was meant only to be enforced through fines or imprisonment, ... Connecticut's public accommodation statute does not provide for either an express, or implied, private cause of action under § 46a–64(a)(1) and (2)”); Batiste v. Soundview Med. Assoc., LLC, No. CV065001278, 2008 WL 1105247, at *5 (Conn.Super.Ct. Mar. 25, 2008) (Section 46a–64 “has been found to be penal in nature on several occasions and not to afford a private right of action”); McPhail v. City of Milford, No. 054506S, 1999 WL 126796, at *3 (Conn.Super.Ct. Feb. 25, 1999) (Sections 46a–64(a)(1) and 46a–64(a)(2) “have been found to be penal in nature and not to afford a private cause of action”); Wright v. City of Hartford, No. CV370570863S, 1998 WL 83670, at *3 (Conn.Super.Ct. Feb. 13, 1998) (“There is no statutory authorization to bring private actions based on a violation of” § 46a–64(a)(1) or (2)).³ In light of the provisions of § 46a–64(c), the court finds the rationale of these decisions persuasive. Because there is no private cause of action available under § 46a–64(a), Count One does not state a claim upon which relief can be granted. Therefore, Count One is being dismissed as to CMIC. ⁴

B. Count Four: Negligent Misrepresentation

Count Four asserts that all the defendants in this action, including CMIC, intentionally, knowingly, or recklessly disregarded discovery orders and federal and state law. To state a claim of negligent misrepresentation, the plaintiff must allege “(1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.” Centimark Corp. v. Village Manor Assoc. Ltd....