A. et al v. Torrington et al

Filing 49

ORDER: Defendants' Motion 26 to Dismiss is GRANTED, Plaintiffs' Motion 32 for Reconsideration is GRANTED to the extent that Plaintiffs' arguments were considered, and the Recommended Ruling 35 is ADOPTED, with the modification that the Court declines to exercise supplemental jurisdiction over Plaintiffs' state constitutional claims. Signed by Judge Janet Bond Arterton on 09/10/2012. (Flagg, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
M.A. et al.,
Plaintiffs,

Civil No. 3:10cv1890 (JBA)

v.
City of Torrington et al.,
Defendants.

September 10, 2012

Ruling on Plaintiffs’ Objections to Recommended Ruling
Magistrate Judge Margolis issued a Recommended Ruling [Doc. # 35] (“Rec. Ruling”)
on Defendants’ Motion to Dismiss, dismissing all counts against the City of Torrington, and
dismissing any claims against the Torrington Board of Education pursuant to 42 U.S.C.
§ 1983, Conn. Gen. Stat. §§ 10-4a, 10-15, 15-157, 10-184, 10-207, 10-220, 10-231e, and 10291, and the Connecticut Constitution. Plaintiffs filed a timely objection [Doc. # 36] to the
Ruling, arguing that the Magistrate Judge erred in holding that the City did not owe the
Plaintiff a duty and that their claims under 42 U.S.C. § 1983, the Connecticut Constitution,
and Connecticut statutory law should not have been dismissed. For the reasons that follow,
Plaintiffs’ objections are overruled, and as a result the Recommended Ruling is adopted.
I.

Factual and Procedural Background
The facts leading up to this lawsuit are presented in detail at pages 3–10 of Magistrate

Judge Margolis’s Ruling and are incorporated by reference here. Briefly, Plaintiffs’ suit is an
administrative appeal of a due process hearing officer’s decision dismissing Plaintiff’s request
for a declaration that Defendants improperly failed to identify M.A. as a child requiring
special education and related services under “Other Health Impairment” (“OHI”) for the
school years of 2006–07, 2007–08, 2008–09, and 2009–10. Plaintiffs’ Complaint set forth six

separate counts:
Count One:

The Defendants’ denial of an opportunity for the parents to
have IEP meetings and a determination as to the eligibility of
the child for special education was in violation of the
Individuals with Disabilities in Education Act (“IDEA”), 20
U.S.C. § 1400 et seq.
Count Two: The Defendants’ denial of an evaluation of the child as
eligible for special education was in violation of the IDEA.
Count Three: The Defendants’ denial of an opportunity for the parents to
have a due process hearing was in violation of the IDEA.
Count Four: The hearing officer erred in finding the child was not eligible
for special education under Other Health Impairment in
violation of the IDEA.
Count Five: The hearing officer erred in allowing the Defendants to
conduct an IEP meeting and evaluation of the child in 2010
during the due process hearing and basing her decision
regarding all claims on that IEP and evaluation, in violation
of the IDEA and under statutory and Constitutional due
process provisions.
Count Six:
The Defendants and the hearing officer violated the child’s
rights pursuant to the Connecticut Constitution.
The Recommended Ruling noted that the Defendant City of Torrington was not a
party to the administrative hearing that formed the basis of this lawsuit (Rec. Ruling at 12),
and that Plaintiff had failed to state a claim for respondeat superior liability under 42 U.S.C.
§ 1983, and dismissed the City from the case (id. at 13–14). As to the Connecticut
constitutional claims, the Ruling concluded that “plaintiffs have statutory remedies available
to them under the IDEA,” and that under controlling state law precedent, there was no
constitutional cause of action against either party. (Id. at 16.) Plaintiffs’ state law claims
relating to the conditions in the school system and the City’s failure to remediate the schools
were held not to be “issues upon which the due process hearing decision [was] based,” and
were dismissed as insufficiently linked to the Plaintiffs’ federal claims for an exercise of
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supplemental jurisdiction. (Id. at 18.) The Ruling also held that even if supplemental
jurisdiction were proper, the statutory claims failed under Rule 12(b)(6). (Id. at 19.)1
II.

Discussion2
Plaintiffs objects to the Recommended Ruling on three grounds: first, that the

Complaint sufficiently stated a claim against Defendant City of Torrington, both because the
City owed Plaintiffs a duty, and also because the City is liable under a theory of respondeat
superior; second, that they adequately stated a claim for relief under the Connecticut
Constitution; and third, that the dismissal of their statutory claims was improper. Each
objection will be addressed in turn.
A.

Claims Against Defendant City of Torrington

Plaintiffs contend that their Complaint contained sufficient factual matter to state
a plausible claim for relief that the City of Torrington owed a duty to the Plaintiffs. The
Complaint alleges violations of the IDEA on the part of the City of Torrington and the Board

1

The Ruling also addressed Plaintiffs’ Motion for Reconsideration [Doc. # 32], asking
that the Court enter a default judgment against Defendants because they failed to timely file
a motion to dismiss. (See Doc. # 27 at 1–2.) The docket reflects that Defendants filed a
motion to dismiss (see Motion to Dismiss [Doc. # 26]) on March 16, 2011 within the
scheduling deadlines (see Order [Doc. # 23] Granting Defendants’ Motion [Doc. # 21] for
Extension of Time and Denying Plaintiffs’ Motion [Doc. # 20] for Default), and thus,
Plaintiffs’ motion for judgment of default was appropriately denied. The Recommended
Ruling granted the Plaintiffs’ motion for reconsideration to consider their arguments, but
after reconsideration, left the order of denial undisturbed. As the docket clearly reflects that
Defendants properly filed a motion to dismiss within the Court’s scheduling deadlines,
Plaintiffs’ objection is overruled on this ground.
2

Pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 72.2(b), the
portions of the Magistrate Judge's decision objected to by Plaintiff are reviewed de novo, and
any part or the entirety of the Recommended Ruling may be adopted, rejected, or modified.

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of Education of Torrington, on the basis of a denial of IEP meetings, denial of IDEA
eligibility, denial of the opportunity for a due process hearing under the IDEA, erroneous
eligibility determinations on the part of the hearing officer, improper conduct on the part
of the hearing officer in conducting an IEP meeting and evaluation during the due process
hearing, and violations of the Connecticut constitution flowing from the actions of the
hearing officer and the Board. The Complaint makes no separate allegations of any City
action resulting in the denial of a Free Appropriate Public Education (“FAPE”) under the
IDEA.
The Recommended Ruling held that the Board of Education of Torrington “is the
party required under the IDEA to be involved in the hearing which is appealed in the present
action,” and that the “City of Torrington was not a party to the administrative hearing.”
(Ruling at 12.) In Plaintiff’s objection to the Recommended Ruling, Plaintiff argues that
under Sheff v. O’Neill, 238 Conn. 1, 25 (Conn. 1996), the “state has an affirmative
constitutional obligation to provide all public school children with a substantially equal
educational opportunity,” and that the Recommended Ruling overlooked controlling case
law.
While Sheff and its progeny may impress on the state a duty to provide certain
“essential components,” such as “minimally adequate physical facilities and classrooms
which provide enough light, space, heat, and air to permit children to learn,” Connecticut
Coalition for Justice in Educ. Funding, Inc. v. Rell, 295 Conn. 240, 309 (Conn. 2010), that
holding does not impact the specific allegations of this Complaint—that is, the allegedly
improper denial of a FAPE to Plaintiff— which are limited to the actions of the Board of
Education, and therefore, the City was not an appropriate party to the action. The City owed
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no duty under the IDEA, whatever may have been its other duties not claimed here.3 Thus,
Plaintiff’s first objection is overruled.
B.

Claims Under § 1983

Next, Plaintiffs contend that the Recommended Ruling erred in dismissing their
claims against the City under § 1983. They also state that they “filed no count regarding
relief pursuant to 42 U.S.C. § 1983” (Pl.’s Obj. at 8), which is confirmed by their Complaint,
which contains no reference to § 1983. In Defendants’ motion to dismiss [Doc. # 25–1],
Defendants argued that Plaintiffs had alleged violations of the Equal Protection and Due
Process clauses of the Fifth and Fourteenth Amendments of the United States Constitution,
but that Plaintiffs had failed to allege any unconstitutional policy or custom, as is required
under Monell v. Dep’t of Soc. Svcs, 436 U.S. 658 (1978) and its progeny. Indeed, the
Complaint contains no allegations of unconstitutional policies or customs, and further, the
Complaint makes no claims under § 1983.
Plaintiffs challenge dismissal of a claim that they say they did not make, and thus,
their Objection to the Recommended Ruling is moot.
C.

Connecticut Constitutional Claims

Plaintiffs object to the Recommended Ruling’s dismissal of the Connecticut
Constitutional claims under Counts Five and Six of their Complaint, arguing that “there is

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Specifically, the Complaint states “the Board failed to maintain the Torrington
Middle School in that it sustained . . . water damages from leaks in the roof, mold and
bacteria growth, high levels of moisture in the indoor air, and poor circulation of air”
(Compl. ¶ 33), and “also, the Torrington High School was not properly maintained such that
it sustained problems such as asbestos, leaks in the roofs and windows, minimal ventilation
rates, and broken air handles” (id. ¶ 34) (emphasis added). In enumerating the deficiencies
of the particular buildings, there are no attributions of conduct to the City.
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no binding precedent precluding a cause of action based on a state Constitutional violation
if a plaintiff has a meaningful alternative remedy to the Constitutional violation.” (Pl.’s Obj.
at 14.)
Counts Five and Six allege constitutional violations based on the hearing officer’s
“improper[ ] grant[ ] [of] the defendants’ request to conduct an IEP meeting and evaluation
of the child during the due process hearing, over the parents’ objections” (Compl. ¶ 133),
and that the hearing officer “failed to consider and/or appropriately apply Article first, § 20
of the Connecticut Constitution” (id. ¶ 139).4
In their motion to dismiss, Defendants argued that Plaintiffs cited no authority
permitting a private cause of action for money damages against a municipal entity,
particularly in light of the Connecticut Supreme Court’s general reluctance to recognize
private causes of action under the Connecticut constitution. (Def.’s Rep. [Doc. # 29] at 5.)
In Kelley Property Development v. Town of Lebanon, 226 Conn. 314, 334–35 (Conn. 1993),
the Connecticut Supreme Court addressed the petitioner’s argument that the court should
infer the existence of a cause of action for damages from the existence of the state
constitution’s due process provision “for the reasons of policy articulated in Bivens.” 226
Conn. at 334. Considering the Bivens line of cases before the United States Supreme Court
and the “several sister jurisdictions that have addressed the issue,” the Connecticut Supreme
Court noted that “the focus has been on the presence or absence of an existing alternative
remedy, either by way of statute or under the common law, to provide some measure of

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Article First § 20 of the Connecticut Constitution provides: “No person shall be
denied the equal protection of the law nor be subjected to segregation or discrimination in
the exercise or enjoyment of his civil or political rights because of religion, race, color,
ancestry or national origin.”
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relief for the injured party,” id. at 338, and concluded that “as a general matter, we should
not construe our state constitution to provide a basis for the recognition of a private
damages action for injuries for which the legislature has provided a reasonably adequate
statutory remedy.” Id. Thereafter, in Binette v. Sabo, 244 Conn. 23 (Conn. 1998), the
Connecticut Supreme Court recognized a private right of action for damages—under Article
First §§ 7 and 9 of the Connecticut Constitution,5 under factual circumstances similar to
those in Bivens, i.e., warrantless entry into petitioner’s home—because the legislature had
not “crafted a meaningful alternative remedy for the constitutional violation” at issue. Id. at
43.
The Recommended Ruling concluded that “in this case, unlike in Bivens and Binette,
plaintiffs have statutory remedies available to them under the IDEA.” (Ruling at 16.) Though
Plaintiffs claim that a state Bivens analysis was erroneously applied to their constitutional
claims, they proposed no alternative for these circumstances. Sheff and Connecticut Coalition
for Justice in Educ. Funding, Inc. are not directly applicable because neither case addressed
the issue of a private right of action for money damages for public school students and
parents.
Notwithstanding that the Connecticut Supreme Court has considered the “presence
or absence of an existing alternative remedy” as part of its analysis and that Plaintiffs have
statutory remedies available to them, the Court declines to exercise supplemental

5

Article First, § 7 of the Connecticut Constitution provides: “The people shall be
secure in their persons, houses, papers and possessions from unreasonable searches or
seizures; and no warrant to search any place, or to seize any person or things, shall issue
without describing them as nearly as may be, nor without probable cause supported by oath
or affirmation.” Article First, § 9 of the Connecticut Constitution provides: “No person shall
be arrested, detained or punished, except in cases clearly warranted by law.”
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jurisdiction over Plaintiffs’ constitutional claims, leaving any such recognition of new state
constitutional torts to Connecticut courts, based on the case–by–case approach of Binette
and on considerations of federal–state comity. See, e.g., Lopez v. Smiley, 375 F. Supp. 2d 19,
26 (D. Conn. 2005) (“Mr. Lopez’s state constitutional claims are clearly novel, they are
complex, and they are not well developed under Connecticut law. In light of the Connecticut
Supreme Court’s explicit statement in Binette that the Supreme Court did not intend to
create a cause of action for money damages for every alleged violation of the Connecticut
state constitution, . . . and the fact that federalism and comity concerns strongly suggest that
recognition of new state constitutional torts should be determined on a case–by–case basis
by Connecticut courts in the first instance, this Court will refrain from exercising
supplemental jurisdiction over all of Mr. Lopez's Connecticut constitutional claims (both
those seeking monetary damages and those seeking injunctive or declaratory relief).”)
(emphasis in original).
D.

Claims Under Connecticut General Statutes

Plaintiffs allege violations of Conn. Gen. Stat. §§ 10-4a, 10-15, 10-157, 10-184, 10207, 10-220, 10-220, 10-231e, and 10-291 (Compl. ¶¶ 6, 9, 136, 140–41), and contend that
the Recommended Ruling erroneously dismissed the state law statutory claims. In the
Recommended Ruling, Magistrate Judge Margolis held that because Plaintiffs never
responded to Defendants’ motion for dismissal of the statutory claims on the grounds that
these statutes do not create a private cause of action, the statutory claims were deemed
abandoned. (Ruling at 17.) The Recommended Ruling also addressed each statutory claim
on its merits, and concluded that “plaintiffs’ claims relating to the conditions in the school
system and the defendant City’s failure to remediate the schools are not issues upon which
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the due process hearing is based” (id. at 18), and that the Complaint failed to set forth
allegations that would state a claim for relief under the statutory provisions, given the
general rule that municipal entities are “generally immune from liability for tortious acts at
common law” (id. at 19 (citing Williams v. New Haven, 243 Conn. 762, 766–67 (Conn.
1998)).
As with their § 1983 claim, Plaintiffs’ objection states that they “did not seek a
separate cause of action pursuant to the Connecticut General Statutes cited.” Accordingly,
their objections are denied as moot.
III.

Conclusion
For the reasons discussed above, Defendants’ motion [Doc. # 26] to dismiss is

GRANTED, Plaintiffs’ motion [Doc. # 32] for reconsideration is GRANTED, to the extent
that Plaintiffs’ arguments were considered, and the Recommended Ruling [Doc. # 35] is
adopted with the modification that the Court declines to exercise supplemental jurisdiction
over Plaintiffs’ state constitutional claims.
Accordingly, Defendant City of Torrington will be dismissed, Counts Five and Six
are dismissed, and the case will proceed only as an administrative appeal challenging the
determinations of the hearing officer and the Defendant Board of Education under the
IDEA.
IT IS SO ORDERED.

/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 10th day of September, 2012.

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