Murphy et al v. Stamford et al
Filing
45
RULING granting 33 Motion to Dismiss. Counts One, Two, Four, and Six through Nine of the Murphys Complaint are dismissed. The Murphys are granted leave to file an amended complaint to cure the defect in Count Ten by November 15, 2013 or it will be dismissed. Amended complaint to be filed by 11/15/13 or case will be remanded to Stamford Superior Court on counts two, three, four, five, and nine. Signed by Judge Janet C. Hall on 10/25/2013. (Perez, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KAREN A. MURPHY and
KATHLEEN A. MURPHY,
Plaintiffs,
v.
CITY OF STAMFORD ET AL.,
Defendants.
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
3:13-CV-00942 (JCH)
OCTOBER 25, 2013
RULING RE: DEFENDANTS’ MOTION TO DISMISS (Doc. No. 33)
I.
INTRODUCTION
On August 12, 2013, defendants City of Stamford, City of Stamford Board of
Assessment Appeals, Frank Kirwin, Bill Jessa, Anne S. Peskin, Shawn C. Costello,
George Sessa, Raymond Leyden, Starr Merritt, and Joseph J. Capalbo moved to
dismiss eight of the ten counts in the Complaint filed by plaintiffs Karen and Kathleen
Murphy (“the Murphys”) against them. Defendants’ Motion to Dismiss the Plaintiffs’
Complaint (“Def.’s Mot. to Dismiss”) (Doc. No. 33) at 1. Defendants specifically move to
dismiss Count One, Count Two, Count Four, and Counts Six through Ten for failure to
state claims upon which relief may be granted and lack of subject matter jurisdiction. Id.
Defendants also seek to dismiss the Motion on the grounds that: the Board of
Assessment Appeals, members of the Board, and Stamford officials are entitled to
absolute and qualified immunity; the Complaint fails to allege that Frank Kirwn was
personally involved in the alleged deprivation of plaintiffs’ constitutional rights; and the
plaintiffs’ state law claims fails as a matter of law because they have adequate remedies
at state law. Id. at 2. Defendants request that, should the court dismiss these counts, it
1
remand Count Three and Count Five—appeals pursuant to Connecticut General
Statutes, sections 12-117a and 12-119—to Stamford Superior Court. Id. at 2 n.1.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Factual History
The Murphys jointly own a property—consisting of the land and all buildings and
improvements thereon—located at 68 Saddle Rock Road in Stamford, Connecticut.
Notice of Removal (“Not. of Rem.”) (Doc. 1) at Exh. 3, ¶ 1. According to the Murphys,
the Stamford Tax Assessor, defendant Frank Kirwin (“Kirwin”), improperly assessed the
value of their property when the property was revalued on October 1, 2012. Id. at ¶ 7.
The Murphys assert that Kirwin’s assessment contained multiple errors, resulting in the
overvaluation of the property. Id.
On March 20, 2013, the Murphys appealed to the Stamford Board of Assessment
Appeals (“Board”), claiming that they had been aggrieved by Kirwin’s assessments and
offering to testify to any questions concerning the property. Id. at ¶ 8. On April 4, 2013,
the Board held an appeal hearing, which Karen Murphy attended; the hearing was
conducted by Board member Shawn Costello (“Costello”). Id. at ¶ 12. The Murphys
allege that, on at least two or three occasions during the hearing, Costello left the room
and conducted ex parte communications with Deputy Tax Assessor Bashir Jessa
(“Jessa”) and/or others. Id. at ¶ 16. During the hearing, Costello requested certain
additional information from the Murphys, which they provided on April 9, 2013. Id. at ¶
17.
On April 9, 2013, the Board held a deliberation meeting, which Karen Murphy
attended. Id. at ¶ 20. Four Board members, including Costello, and Jessa were
present at the meeting. Id. at ¶ 21. The Murphys maintain that Jessa attended the
2
meeting to represent Kirwin and assist the Board. Id. at ¶ 22. During the meeting,
Costello left the room with Jessa to discuss the additional information the Murphys
submitted on April 9; upon returning with the additional evidence in hand, Costello
looked at Karen Murphy and “said something to the effect [of] ‘you did me in this time.’”
Id. at ¶ 27. The Murphys assert that Costello and the Board had no opportunity to
review the new evidence submitted on April 9, or question Karen Murphy or Jessa. Id.
at ¶ 28. They also claim that Costello ignored the Murphys’ evidence and failed to
present most of the Murphys’ challenges to Kirwin’s methodology and judgments. Id. at
¶ 29.
Costello made two recommendations to the Board at the meeting. Id. at ¶ 30.
The Murphys allege that both recommendations were based on Costello’s ex parte
discussion with Jessa prior to the meeting and that Costello provided no rational basis
for the recommendations. Id. The Board approved the recommendations, the Murphys
note, without discussing them or reviewing the Murphys’ submitted evidence. Id. The
Murphys apparently also submitted Field Cards for the Board’s consideration, Cards
that allegedly “showed conclusively, among other things, that [the Murphys’] land, home
and pool [were] over[-]assessed.” Id. at 32. Costello, the Murphys contend, did not
show or discuss these Cards with the Board. Id. The Murphys observe that, following
the deliberation meeting on their property, Costello showed and discussed Field Cards
for other cases before the Board. Id. at ¶ 32.
Following the April 9 deliberation meeting, Karen Murphy found out that
Costello’s father-in-law was Dan McCabe (“McCabe”), an attorney of whom the
Murphys had been “highly critical.” Id. at ¶ 35, 39. The Murphys have been critical of
3
the Mayor of Stamford and two other attorneys, who the Murphys claim are “close
political friends” of McCabe, as well. Id. at ¶ 39. The Murphys assert that Costello did
not disclose his relationship with McCabe, despite having the opportunity to do so
during a conversation prior to the April 4 hearing. Id. at ¶ 37. Additionally, the Murphys
claim that “the Administration,” presumably that of the Mayor of Stamford, “retaliates
against employees, elected and appointed officials and others who challenge its
authority, decisions, or judgments.” Id. at ¶ 40.
On April 15, the Murphys filed a request for a new hearing with the Chair of the
Board, Anne Peskin (“Peskin”), based on Costello’s alleged conflict and constitutional
violations that the Murphys believe the Board committed during its deliberation meeting
on the Murphys’ appeal. Id. at ¶¶ 41-42. The Murphys’ request was denied in a letter
dated May 6, 2013, and signed by Stamford’s Corporation Counsel, Joseph Capalbo
(“Capalbo”), which stated that the Board did not conduct additional hearings after
rendering its decision, and that the Murphys’ exclusive remedy was an appeal of the
Board’s decision to the Superior Court of Connecticut. Id. at ¶ 46. The Murphys insist
that their request for a new hearing was filed before the Board met on April 15 to decide
Murphys’ appeal. Id. at ¶ 45. The Murphys’ responded to Capalbo’s letter, challenging
its claim that their request for a new hearing was filed after the Board issued its
decision. Id. at ¶ 50. They did not receive a response. Id.
The Board issued a change to the October 2012 Assessment in a letter (“Notice
of Action”) dated April 22, 2013, revising the value of the property from $2,509,880 to
$2,460,180. Id. at ¶ 43. The Murphys contend that the revised value still exceeds the
true value of the property. Id. at ¶ 52. In addition, the Murphys claim that the Notice of
4
Action provides no factual or legal basis, explanation or justification for the revised
assessment, fails to address the Murphys’ reasons for appealing the original
assessment, and is “replete with errors.” Id. at ¶ 53-54.
Count One of the Murphys’ Complaint seeks declaratory judgment of whether
Connecticut General Statute, section 12-111, which provides for appeals of assessment
determinations to the Board, allows the Board to delegate its authority to review appeals
to only one member of the Board or an outsider. Id. at ¶¶ 67-71. If the court finds that
section 12-111 does allow for such delegation, Count One seeks judgment on whether
the failure to train the Board or the reviewing outsider in assessment matters or to
disclose the procedures for how assessment appeals are assigned, amounts to
deliberate indifference to the state and federal due process and equal protection rights
of property owners. Id. at ¶ 72.
Count Two asserts that, through their conduct of the assessment appeal hearing,
the Board, Kirwin, Jessa, and Capalbo wantonly, recklessly, and maliciously inflicted
damages on the Murphys. Id. at ¶¶ 76-86.
Count Three appeals, pursuant to Connecticut General Statute, section 12-117a,
the Board’s reassessment of the Murphys’ property as well as, it appears, Kirwin’s
original assessment. Id. at ¶ 87-89.
Count Four appears to request a correction of errors found in the 2009, 2010,
2011, 2012 assessments and the October 2012 revised assessment of the Murphys’
property, pursuant to Connecticut General Statute, section 12-60. Id. at ¶¶ 90-94.
5
Count Five applies for relief, pursuant to Connecticut General Statute, section
12-119, from the tax on the Murphys’ property that is based on the October 2012
revised assessment. Id. at ¶¶ 97-96.
Counts Six through Eight allege that the appeal hearing and subsequent
issuance of the Notice of Action on the Murphys’ property deprived the Murphys of
equal protection of the laws as well as of substantive and procedural due process,
violating the Fourteenth Amendment of the United States Constitution; on this basis, the
Murphys seek relief pursuant to title 42, United States Code, section 1983. Id. at ¶¶ 97117.
Counts Nine and Ten allege that the defendants’ allegedly unlawful acts
constituted a civil conspiracy, and they request common law relief and relief pursuant to
title 42, United States Code, section 1985(3). Id. at ¶¶ 118-22.
As relief, the Murphys seek a declaratory judgment, a reduction in their tax
liability for their property and the assessment on which the liability is based, a reduction
in the valuation of the property, correction of errors, refund of their overpayment of
taxes, interest, attorneys’ fees, and compensatory and punitive damages. Id. at 26.
B.
Procedural History
The Murphys filed their Complaint against Stamford in the Superior Court of the
State of Connecticut, Judicial District of Stamford/Norwalk at Stamford. Not. of Rem. at
Exh. 3. Stamford then removed the case to federal court.1 Id. at ¶ 6. The Murphys filed
a Motion to Remand that was denied by this court on September 27, 2013. Plaintiffs’
1
Why the defendants chose to remove this case, which the Murphys appropriately
brought in state court, only to immediately move to dismiss it from federal court on subjectmatter jurisdiction grounds, is an interesting question.
6
Objections to Notice of Removal (“Pl.’s Obj. to Not. of Rem.”) (Doc. No. 28); Ruling Re:
Plaintiff’s Motion to Remand (“Ruling Re: Pl.’s Mot. to Rem.”) (Doc. No. 44).
III.
STANDARD OF REVIEW
On a motion to dismiss, all factual allegations in the complaint must be accepted
as true, and the court must draw all reasonable inferences in the plaintiff's favor. Harris
v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). “[A] motion to dismiss does not involve
consideration of whether a plaintiff will ultimately prevail on the merits, but instead solely
whether the claimant is entitled to offer evidence in support of his claims.” Peter F.
Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 65 (2d Cir.2010) (citation
and quotation marks omitted).
Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a defendant to
challenge a plaintiff's failure to improperly invoke the federal court's subject matter
jurisdiction. “If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). The district court may
resolve the disputes’ jurisdictional fact issues by reference to evidence outside the
pleadings. Exchange National Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126,
1131 (2d Cir. 1976). Where jurisdiction is lacking, the district court must dismiss the
complaint without regard to the merits of the lawsuit. Nowak v. Ironworkers Local 6
Pension Fund, 81 F. 3d 1182, 1138 (2d Cir. 1996).
Pursuant to the Federal Rules, a defendant may also move to dismiss a
complaint if it “fails to state a claim upon which relief may be granted.” Fed. R. Civ. P.
12(b)(6). In its review of a motion to dismiss, 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 Trans.
7
Local 504, 992 F.2d 12, 14 (2d Cir. 1993). To survive a motion pursuant to Rule
12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949 (2009)
(quoting Twombly, 550 U.S. at 556).
However, pro se complaints “must be construed liberally and interpreted to raise
the strongest arguments that they suggest.” Triestman v. Federal Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (emphasis in original, quotation omitted). “[A] pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quotation and citation omitted). The Second Circuit has observed that “even after
Twombly, dismissal of a pro se claim as insufficiently pleaded is appropriate only in the
most unsustainable of cases.” Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008).
Where a pro se complaint must be dismissed due to a pleading deficiency, the court
should generally provide leave to amend. Watts v. Services for the Underserved, 309
F. App'x 533, 535 (2d Cir. 2009) (“[W]here the ground for dismissal is quite narrow and
the plaintiff appears pro se, it was error to enter judgment . . . rather than permitting
plaintiff at least one chance to cure a pleading defect.”); Gomez v. USAA Fed. Sav.
Bank, 171 F.3d 794, 795 (2d Cir.1999) (“Certainly the court should not dismiss without
8
granting leave to amend at least once when a liberal reading of the [pro se ] complaint
gives any indication that a valid claim might be stated.”).
IV.
DISCUSSION
A.
Motion to Dismiss
The defendants have moved to dismiss Counts One, Two, Four, and Six through
Ten of the Murphys’ Complaint on a number of grounds. As a threshold matter,
defendants argue that the Tax Injunction Act strips this court of the jurisdiction to
consider Murphys’ section 1983 claims. Def.’s Mot. to Dismiss Pl.’s Comp. at 2. Thus,
the court must consider whether the TIA applies here before it reaches the defendants’
other arguments for dismissal.
1.
Claims
a.
Section 1983 Claims
The Tax Injunction Act (“TIA”), and the principle of comity that underlies it,
deprive this court of jurisdiction to consider the Murphys’ section 1983 claims.2 The
2
The Murphys assert two novel, and erroneous, propositions against the applicability of
the TIA here: first, they propose that this court’s ruling on their Motion to Remand is dispositive
of whether the TIA applies; second, they argue that the defendants’ removal of their Complaint
to federal court was a waiver of comity. The former proposition is incorrect because the court’s
Ruling on their Motion to Remand purposefully did not reach whether the TIA applied here
because the defendants had not briefed the matter. See Ruling Re: Pl.’s Mot. to Rem. at 4-5.
The latter is unsupported by the one case the Murphys cite—Levin v. Commerce Energy, Inc.,
130 S.Ct. 2323, 2336 (2010)—and contradicted by others. See 130 S.Ct. at 2336 (quoting Ohio
Bureau of Employment Servs. v. Hodory, 431 U.S. 471, 480 (1977), where the court noted that,
because the state had requested that the federal court resolve a constitutional issue, “principles
of comity [did] not demand that the federal court force the case back into the State’s own
system”); S/N1 Reo Ltd. Liability Co. v. City of New London ex rel. Ballestrini, 127 F.Supp.2d
287, 295 (D. Conn 2000) (noting that the TIA jurisdictional bar could not be waived because
subject-matter jurisdiction is non-waivable); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 583 (1999) (observing that subject-matter jurisdiction “is nonwaivable and delimits federalcourt power”).
9
TIA’s limitation on constitutional challenges to state tax systems is clearly established.
The TIA, Title 28, United States Code, section 1341, states:
The district courts shall not enjoin, suspend or restrain the assessment, levy or
collection of any tax under State law where a plain, speedy and efficient remedy
may be had in the courts of such State.
The TIA “is rooted in principles of federalism and in recognition of a state's need to
administer its own fiscal operations, and was written primarily to limit federal-court
interference with local tax matters.” Bernard v. Village of Spring Valley, 30 F.3d 294,
297 (2d Cir.1994). The Supreme Court has established that the TIA prohibits district
courts from issuing declaratory judgments holding state tax laws unconstitutional.
California v. Grace Brethren Church, 457 U.S. 393, 408 (1982). The Court has further
held that “taxpayers are barred by the principle of comity from asserting § 1983 actions
against the validity of state tax systems in federal courts.” Fair Assessment in re Al
Estate Ass'n v. McNary, 454 U.S. 100, 116 (1981); see also Nat'l Private Truck Council
v. Okla. Tax Comm'n, 515 U.S. 582, 587 (1995) (“Congress never authorized federal
courts to entertain damages actions under § 1983 against state taxes when state law
furnishes an adequate legal remedy.”). Thus, if the Murphys’ constitutional claims are
properly considered challenges to the assessment, levy, or collection of a state tax and
if a plain, speedy, and efficient remedy is available to the Murphys under state law, this
court lacks jurisdiction to consider their section 1983 claims and request for declaratory
relief. See Marshall v. Town of Middlefield, No. 3:07cv1079, 2008 WL 5157753 at *2
(D. Conn. Dec. 5, 2008); see also Bernard, 30 F.3d 294 at 297 (“[F]ederal courts are
precluded from exercising jurisdiction over challenges to state tax assessments,
regardless of the type of relief sought.”).
10
The Murphys argue that, because they are asking the court to determine whether
the Boards’ assessment appeal hearings are unconstitutional, they are not seeking to
“enjoin, suspend, or restrain” the collection of taxes. Plaintiffs’ Memorandum of Law in
Opposition to Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6) (“Pl.’s Mem. in Opp.”) (Doc. No. 41) at 7. This argument is unavailing,
however, for “basing a complaint upon alleged violations of civil rights . . . 42 U.S.C. §
1983 or the Federal Constitution will not avoid the prohibition contained in Section
1341.” Hickmann v. Wujick, 488 F.2d 875, 876 (1973). In finding that the TIA
proscribes declaratory relief, the Supreme Court has observed that a federal court’s
determination of unconstitutionality could disrupt the collection of taxes just as fully as
an injunction would. See California, 457 U.S. at 408; Fair Assessment, 454 U.S. at 11516. Thus, the constitutional nature of the Murphys’ claims does not insulate them from
the reach of the TIA.
The Murphys’ characterization of their section 1983 claims as a challenge to the
Board’s appeals procedures is also not enough to immunize them against the TIA. The
Third Circuit in Gass v. County of Allegheny, PA, 371 F.3d 134 (3d Cir. 2004), found a
similar argument—i.e., that a challenge to the post-collection appeals process did not
implicate the state’s ability to assess, levy, or collection taxes—unpersuasive.3 The
3
In the Murphys’ objection to the defendants’ Notice of Removal, where they discuss the
applicability of the TIA to their case in some detail, they cite William Jefferson & Co., Inc. v. Bd.
of Assessments & Appeals No. 3 ex rel. Orange County, 695 F.3d 960 (9th Cir. 2012) as an
instance of a federal court considering a challenge to a tax assessment appeal board’s hearing
procedures. Pl.’s Obj. to Not. of Rem. at 6. Their reliance on William Jefferson, however, is
misguided, as neither the Ninth Circuit decision nor the lower court decision it reviews
addresses the TIA at all. 695 F. 3d 960; William Jefferson & Co., Inc. v. Bd. of Assessments &
Appeals No. 3 ex rel. Orange County, No. SACV09-849 DOC, 2011 WL 245592 (C.D. Cal. Jan.
24, 2011).
11
Gass court noted that “[t]he appeal process is directed to the Board’s ultimate goal and
responsibility of determining the proper amount of tax to assess—a power of
‘assessment’ that explicitly falls within the ambit” of the TIA. 371 F.3d at 136-37.
Further, the “prior payment of the tax” did not “change the fact that [the appellants
sought] to enjoin Pennsylvania’s finalization of assessments or re-assessments of
taxes.” Id. at 137.
Whether the Murphys’ section 1983 claims trigger the TIA turns on the effect their
sought relief would have on Stamford’s assessment of taxes against them. Congress’
intent in enacting the TIA was “the prevention of a particular evil; namely, using federal
courts as a vehicle to bring suits challenging the validity or amount of a particular tax
assessed against an individual person or entity.” Luessenhop v. Clinton County, New
York, 466 F.3d 259, 266 (2d Cir. 2006). The TIA is implicated, then, when taxpayers
seek to utilize federal courts “as a conduit to empty state coffers.” Id. Were the
Murphys to prevail on their constitutional challenges, they would accomplish just that.
In addition to a declaration that the Board’s appeals procedures are unconstitutional, the
Murphys request a reduction in the assessment of their property and their resultant tax
liability for the property, a refund of their alleged overpayment of taxes, and
compensatory and punitive damages. Not. of Rem. at Exh. 3, at 26. Such relief, if
granted, would certainly diminish and disrupt state tax collection. Further, as the relief
sought reveals, the crux of the Murphys’ claims against defendants is that the taxes
levied on their property are invalid. When the “belief that the taxes . . . owed were
fraudulent” underlies a party’s constitutional claims, the TIA applies. Marshall, 2011 WL
2982315, at *3.
12
It is worth briefly noting how dissimilar the Murphys’ claims are from
constitutional challenges of tax systems to which courts have held the TIA does not
apply. In Luessenhop, the Second Circuit noted that the TIA was not applicable where
taxpayers argued that the foreclosure notices provided by the taxing authority were
constitutionally inadequate because “the taxpayers [were] not attempting to avoid
paying state taxes. . . . [or] disput[ing] the assessments or amounts owed.” 466 F.3d at
261, 268. In Hibbs v. Winn, 542 U.S. 88 (2004), the Court upheld a challenge to a state
tax credit policy because it was brought by third-parties who were seeking to enjoin tax
benefits, not taxpayers contesting their tax liability. 542 U.S. at 94, 107-08. The
Murphys’ case has been brought by taxpayers contesting their tax liability by disputing
the validity of the assessments owed—that is, it is precisely the type of case the Second
Circuit and Supreme Court have distinguished from cases found to be beyond the
scope of the TIA.
For the TIA to fully strip this court of jurisdiction to consider the Murphys’
constitutional claims, however, the Murphys must have a plain, speedy, and efficient
remedy in state court. 28 U.S.C. § 1341. The Murphys argue that the remedy available
to them under Connecticut General Statutes, sections 12-117a and 12-119—which
allow a person claiming to be aggrieved by an action of the Board or by wrongful
assessment of his or her property to apply to the Superior Court for relief—is not plain,
speedy, or efficient. Pl.’s Obj. to Not. of Rem. at 7-9. The Murphys contend that the
available remedy is deficient because it is limited to a refund against the City and does
not allow redress for the alleged constitutional violations of the Board and other
defendants. Id. at 9-10. The Murphys also suggest that the remedy is not efficient,
13
citing the defendants’ removal of the case to this court, their Motion to Dismiss, and
other actions in this litigation as the source of that inefficiency, and that the remedy is
not plain because it is unclear whether state law allows the state court to hear and
decide the Murphys’ federal claims. Id. at 10-11.
To satisfy the “plain, speedy, and efficient” requirement, the remedy need not be
perfect but must satisfy “certain minimal procedural criteria” by providing a “full hearing
and judicial determination at which [the taxpayer] may raise any and all constitutional
objections to the tax.” Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503, 512, 514 (1981)
(citation and quotation marks omitted). The Second Circuit has previously held that the
remedies provided by sections 12-117a and 12-119, as well as Connecticut General
Statutes, section 12-129, which allow a taxpayer to “pay a tax under protest and raise
constitutional challenges in an action to obtain a refund,” are “plain, speedy, and
efficient” for the purposes of the TIA. See Marshall v. Town of Middlefield, 360 Fed.
Appx. 227, 228-29 (2d Cir. 2010); Marshall, 3:10-cv-1327 CFD, 2011 WL 2982315 at
*4.4 Thus, Count One and Counts Six through Eight of the Murphys’ Complaint—claims
for declaratory judgment and relief under section 1983—fall within the purview of the
TIA and are dismissed for lack of subject-matter jurisdiction.5
4
The Murphys appear to doubt the sufficiency of sections 12-117a and 12-119 as
remedies by noting that they “can in no way be the ‘main event’ in [the Murphys’] attempt to
have their constitutional violations and the abuse of lawful authority redressed.” Pl.’s Mem. in
Opp. at 9. However, they cite nothing in support of this contention. This contention is
furthermore inconsistent with the Supreme Court’s holding in National Private Truck Council that
state courts “must refrain from granting federal relief under section 1983 when there is an
adequate legal remedy” at law. 515 U.S. at 592. As the Murphys have an opportunity to raise
their constitutional challenges under Connecticut General Statutes, section 12-129, they have
an “adequate legal remedy” at law.
5
Because the Murphys’ claims for declaratory judgment and relief under section 1983
are barred from judicial consideration by the TIA, the court need not address defendants’
14
b.
Section 1985(3) Claim
Defendants also assert that Count Ten must be dismissed because the
Complaint fails to state a claim under section 1985(3). Def.’s Mot. to Dismiss Pl.’s
Comp. at 2. To state a cause of action under title 42, United States Code, section
1985(3), a plaintiff must allege:
(1) a conspiracy (2) for the purpose of depriving a person or class of
persons of the equal protection of the laws, or equal privileges and
immunities under the laws; (3) an overt act in furtherance of the
conspiracy; and (4) an injury to the plaintiff’s person or property, or a
deprivation of a right or privilege of a citizen of the United States.
Thomas v. Roach, 165 F. 3d 137, 146 (1999). The plaintiff must also allege that the
conspiracy was motivated by a “racial, or perhaps otherwise class-based invidiously
discriminatory animus.” Id. at 146 (citation and quotations omitted). A conspiracy “need
not be shown by proof of an explicit agreement but can be established by showing that
the parties have a tacit understanding to carry out the prohibited conduct.” Id. (citation
and quotations omitted). Further, the plaintiff must allege “with at least some degree of
particularity, overt acts which defendants engaged in which were reasonably related to
the promotion of the claimed conspiracy.” Id. at 147. A “complaint containing only
conclusory, vague, or general allegations of conspiracy to deprive a person of
constitutional rights cannot withstand a motion to dismiss.” Gyadu v. Hartford Ins. Co,
197 F.3d 590, 591 (1999) (citation and quotations omitted).
Count Ten alleges that the Board’s conduct at the Murphys’ appeal hearing was
the result of a conspiracy to deprive them of equal protection of the laws. Not. of Rem,
at Exh. 3, ¶ 122; Pl.’s Mem. in Opp. at 27. The Murphys appear to argue that the
arguments that these claims be dismissed because the defendants are entitled to absolute and
qualified immunity and because Kirwin is not alleged to have participated in the constitutional
violations. Def.’s Mot. to Dismiss at 2.
15
conspiracy was motivated by Costello’s political animus towards the Murphys due to
their public criticism of his father-in-law. Pl.’s Mem. in Opp. at 26-28.
While the Murphys correctly observe that section 1985(3) prohibits political
discrimination, their Complaint fails to allege with sufficient particularity the existence of
such a politically motivated conspiracy among the Board members. Id. at 27; see
Keating v. Carey, 706 F.2d 377, 387-88 (recognizing that section 1985(3) covers
discrimination on the basis of political affiliation and belief). Though the Complaint
alleges that Costello, who was one of the members of the Board that reviewed the
Murphys’ appeal, was the son-in-law of someone the Murphys had publicly criticized, it
does not allege that the rest of the Board had similar ties. Nor does the Complaint
allege that Costello acted out of political animus in deciding the Murphys’ appeal. The
Complaint’s only allegation regarding Costello’s relation to McCabe is that Costello
“intentionally and wrongfully” failed to disclose it. Not. of Rem, at Exh. 3, ¶ 38. To
allege a section 1985(3) conspiracy, “[a] complaint in a case like this must set forth facts
showing some intentional and purposeful deprivation of constitutional rights.” Powell v.
Workmen’s Compensation Bd. of State of N.Y., 327 F. 2d 131, 137 (1964). The
absence of any allegation in the Complaint of even a “tacit understanding” between
Costello and the rest of the Board to deprive the Murphys of their rights for political
purposes is fatal to the Murphys’ section 1985(3) claim. Count Ten is thus dismissed
for failure to state a claim, with leave to replead, if the Murphys have a factual basis to
set forth more detailed allegations supporting a claim under section 1985(3). See
Marshall v. Webster Bank, N.A., 3:10-cv-908 (JCH), 2011 WL 219693 at * 10 (D. Conn.
16
Jan. 21, 2011) (dismissing a pro se plaintiff’s civil conspiracy claim, with leave to
replead); Watts, 309 F. App'x at 535.
c.
State law claims
As this court has dismissed the federal claims raised by the Murphys’ Complaint,
the court declines to retain supplemental jurisdiction over the Murphys’ state law claims
unless the Murphys can plead a cause of action under section 1985(3), see supra at 1617. See 28 U.S.C. § 1367(c)(3); United Mine Workers of America v. Gibbs, 383 U.S.
715, 726 (1966) (“Needless decisions of state law should be avoided . . . . if the federal
claims are dismissed before trial . . . the state claims should be dismissed as well.). If
the Murphys are unable to plead a federal cause of action, Counts Two, Four, and Nine
will be remanded to the Stamford Superior Court along with Counts Three and Five.
V.
CONCLUSION
For the aforementioned reasons, the defendants’ Motion to Dismiss is
GRANTED. Counts One, Two, Four, and Six through Nine of the Murphys’ Complaint
are dismissed. The Murphys are granted leave to file an amended complaint to cure the
defect in Count Ten by November 15, 2013. If the Murphys are able to plead facts
sufficient to allege a section 1985(3) claim in their amended complaint, defendants may
file another Motion to Dismiss on Count Ten and reclaim their Motion to Dismiss on
Counts Two, Four, and Nine; if the Murphys are unable to do so, Count Ten will be
dismissed.
The Clerk of Court is directed to hold the case on the docket. If no amended
complaint is filed on or before November 15, 2013, the Clerk is directed to remand the
17
case (Counts Two, Three, Four, Five, and Nine) to the Stamford Superior Court for
adjudication.
SO ORDERED.
Dated at New Haven, Connecticut this 25th day of October, 2013.
___/s/ Janet C. Hall ______
Janet C. Hall
United States District Judge
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