Pascarelli v. Schwartz et al
ORDER: For the reasons set forth herein, the Motion to Dismiss (Doc. No. 55 ) is hereby GRANTED. The Clerk shall close this case. It is so ordered. Signed by Judge Alvin W. Thompson on 2/17/17. (Rafferty, M.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DIANE PASCARELLI, EXECUTRIX OF
THE ESTATE OF ROBERT F. NAGLE,
LINDA SCHWARTZ, MICHAEL CLARK,
ELIZABETH SYSKA, LINDA C.
TURGEON and HARVEY GEMME,
Civil No. 3:14-CV-1123(AWT)
RULING ON MOTION TO DISMISS
Plaintiff Diane Pascarelli, as Executrix of the estate of
Robert F. Nagle, brings claims pursuant to 28 U.S.C. § 1983
against defendants Linda Schwartz, Michael Clark, Elizabeth
Syska, Linda C. Turgeon and Harvey Gemme.
The Complaint alleges
violations of the decedent’s substantive and procedural due
process rights in violation of the Fourteenth Amendment of the
United States Constitution, and in addition, includes a claim
under Conn. Gen. Stat. § 52-564 seeking treble damages for
The plaintiff’s substantive due process claim was
The defendants move to dismiss the
remaining claims for lack of subject matter jurisdiction.
the reasons set forth below, the defendants’ motion to dismiss
is being granted as to the procedural due process claim and the
court declines to exercise supplemental jurisdiction over the
claim pursuant to Conn. Gen. Stat. § 52-564.
“The complaint, which [the court] must accept as true for
purposes of testing its sufficiency, alleges the following
Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir.
The plaintiff is a resident of New Britain, Connecticut
who was appointed as the Executrix of the Estate of her father,
Robert F. Nagle; Nagle died on September 12, 2012.
(Doc. No. 1) at ¶ 3.
When “Robert Nagle entered the Veterans’
Home at Rocky Hill, Connecticut, on March 13, 2012[,] . . . . he
had substantial savings, in excess of fifty thousand dollars
cash, in the bank and owned a mobile home.”
Compl. at ¶ 7.
defendants were at all relevant times employed by the
Connecticut Department of Veterans’ Affairs -- defendant
Schwartz as the Commissioner; defendant Clark as the Fiscal
Administrative Manager; defendant Turgeon as the Fiscal
Administrative Officer; and defendant Gemme as a social worker.
The plaintiff alleges that “the defendants induced Mr.
Nagle to execute a Statutory Short Form Durable Power of
Attorney granting the defendant Schwartz his power of attorney
to act for him with respect to all real estate transactions,
chattel and goods transactions, bond, share and commodity
transactions, insurance transactions, estate transactions,
claims and litigations and benefits from military service.”
Compl. at ¶ 11.
The plaintiff further alleges that “the
defendants opened two bank accounts” in Nagle’s name and
“authorized the defendant Turgeon and the defendant Syska the
sole power to issue checks on the accounts,” Compl. at ¶ 12, and
that the defendants negotiated the sale of Nagle’s mobile home
and deposited two checks as proceeds from the sale into those
bank accounts, which the defendants alone controlled.
plaintiff further alleges that the defendants withdrew all the
funds from Nagle’s preexisting accounts, thereby closing them,
reduced the balance in the new accounts to zero, and made no
payments on Nagle’s Anthem Blue Cross/Blue Shield insurance
policy, causing it to lapse.
The plaintiff alleges that by
taking these actions “the defendants intentionally, wilfully and
maliciously deprived the plaintiff’s decedent of all his money
and other property without procedural . . . due process of law.”
Compl. at ¶ 18.
“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. Store Co., 34 F. Supp. 2d 130, 131 (D. Conn.
1999) (quoting Ryder Energy Distrib. v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)).
is properly dismissed for lack of subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1) when the court lacks the
statutory or constitutional power to adjudicate the claim.
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187
(2d Cir. 1996).
On a Rule 12(b)(1) motion to dismiss, the party
asserting subject matter jurisdiction “bears the burden of
proving subject matter jurisdiction by a preponderance of the
Aurecchione v. Schoolman Transp. Sys., Inc., 426
F.3d 635, 638 (2d Cir. 2005).
When deciding a motion to dismiss
under Rule 12(b)(1), the court must accept as true all material
factual allegations in the complaint.
U.S. 232, 236 (1974).
Scheuer v. Rhodes, 416
However, the court is “not to draw
inferences from the complaint favorable to the plaintiffs.”
J.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
Rather, “jurisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings inferences
favorable to the party asserting it.”
Shipping Fin. Servs.
Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Norton
v. Larney, 266 U.S. 511, 515 (1925)).
“Federal courts lack subject-matter jurisdiction when an
asserted federal claim is ‘“so insubstantial, implausible,
foreclosed by prior decisions of this court, or otherwise
completely devoid of merit as not to involve a federal
Arthur Andersen LLP v. Carlisle, 556 U.S. 624,
628 n.3 (2009) (quoting Steel Co. v. Citizens for Better Env’t,
523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of N.Y. v.
County of Oneida, 414 U.S. 661, 666 (1974))).
constitutionally insubstantial only if the prior decisions
inescapably render the claims frivolous; previous decisions that
merely render claims of doubtful or questionable merit do not
render them insubstantial” for jurisdictional purposes.
v. Lavine, 415 U.S. 528, 537-38 (1974).
The defendants argue that the court lacks subject matter
jurisdiction over the plaintiff’s § 1983 procedural due process
claim because it is “foreclosed by decisions of the United
States Supreme Court as to be so patently without merit as not
to involve a federal controversy.”
(Doc. No. 55) at 1.
Defs.’ Motion to Dismiss
It is well established, pursuant to Parratt
v. Taylor, 451 U.S. 527 (1981) and Hudson v. Palmer, 468 U.S.
517 (1984), that “an unauthorized intentional deprivation of
property by a state employee does not constitute a violation of
the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation remedy for
the loss is available.”
Hudson, 468 U.S. at 533.
law provides a meaningful postdeprivation remedy in the form of
a common law cause of action for conversion and Conn. Gen. Stat.
§ 52-564 (treble damages for theft).
As discussed in Parratt, “three prerequisites of a valid
due process claim” include: (1) “the [defendants] acted under
color of state law”; (2) the interest at issue “falls within the
definition of property; and (3) the alleged loss . . . amounted
to a deprivation.”
Parratt, 451 U.S. at 536-37.
Here, as in
Parratt, the claim “[u]nquestionably” satisfies these three
The defendants “were state employees in
positions of considerable authority,” and thus were acting under
color of state law; the funds allegedly improperly taken or
spent are covered by the definition of property; and the alleged
loss amounted to a deprivation.
however, these three elements do not establish a violation of
the Fourteenth Amendment. . . . The Fourteenth Amendment
protects only against deprivations ‘without due process of
Id. at 537 (quoting Baker v. McCollan, 443 U.S. 137, 145
A deprivation is not without due process of law where the
state provides a postdeprivation remedy that satisfies the
requirements of procedural due process.
As stated by the
The fundamental requirement of due process is the
opportunity to be heard and it is an ‘opportunity
which must be granted at a meaningful time and in a
However, as many . . . cases
recognize, we have rejected the proposition that ‘at a
meaningful time and in a meaningful manner’ always
requires the State to provide a hearing prior to the
initial deprivation of property.
This rejection is
based in part on the impracticability in some cases of
providing any preseizure hearing under a stateauthorized procedure, and the assumption that at some
time a full and meaningful hearing will be available.
Parratt, 451 U.S. at 540-41.
The Court went on to explain that the “justifications which
we have found sufficient to uphold takings of property without
any predeprivation process are applicable to a situation such as
the present one involving a tortious loss of . . . property as a
result of a random and unauthorized act by a state employee.”
Because the act is not authorized by state policy or
procedure, “the State cannot predict precisely when the loss
will occur,” which makes providing a predeprivation hearing
Thus, Parratt established that the unauthorized,
negligent acts of individuals acting under color of law do not
violate the Fourteenth Amendment so long as the state provides
adequate postdeprivation remedies.
In Hudson, the Court extended this reasoning to
deprivations arising from the unauthorized, intentional actions
of individuals acting under color of law. “If negligent
deprivations of property do not violate the Due Process Clause
because predeprivation process is impracticable, it follows that
intentional deprivations do not violate that Clause provided, of
course, that adequate state post-deprivation remedies are
468 U.S. at 533.
The Complaint makes clear that
the plaintiff’s claim is that “the defendants intentionally,
wilfully and maliciously deprived the plaintiff’s decedent of
all his money and other property,” Compl. at ¶ 18, so Hudson is
directly on point.
The key question here is whether the state law remedies
available to the plaintiff are adequate postdeprivation
The defendants argue that "Connecticut law provides
meaningful post-deprivation procedures for remedying the loss of
property caused by another person’s unlawful conduct through
state court causes of action.”
Defs.’ Memo. at 9.
that, “[i]ndeed, by including in her complaint a statutory theft
claim under Conn. Gen. Stat. § 52-564, the plaintiff
acknowledges one such cause of action.”
In Parratt, concluding that “the respondent ha[d] not
alleged a violation of the Due Process Clause of the Fourteenth
Amendment,” 451 U.S. at 543, the Court reasoned as follows:
[T]he State of Nebraska has provided respondent with
the means by which he can receive redress for the
The State provides a remedy to persons
who believe they have suffered a tortious loss at the
hands of the State.
See Neb.Rev.Stat § 81-8,209 et
Through this tort claims procedure the
State hears and pays claims of prisoners housed in its
Similarly, in Hudson, where it had been determined that
“several common-law remedies available to respondent would
provide adequate compensation for his property loss,” the Court
concluded that “the State ha[d] provided an adequate
postdeprivation remedy for the alleged destruction of property.”
468 U.S. at 536.
The plaintiff alleges that the defendants intentionally
deprived Nagle of his property.
State officers and employees
are personally liable for intentional torts.
Stat. § 4-165.
See Conn. Gen.
Thus the plaintiff’s state law claims would not
be barred by sovereign immunity.
See Miller v. Egan, 265 Conn.
301, 319 (2003) (“State employees do not, however, have
statutory immunity for wanton, reckless or malicious actions, or
for actions not performed within the scope of their employment.
For those actions, they may be held personally liable, and a
plaintiff who has been injured by such actions is free to bring
an action against the individual employee.”).
Conn. Gen. Stat. § 52-564, which provides that “[a]ny
person who steals any property of another, or knowingly receives
and conceals stolen property, shall pay the owner treble his
damages,” provides redress for the tortious conduct the
In addition, Connecticut law provides a
common law cause of action for conversion where a defendant
engages in an “unauthorized assumption and exercise of the right
of ownership over property belonging to another, to the
exclusion of the owner’s rights.”
Mystic Color Lab, Inc. v.
Auctions Worldwide, LLC, 284 Conn. 408, 418 (2007).
is an intentional tort.
See Luciani v. Stop & Shop Companies,
Inc., 15 Conn. App. 407, 411 (1988).
Thus, the plaintiff also
has a sufficient postdeprivation remedy for the loss of this
property under Connecticut common law.
See Cais v. Town of East
Haddam, No. 3:09-cv-1511 (AWT), 2011 WL 2838170, at *5 (D. Conn.
July 14, 2011) (Connecticut law provided plaintiff with
postdeprivation common law cause of action for conversion),
aff’d, 537 Fed. Appx. 2 (2d Cir. 2013).
A postdeprivation remedy is adequate when “[t]he State
provides a remedy to persons who believe they have suffered a
tortious loss at the hands of the State.”
Parratt, 451 U.S. at
“Although the state remedies may not provide the
[plaintiff] with all the relief which may have been available if
[s]he could have proceeded under 1983, that does not mean that
the state remedies are not adequate to satisfy the requirements
of due process.”
Id. at 544.
Here, Connecticut’s statutory
cause of action for theft and common law cause of action for
conversion each “could have fully compensated the [plaintiff]
for the property loss [that was] suffered.”
Connecticut law provides an adequate postdeprivation remedy, and
there is no procedural due process violation.
plaintiff’s § 1983 claim is entirely foreclosed by established
precedent, and consequently, “completely devoid of merit as not
to involve a federal controversy within the jurisdiction of the
Oneida Indian Nation of N.Y. State v. Oneida
Cty., N.Y., 414 U.S. 661, 666 (1974).
Accordingly, the court
does not have jurisdiction over this claim.
In addition, because the federal claims have been
dismissed, the court declines to exercise supplemental
jurisdiction over the plaintiff’s state law claim pursuant to
Conn. Gen. Stat. § 52-564.
See 28 U.S.C. § 1367(c)(3) (if
federal court dismisses all federal claims, it may decline to
exercise supplemental jurisdiction over supplemental state law
claims); Giordano v. City of New York, 274 F.3d 740, 754 (2d
Cir. 2001) (collecting cases).
For the reasons set forth above, the defendants’ Motion to
Dismiss (Doc. No. 55) is hereby GRANTED as to the procedural due
process claim and the court declines to exercise supplemental
jurisdiction over the state law claim pursuant to Conn. Gen.
Stat. § 52-564.
The Clerk shall close this case.
It is so ordered.
Signed this 17th day of February, 2017, at Hartford,
Alvin W. Thompson
United States District Judge
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