McNiece v. Connecticut et al

Filing 61

ORDER. For the reasons discussed herein, the Court GRANTS the 46 , 49 , and 51 Motions to Dismiss. The Court DENIES as moot Ryan Ryan Deluca, LLP's 42 Motion to Dismiss. The Court DENIES as moot the plaintiff's 25 , 26 , 27 , 28 , 29 , 31 , 44 , 57 and 59 motions.Signed by Judge Michael P. Shea on 3/22/2016. (Hillier, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ADAM P. MCNIECE,
Plaintiff,
v.
STATE OF CONNECTICUT,
STATE OF CONNECTICUT JUDICIAL BRANCH,
J. PAUL VANCE, JR., in his official capacity as the
Claims Commissioner for the State of Connecticut,
GEORGE JEPSEN in his official capacity as the
Attorney General for the State of Connecticut,
TOWN OF WATERFORD, and
RYAN RYAN DELUCA, LLP,
Defendants.

No. 3:15-cv-1036 (MPS)

Ruling and Order
Adam P. McNiece, proceeding pro se, sued the State of Connecticut, the State of
Connecticut Judicial Branch (―Judicial Branch‖), Claims Commissioner J. Paul Vance, Jr.,
Attorney General George Jepsen, the Town of Waterford, and the law firm Ryan Ryan Deluca,
LLP for violations of various federal and state laws. He brings seven counts. He claims that (1)
the State of Connecticut and its Judicial Branch violated the Americans with Disabilities Act
(―ADA‖), (2) the Town of Waterford violated 42 U.S.C. § 12186, which relates to regulations by
the Secretary of Transportation, (3) the State of Connecticut and Commissioner Vance violated
his substantive and procedural due process rights, (4) Attorney General George Jepsen has a
conflict of interest, (5) the State of Connecticut, the Town of Waterford, and Ryan Ryan Deluca,
LLP have violated the Connecticut Freedom of Information Act, (6) the Town of Waterford and
Ryan Ryan Deluca, LLP have engaged in a civil conspiracy, and (7) the Judicial Branch, the
Town of Waterford, and Ryan Ryan Deluca, LLP have engaged in a civil conspiracy.
The defendants have moved to dismiss in four separate motions. The plaintiff responded
to the Town of Waterford‘s motion to dismiss (ECF No. 46) and to Ryan Ryan Deluca, LLP‘s

motion to dismiss (ECF No. 42). (ECF Nos. 45, 53.) The plaintiff has not responded to the
motions to dismiss filed by the State of Connecticut, the Judicial Branch, and the Attorney
General (ECF No. 51) or the one filed by Commissioner Vance (ECF No. 49).
The plaintiff invokes the Court‘s jurisdiction under 28 U.S.C. §§ 1331 and 1367. The
claims allegedly giving rise to federal question jurisdiction are Counts I, II, and III. Because I
dismiss Counts I, II, and III, I decline to exercise jurisdiction over Counts IV through VII. 28
U.S.C. § 1367(c)(3).
The following motions by the plaintiff are pending: Motion by Pro Se Litigant to
Participate in Electronic Filing (ECF No. 25); Motion for Audio Transcript (ECF No. 26);
Motion to Disqualify Attorney General (ECF No. 27); Motion for Injunctive Relief Ending State
Sanctioned Dual Agency (ECF No. 28); Motion for Injunctive Relief to Restore Due Process
(ECF No. 29); Motion for Injunctive Relief Defining Duties of a Municipal Attorney (ECF No.
31); Motion for Federal Uniformity in Electronic Filing by a Pro Se Litigant (ECF No. 44);
Motion to Submit Evidence in Support of Claim (ECF No. 57)1; and Motion for Change of
Venue (ECF No. 59)2. I deny these motions as moot.
I.

Factual Allegations
The plaintiff makes the following nonconclusory allegations. (ECF No. 1.) When Adam

P. McNiece filed his Complaint, he lived in the County of New London, Connecticut. (Id. at ¶ 4.)
Mr. McNiece now lives near Gainesville, Florida. (M. for Change of Venue, ECF No. 58 at 1.)
1

In the plaintiff‘s Motion to Submit Evidence in Support of Claim, he attaches a motion
from a state court case that appears to involve Mr. McNiece‘s visitation rights with his child
(ECF No. 57-1 at 1), and an article from the Connecticut Law Tribune about the Attorney
General‘s dissatisfaction with Commissioner Vance‘s decision to give plaintiffs permission to
sue Connecticut under circumstances not relevant here (id. at 2).
2
The plaintiff seeks a change of venue to the District of Kansas where, he says all
litigants may e-file documents, or a district near Gainesville, Florida, which is near his new
home. (ECF No. 58).
2

The Judicial Branch of Connecticut operates the state court system, including the Human
Resource Management Unit, ―which is charged with ensuring full compliance with the
requirements of the ADA.‖ (ECF No. 1 at ¶¶ 6–7.) J. Paul Vance, Jr., is the Claims
Commissioner for Connecticut and ―decides who is allowed to sue the State of Connecticut.‖ (Id.
at ¶ 8.) George Jepsen is the Connecticut Attorney General. (Id. at ¶ 9.) Waterford is a
municipality in Connecticut. (Id. at ¶ 10.) Finally, Ryan Ryan Deluca, LLP is a law firm that
represents the Town of Waterford. (Id. at ¶ 11.)
1.

Count I: ADA Violation Against State of Connecticut and Judicial Branch

Mr. McNiece ―suffers from chronic, debilitating migraines which are triggered by
reading text.‖ (Id. at ¶ 12.) Around June 30, 2014, Mr. McNiece requested ―audio transcripts of
court hearings in civil matters in which he is the plaintiff,‖ with ―the ADA contact person for the
Superior Court located in New London, Connecticut.‖ (Id. at ¶¶ 15–16.) At the request of the
―Court Planner‖ in the ―State of Connecticut Office of the Executive Director‖ on July 17, 2014,
Mr. McNiece‘s health care provider answered a series of questions about Mr. McNiece. (Id. at ¶¶
17–18.) ―Notwithstanding, no reasonable accommodation was ever provided . . . .‖3 (Id. at ¶ 19.)
Around July 24, 2016, Mr. McNiece ―filed an ADA Grievance with the Judicial Branch‘s
Human Resource Management Unit to no avail.‖ (Id. at ¶ 20.) He ―has had numerous court

3

The plaintiff has attached a DVD to the Complaint, which contains an audio recording
of a court hearing on two motions to dismiss for lack of jurisdiction in his state case. The state
court evidently provided the audio recording to the plaintiff. (ECF No. 51-2 at 22.) The transcript
of that hearing is attached to the State of Connecticut‘s Motion to Dismiss. At the hearing, the
plaintiff stated that he had not filed a claim with the Claims Commissioner. (Id. at 5.) He also
said ―[a]nd I can take this [case], because of my ADA claims, straight to the Department of
Justice and have federal claim here tomorrow, but I prefer to try to resolve things here.‖ (Id. at
16.) The state case is McNiece v. Connecticut, KNL-CV14-5014784-S (Conn. Super. Oct. 14,
2014). The court granted the motions to dismiss, but did not dismiss the claims against the Town
of Waterford. (ECF No. 51-2 at 28–32.)
3

hearings since the time that he submitted his initial request for a reasonable accommodation due
to his disability and the subsequent ADA Grievance.‖ (Id. at ¶ 21.)
2.

Count II: Violation of 42 U.S.C. § 12186 Against Town of Waterford

Mr. McNiece alleges that Waterford has denied him ―reasonable ADA accommodations
of audio recordings of public meetings.‖ (Id. at ¶ 25.)
3.

Count III: Substantive and Procedural Due Process Claim Against
Commissioner Vance and State of Connecticut

Mr. McNiece allegedly ―is one of many oppressed citizens of the State of Connecticut
that is subjugated by a tyrannical abuse of authority‖ by Commissioner Vance, ―who has
required the Plaintiff to first submit his claims against the State of Connecticut to his office for a
determination of whether the plaintiff can or cannot sue the State, despite clear and ongoing
violations of the Plaintiff‘s state and federal rights.‖ (Id. at ¶ 28.) Commissioner Vance ―willfully
and knowingly denies Plaintiff‘s fundamental right of due process and other un-enumerated
rights in failing to hold our State and its employees accountable or responsible for their own
actions or abuses of authority.‖ (Id. at ¶ 29.) ―The defendant (an appointed lawyer) uses
sovereign immunity as a shield to conceal negligence, malfeasance, and corruption of the state
and its workers.‖ (Id. at ¶ 29.) When the legislature created this system in the 1970s, they ―did
not recognize its potential for abuse or its contradiction of fundamental law.‖ (Id. at ¶ 30.)
Commissioner Vance and Connecticut ―violate Plaintiff McNiece‘s rights for a full and fair
hearing and a proper path or right of appeal up to and including the United States Supreme Court
as promised by the U.S. Constitution.‖ (Id. at ¶ 31.) Commissioner Vance, ―as authorized by the
Defendant State of Connecticut, imposes his will (one man‘s will) upon all Connecticut Judges
with only a statistically impossible chance for appeal through the legislature whom are also
mostly lawyers.‖ (Id. at ¶ 32.)
4

4.

Count IV: Conflict of Interest Against Attorney General Jepsen

Commissioner Vance uses the Attorney General ―to claim sovereign immunity in every
case even against suits for reasonable accommodations under the ADA, including the plaintiff‘s
suit.‖ (Id. at ¶ 35.) This ―positions the Attorney General Defendant by statute against its own
mission statement.‖ (Id. at ¶ 36.) ―Together they completely ignore congressional abrogation of
this right for the common good of all citizens of Connecticut.‖ (Id.) When a ―similar state
complaint‖ was dismissed, the Attorney General said ―Not everybody can sue the State of
Connecticut.‖ (Id. at ¶ 37.)
5.

Count V: Violation of Conn. Gen. Stat. § 1-200 et seq. Against Waterford,
Ryan Ryan Deluca LLP, and State of Connecticut

Waterford, Ryan Ryan Deluca, LLP, and the Judicial Branch ―share the shame of using
taxpayer funded recording equipment to record public meetings and hearings, then refusing
access to these meetings or hearings to Plaintiff McNiece and the general public, including but
not limited to, reasonable records of ADA accommodation requests submitted by the Plaintiff.‖
(Id. at ¶ 40.)
6.

Count VI: Civil Conspiracy Against Waterford
and Ryan Ryan Deluca, LLP

Waterford and Ryan Ryan Deluca, LLP ―have made no attempt to inform the public of
the nature, cost, or defense strategy in pending cases in which Plaintiff McNiece is a party.‖ (Id.
at ¶ 43.) ―[T]hey continually pilfer town coffers with the assistance of the corrupted officials in
secretive meetings‖ and have refused to comply with the plaintiff‘s ADA accommodation
requests. (Id. at ¶¶ 43–44.)

5

7.

Count VII: Civil Conspiracy Against the Judicial Branch, Waterford,
and Ryan Ryan Deluca, LLP

Finally, the plaintiff alleges that the Judicial Branch, Waterford, and Ryan Ryan Deluca,
LLP have conspired in ten ways, i.e., by (1) ―[f]ailing to act on Plaintiff‘s request for
mandamus‖; (2) ―[e]stablishing and maintaining a bias against pro-se complaints‖; (3)
―[a]llowing multiple motions to strike‖; (4) ―[f]ailing to uphold court orders‖; (5) ―[a]llowing the
public and pro-se to be locked out of a courtroom while opposing counsel is allowed to remain
inside to argue or influence the court and its personnel‖; (6) ―[h]olding court proceedings without
transcripts‖; (7) ―[u]se of court reporters over court monitors to add costs in an effort to deter the
pro-se‖; (8) ―[h]olding mini trials to deny the intent and application of the ADA‖; (9) ―[f]ailing
to provide Plaintiff McNiece with ADA accomodations‖; and (10) ―[a]llowing Ryan Ryan
Deluca LLP to proceed in the litigation as counsel for the Town of Waterford without securing
writs of informed consent as required by the Connecticut Practice Book Rules.‖ (Id. at ¶ 46.)
II.

Standard of Review
A ―case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.‖ Nike, Inc. v.
Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011). The ―plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence that it exists.‖ Luckkett v. Bure,
290 F.3d 493, 497 (2d Cir. 2002). ―In resolving a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings.‖
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
In evaluating whether a plaintiff has stated a claim for relief under Rule 12(b)(6), I must
―accept as true all factual allegations in the complaint and draw all reasonable inferences‖ in
plaintiff‘s favor. Cruz v. Gomez, 202 F.3d 593, 596 (2d Cir. 2000). I need not accept conclusory
6

allegations and may allow the case to proceed only if the complaint pleads ―enough facts to state
a claim to relief that is plausible on its face.‖ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (citing Twombly, 550 U.S. at 554–55). When
a plaintiff submits a complaint pro se, I must construe the allegations liberally, raising ―the
strongest arguments [they] suggest[].‖ Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Even a
pro se plaintiff, however, must meet the standard of facial plausibility set forth above. See Hogan
v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (―[A] pro se complaint must state a plausible claim
for relief.‖) (citing Harris v. Mills, 572, F.3d 66, 73 (2d Cir. 2009)).
III.

Discussion
A.

Count I: “Discrimination Based on Disability Against Defendant State of
Connecticut and Defendant Connecticut Judicial Branch”

The plaintiff has sued Connecticut and the Connecticut Judicial Branch for a violation of
the ADA. The State of Connecticut and the Connecticut Judicial Branch move to dismiss the
plaintiff‘s claims against them in their entirety under both Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
They argue that the Eleventh Amendment, the Rooker-Feldman doctrine, and claim preclusion
bar this suit, and that the plaintiff has failed to state a claim under Title II of the ADA. (ECF No.
51-1 at 2.)
The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend XI. Although not proscribed by the text of the amendment, the Supreme
Court has held it to bar suits against a state by citizens of the same state. Papasan v. Allain, 478
U.S. 265, 276 (1986) (citing Hans v. Louisiana, 134 U.S. 1 (1890)). The Eleventh Amendment
proscribes suits brought against the State or one of its agencies or departments, regardless of the
7

type of relief sought unless the State consents to suit, id. (citing Pennhurst State School & Hosp.
v. Halderman, 465 U.S. 89, 100 (1984)), or Congress abrogates Eleventh Amendment immunity
under § 5 of the Fourteenth Amendment, Pennhurst State School & Hosp., 465 U.S. at 99
(quoting Quern v. Jordan, 440 U.S. 332, 342 (1979)). ―[T]o determine whether [Congress] has
done so in any given case, [a court] ‗must resolve two predicate questions: first, whether
Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did,
whether Congress acted pursuant to a valid grant of constitutional authority.‘‖ Tennessee v. Lane,
541 U.S. 509, 517 (2004).
Congress unequivocally expressed its intent to abrogate the States‘ Eleventh Amendment
immunity when a State is sued under Title II of the ADA. 42 U.S.C. § 12202 (―A State shall not
be immune under the eleventh amendment to the Constitution of the United States from an action
in [a] Federal or State court of competent jurisdiction for a violation of this chapter.‖). Further,
Congress acted under a valid grant of constitutional authority when it sought to abrogate the
States‘ Eleventh Amendment immunity under Title II where a plaintiff invokes Title II to
challenge physical access to state courts. Lane, 541 U.S. at 530 (―[W]e find that Title II
unquestionably is valid § 5 legislation as it applies to the class of cases implicating the
accessibility of judicial services . . . .‖).
According to the Second Circuit, ―Congress‘s abrogation of [a defendant‘s] Eleventh
Amendment immunity to [a plaintiff‘s] Title II claim is valid if [the defendant] violated (1) Title
II and (2) [the plaintiff‘s] right to substantive due process.‖ Bolmer v. Oliveira, 594 F.3d 134,
149 (2d Cir. 2010) (citing U.S. v. Georgia, 546 U.S. 151, 158–59 (2006)). Although this standard
appears to conflate the jurisdictional inquiry with the merits of a case, the Second Circuit has
held that ―if a plaintiff cannot state a Title II claim, the court‘s sovereign immunity inquiry is at

8

an end.‖ Mary Jo C. v. New York State & Local Retirement System, 707 F.3d 144, 152 (2d Cir.
2013).
Title II of the ADA provides in relevant part that ―no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.‖ 42 U.S.C. § 12132. A ―qualified individual with a disability‖
is ―an individual with a disability who, with or without reasonable modifications to rules,
policies, or practices, the removal of architectural, communication, or transportation barriers, or
the provision of auxiliary aids and services, meets the essential eligibility requirements for the
receipt of services or the participation in programs or activities provided by a public entity.‖ 42
U.S.C. § 12131(2). ―The term ‗disability‘ means, with respect to an individual—(A) a physical
or mental impairment that substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment . . . .‖ 42 U.S.C. § 12102(1). ―[M]ajor life activities include, but are not limited to,
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating,
and working.‖ Id. at § 12102(2)(A).
As noted above, ―[i]n resolving a motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings.‖ Makarova,
201 F.3d at 113. When the Complaint is considered together with documents related to the
underlying litigation in state court, it is evident that Mr. McNiece was not ―excluded from
participation in or [been] denied the benefits of the services, programs, or activities‖ of the State
of Connecticut or the Judicial Branch. 42 U.S.C. § 12132. He alleges that the defendants denied

9

his request for ―audio transcripts of court hearings in civil matters in which he is the plaintiff.‖
(ECF No. 1 at ¶ 16.) But to support this claim, he attaches an audio recording of a state court
hearing in a civil matter in which he is the plaintiff. The court told the plaintiff that it would
provide recordings of proceedings involving the plaintiff to the extent that it could. (ECF No. 512 at 29.) The court said:
I will say to Mr. McNiece that I am more than sympathetic and empathetic
to his concerns for open courts and an informed consent of the governed. Let me
narrow the issue back to what I think you‘re really interested in[:] judicial
recordings of proceedings in which you were involved. To the extent that I can
give those to you through court order, I will give them to you.
...
When you appear before me and you wish to get a recording of the audio
proceedings, I will do what I can to order that it be given to you in whatever form
the court reporter‘s office can give it to you.
(Id. at 29–30.)
Earlier in the proceeding, Mr. McNiece said ―I‘m looking for reasonable ADA
accommodation, and I want to thank you for giving me that on a case-by-case basis.‖ (Id. at 9.)
Further, the plaintiff said that he is able to read statutes and the court noted that the plaintiff filed
written motions, which belies the notion that audio recordings are necessary for Mr. McNiece to
access the courts.4 (Id. at 7, 12).
In light of the materials attached to the Complaint and briefs, Mr. McNiece ―cannot state
a Title II claim,‖ Mary Jo C., 707 F.3d at 152, because his allegations that the Judicial Branch
excluded Mr. McNiece from its activities are not plausible. The audio recording attached by Mr.
McNiece shows that the Judicial Branch included him in the judicial process by providing audio
4

Mr. McNiece does say that he ―made several claims for transcript requests,‖ but that
there was ―only one court reporter that that ever fulfilled a transcript request.‖ (ECF No. 51-2 at
16.) That comment appears, however, to refer to written transcripts created by court reporters,
not to audio recordings of court proceedings. (Id.)
10

recordings to him and by allowing him to present his arguments orally. To be sure, at one point
Mr. McNiece complains that he could not read a ninety-two page document written by the
defendants because it was not provided in audio format, (ECF No. 51-2 at 6), but his Complaint
does not suggest that he requested audio versions of briefing from the court or that the court was
in a position to provide such an accommodation (see ECF No. 1 at ¶¶ 12–23).
Because the plaintiff has not alleged that he has been excluded from participation in the
activities of the State of Connecticut or the Judicial Branch under Title II, the ―sovereign
immunity inquiry is at an end.‖ Mary Jo C., 707 F.3d at 152. I dismiss Count I because I lack
jurisdiction.
B.

Count II: “Violation of 42 U.S.C. § 12186 Against Defendant Town of
Waterford”

The plaintiff sued the Town of Waterford under 42 U.S.C. § 12186, (ECF No. 1 at ¶¶ 24–
26), which authorizes the Secretary of Transportation to issue certain regulations, 42 U.S.C. §
12186. District courts possess ―inherent authority‖ to dismiss actions sua sponte as frivolous
even where a pro se plaintiff has paid the filing fee. Fitzgerald v. First East Seventh Street
Tenants Corp., 221 F.3d 362, 363–64 (2d Cir. 2000). An action is frivolous where it is ―based on
an indisputably meritless legal theory‖ or presents ―factual contentions [which] are clearly
baseless.‖ Neitzke v. Williams, 490 U.S. 319, 327 (2d Cir. 1989).
The plaintiff alleges that Waterford ―had denied Plaintiff McNiece with reasonable ADA
accommodations of audio recordings of public meetings‖ but does not otherwise allege facts that
show that Waterford somehow violated a statute directing the Secretary of Transportation to
write regulations. (ECF No. 1 at ¶ 25.).‖ I dismiss his claim under 42 U.S.C. § 12186 because it
is frivolous and fails to state a claim.

11

Further, although I do not decide this issue, 42 U.S.C. § 12186 does not appear to provide
an implied private cause of action under the facts of this case because Congress does not appear
to have intended for plaintiffs to be able to sue under this provision. See McClellen v.
Cablevision of Conn., Inc., 149 F.3d 161, 164 (2d Cir. 1998) (four-prong analysis for implied
private right of action includes whether Congress enacted statute to benefit plaintiff, whether
there is explicit or implicit intent to create or deny a private remedy, whether implying a private
remedy is consistent with the purpose of the legislative scheme, and whether the action is one
traditionally relegated to state law).
Although I dismiss Count II, I also consider whether Mr. McNiece may amend his claim
under 42 U.S.C. § 12186. Whether to grant leave to amend is left to the district court‘s
discretion. John Hancock Mut. Life Ins. Co. v. Amerford Int’l Corp., 22 F.3d 458, 462 (2d
Cir.1994) (citing Forman v. Davis, 371 U.S. 178, 182 (1962)). ―Pro se complaints should be
liberally construed, and district courts should generally not dismiss a pro se complaint without
granting the plaintiff leave to amend, unless it would be futile.‖ Kallas v. Fiala, 591 F. App‘x 30,
31 (2d Cir.2015)) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000)); Fed. R. Civ. P.
15(a). ―An amendment to a pleading is futile if the proposed claim could not withstand a motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).‖ Lucente v. Int’l Business Machines Corp., 310
F.3d 243, 258 (2d Cir. 2002). Because the plaintiff could not allege facts that a town in
Connecticut violated a statute directing the United States Secretary of Transportation to issue
regulations, granting leave in this case would be futile. Thus, the plaintiff may not amend his
claim under 42 U.S.C. § 12186.

12

C.

Count III: “Denial of Substantive and Procedural Due Process Against
Defendant Claims Commissioner and Defendant State of Connecticut”

In Count III, the plaintiff claims that the State of Connecticut and Commissioner Vance
violated the plaintiff‘s substantive and procedural due process rights. Commissioner Vance and
the State of Connecticut move to dismiss Count III under the Rooker-Feldman doctrine and
because the plaintiff lacks standing. As discussed below, I hold that Mr. McNiece does not have
standing.
―An important component of the Article III jurisdictional limit of federal courts to
deciding ‗cases‘ or ‗controversies‘ is standing.‖ Alliance for Envtl. Renewal, Inc. v. Pyramid
Crossgates Co., 436 F.3d 82, 85 (2d Cir. 2006) (citing Allen v. Wright, 468 U.S. 737, 750 (1984),
abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377, 1386–88 (2014)). The plaintiff must have a personal stake in the litigation because ―the
plaintiff‘s genuinely personal stake ensures the presence of ‗that concrete adverseness which
sharpens the presentation of issues upon which [a] court so largely depends.‘‖ Cortland Street
Recovery Corp. v. Hellas Telecommunications I, S.à.r.l., 790 F.3d 411, 417 (2d Cir. 2015)
(quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). ―Determining that a matter before the federal
courts is a proper case or controversy under Article III therefore assumes particular importance
in ensuring that the Federal Judiciary respects ‗the proper—and properly limited—role of the
courts in a democratic society.‘‖ DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)
(quoting Allen, 468 U.S. at 750). ―If a dispute is not a proper case or controversy, the courts have
no business deciding it, or expounding the law in the course of doing so.‖ Id.
―[T]o have Article III standing, a plaintiff must adequately establish: (1) an injury in fact
(i.e., a ‗concrete and particularized‘ invasion of a ‗legally protected interest‘); (2) causation (i.e.,
a ‗fairly . . . trace[able]‘ connection between the alleged injury in fact and the alleged conduct of
13

the defendant); and (3) redressability (i.e., it is ‗likely‘ and not ‗merely speculative‘ that the
plaintiff‘s injury will be remedied by the relief plaintiff seeks in bringing suit).‖ Sprint
Communications Co., L.P. v. APCC Services, Inc., 554 U.S. 269, 273–74 (2008) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). ―[T]he injury required for standing need
not be actualized. A party facing prospective injury has standing to sue where the threatened
injury is real, immediate, and direct.‖ Davis v. Federal Election Comm’n, 554 U.S. 724, 734
(2008) (citing Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).
The plaintiff has the burden of establishing his standing under Article III. Lujan, 504 U.S.
at 561. ―At the pleading stage, general factual allegations of injury resulting from the defendant‘s
conduct may suffice‖ to bear the burden of proof of establishing standing. Id. ―In deciding a Rule
12(b)(1) motion, the court may also rely on evidence outside the complaint.‖ Cortland Street
Recovery Corp., 790 F.3d at 417. Here, the plaintiff has not met his burden of establishing that
he has standing to sue for the alleged denial of substantive and procedural due process arising out
of the requirement that a person who wishes to sue the State of Connecticut must ―first submit
his claims . . . to [the Claim Commissioner‘s] office for a determination of whether the plaintiff
can or cannot sue the State . . . .‖ (ECF No. 1 at ¶ 28.)
The plaintiff has failed to allege or otherwise establish that he suffered or is suffering an
injury in fact. While the plaintiff alleges that the Commissioner is violating the plaintiff‘s rights
to a full and fair hearing with the possibility of ultimately appealing to the United States
Supreme Court, he does not allege that he has a pending claim before the Commissioner. (ECF
No. 1 at ¶ 31.) Further, evidence submitted by the parties confirms that the plaintiff does not
have standing. Makarova, 201 F.3d at 113 (when considering a Rule 12(b)(1) motion, a court
may consider evidence outside of the pleadings). Mr. McNiece filed a recording of a court

14

hearing in which a state judge asked: ―Have you filed a claim with the Commissioner of
Claims?‖ (See ECF No. 51-2 at 5 (providing a written transcript of the recording).) Mr. McNiece
said ―No.‖ (Id.) Commissioner Vance provided uncontroverted evidence that Mr. McNiece does
not have any pending claims before the Commissioner. (Affidavit of Tara M. DuPont, ECF No.
49-1 at 17.) Further, it is unlikely that Mr. McNiece will need to bring suit against Connecticut
because he now lives near Gainesville, Florida. (M. for Change of Venue, ECF No. 58 at 1.)
Mr. McNiece bristles at the statutory function of the Claims Commissioner, which he
characterizes as a system in which the Claims Commissioner ―imposes his will (one man‘s will)
upon all Connecticut Judges with only a statistically impossible chance for appeal through the
legislature whom are mostly lawyers.‖ (ECF No. 1 at ¶ 32.) A person does not have standing to
challenge a statute merely because he believes it to be a ―contradiction of fundamental law‖ (id.
at ¶ 30); he must show that the statute has harmed or will harm him. Mr. McNiece has not done
so. Therefore, I dismiss Count III in its entirety.
D.

Counts IV through VII

As discussed above, Counts I through III are dismissed—the only counts that can
reasonably be said to raise a federal question. As for the state law claims in Counts IV through
VII, jurisdiction of this Court must be based upon supplemental jurisdiction under 28 U.S.C. §
1367. That statute provides that ―[t]he district courts may decline to exercise jurisdiction over a
claim . . . if . . . the district court has dismissed all claims over which it has original
jurisdiction . . . .‖ 28 U.S.C. § 1367(c)(3). As I have dismissed all the claims over which I
allegedly had original jurisdiction, I decline to exercise supplemental jurisdiction over the
remaining claims and dismiss Counts IV through VII. Id.

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IV.

Conclusion
For the reasons discussed above, I GRANT the Town of Waterford‘s Motion to Dismiss

(ECF No. 46), Commissioner Vance‘s Motion to Dismiss (ECF No. 49), and the State of
Connecticut‘s, the Judicial Branch‘s, and the Attorney General‘s Motion to Dismiss (ECF No.
51).
I DENY as moot Ryan Ryan Deluca, LLP‘s Motion to Dismiss (ECF No. 42), the Motion
by Pro Se Litigant to Participate in Electronic Filing (ECF No. 25); the Motion for Audio
Transcript (ECF No. 26); the Motion to Disqualify Attorney General (ECF No. 27); the Motion
for Injunctive Relief Ending State Sanctioned Dual Agency (ECF No. 28); the Motion for
Injunctive Relief to Restore Due Process (ECF No. 29); the Motion for Injunctive Relief
Defining Duties of a Municipal Attorney (ECF No. 31); the Motion for Federal Uniformity in
Electronic Filing by a Pro Se Litigant (ECF No. 44); the Motion to Submit Evidence in Support
of Claim (ECF No. 57); and the Motion for Change of Venue (ECF No. 59).
IT IS SO ORDERED.

/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
March 22, 2016

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