Payne v. Sardi et al

Filing 15

ORDER granting 13 Motion to Dismiss. See attached for memorandum of decision. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 2/14/2017. (Hoffman, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ARNOLD PAYNE, SR.,
Plaintiff,
v.
SHAUNA SARDI and
MARILYS MILLMAN, in their
individual and official capacities,
Defendants.

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Civil Action No. 3:16-cv-396
February 14, 2017

MEMORANDUM OF ORDER
GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 13]
Plaintiff Arnold Payne Sr., pro se, brings this action for injunctive
relief and monetary damages, pursuant to 42 U.S.C. §§ 1981 and 1983,
against Shauna Sardi and Marilys Millman, Connecticut Department of
Children and Families (“DCF”) employees, in their individual and official
capacities. Defendants have moved to dismiss Plaintiff’s Complaint
pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of
Civil Procedure. For the reasons that follow, Defendants’ Motion to
Dismiss is GRANTED, Plaintiff’s Complaint is DISMISSED and the Clerk is
directed to close the case. The Plaintiff may move to reopen the case by
motion filed within 35 days of the date of this order. The motion must be
accompanied by an amended complaint in accordance with this order.
I.

Background
The Complaint alleges that the Department of Children and Families

erroneously substantiated claims that Plaintiff committed sexual abuse,
and placed Plaintiff’s name on a registry [Dkt. No. 1-1 at 3]. The Complaint
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asserts that DCF “must have realized they were wrong,” because after the
Plaintiff contacted DCF about the “unjust substantiation,” DCF sent him a
letter “admitting they’ve made numerous error[]s in their decision to
substantiate.” Plaintiff faults DCF for failing to uncover their errors absent
his intervention, and claims that this failure was a result of carelessness
and a “reckless disregard[] for the truth.” [Dkt. No. 1-1 at 3]. Plaintiff does
not allege facts establishing that the errors were material. He asserts that
DCF violated its own policies by failing to conduct a fair investigation into
the alleged abuse, and by denying him the opportunity to appeal his
substantiation and placement on the registry.
Plaintiff categorically alleges that his placement on the registry
constitutes defamation as well as cruel and unusual punishment, and
violates his substantive due process rights under the Fourteenth
Amendment to the United States Constitution. Plaintiff also alleges that by
failing to offer him the hearing mandated by Conn. Gen. Stat. § 17a-101,
Defendants deprived him of his procedural due process rights. He seeks
injunctive relief in the form of a hearing to contest his substantiation, and
damages for defamation and the violation of his constitutional rights. [Dkt.
No. 1-1 at 2-3].
In their briefing, Defendants identified the registry to which Plaintiff
refers in his Complaint as the “DCF Connecticut Child Abuse and Neglect
Central Registry,” which is governed by section 17a-101k of the
Connecticut General Statutes. [Dkt. No. 13-1 at 1].

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Defendants also stated the Plaintiff was sent a first notice of
substantiation findings on February 20, 2015, and that a corrected notice
letter was sent to him on June 2, 2015. [Dkt. No. 13-1 at 1-2]. Defendants
attached to their Motion to Dismiss a letter dated July 28, 2015 and
referenced by the Plaintiff in his Complaint, which states:
“This will confirm that the enclosed Notification of Investigation
Results, which was forwarded to you by the Department Paralegal on
June 2, 2015, replaces the previous one, dated February 20, 2015,
which contained numerous errors as you had pointed out in a
previous correspondence. The Notification of Investigation Results
dated June 1, 2015, replaces and supersedes the Notification of
Investigation Results of February 20, 2015. You can disregard the
February Notification as that document had numerous errors and is
an inaccurate document. This should clear up any confusion that
may have been caused by your receipt of the February results letter.
As you know, your hearing is scheduled for Monday, December 19,
2016 at 9:30 a.m. . . . as is set forth in the letter of June 2, 2015.”
[Dkt. No. 13-3]. Neither the February 20, 2015 letter nor the June 2, 2015
letter is in the record, nor are the salient portions the record quoted in the
Complaint. Defendants claim that Plaintiff’s administrative hearing had not
been held prior to Plaintiff filing his Complaint because he could not attend
the hearing while he was incarcerated. [Dkt. No. 13 -1 at 13].
Plaintiff originally filed his Complaint in the Connecticut Superior
Court, and Defendants removed the case to this Court pursuant to 28 U.S.C.
§ 1446. Defendants claim that while both Sardi and Millman were served in
their official capacities, only Sardi was served in her individual capacity.
[Dkt. Nos. 1 ¶ 2, 3 ¶ 1]. No returns of service have been filed on the docket.
Plaintiff did not file an opposition brief.

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II.

Legal Standard
The standards of review for a motion to dismiss under Rule 12(b)(1)

for lack of subject matter jurisdiction and under 12(b)(6) for failure to state
a claim are “substantively identical.” Lerner v. Fleet Bank, N.A., 318 F.3d
113, 128 (2d. Cir. 2003). However, on a motion to dismiss under Rule
12(b)(1), the party invoking the Court’s jurisdiction bears the burden of
proof to demonstrate that subject matter jurisdiction exists, whereas the
movant bears the burden of proof on a motion to dismiss under Rule
12(b)(6). Id.
In general, the Court’s review on a motion to dismiss pursuant to
Rule 12(b)(6) “is limited to the facts as asserted within the four corners of
the complaint, the documents attached to the complaint as exhibits, and
any documents incorporated in the complaint by reference.” McCarthy v.
Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court may
also consider documents of which the Plaintiffs had knowledge and relied
upon in bringing suit, Brass v. American Film Technologies, Inc., 987 F.2d
142, 150 (2d Cir. 1993), so long as these documents are “integral” to the
complaint and the record is clear that no dispute exists regarding the
documents’ authenticity or accuracy. Faulkner v. Beer, 463 F.3d 130, 13335 (2d Cir. 2006).
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” Sarmiento v. United States, 678 F.3d 147 (2d Cir.

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2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court “must
accept all factual allegations in the complaint as true, and draw inferences
from those allegations in the light most favorable to the plaintiff.” In re AIG
Advisor Group Sec. Litig., 309 Fed. App’x. 495, 497 (2d Cir.2009).
“A document filed pro se is to be liberally construed, and 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) (quotations and citation omitted).
In considering a motion to dismiss under Rule 12(b)(6), the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court
‘can choose to begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.’” Id.
(quoting Iqbal, 556 U.S. at 679). “At the second step, a court should
determine whether the ‘well-pleaded factual allegations,’ assumed to be
true, ‘plausibly give rise to an entitlement to relief.’” Id. “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, 556 U.S.
at 678 (internal quotations omitted).
III.

Discussion
A. Sovereign Immunity
Absent the a state’s consent or Congressional abrogation, the

Eleventh Amendment bars this Court from exercising jurisdiction over

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suits for money damages brought by citizens of a state against that state,
its agencies, or its employees in their official capacities. Kloth-Zanard v.
Malloy, No. 3:15-CV-00124 (MPS), 2016 WL 5661977, at *3 (D. Conn. Sept.
29, 2016) (citing cases). Because the State of Connecticut has not
consented to suit in this case, and section 1983 does not abrogate the
Eleventh Amendment, id., Plaintiff’s claims for monetary damages against
the Defendants in their official capacities must be DISMISSED.
B. Personal Jurisdiction Over Defendant Millman
To exercise personal jurisdiction over a defendant, a plaintiff’s
service of process on the defendant must have been procedurally proper.
Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir.
2012); see also Gonzalez v. Option One Mortg. Corp., No. 3:12-CV-1470
CSH, 2014 WL 2475893, at *13 (D. Conn. June 3, 2014) (“Absent sufficient
service on a defendant, the Court may not exercise personal jurisdiction
over that party.”).
Rule 4(e) of the Federal Rules of Civil Procedure provides:
Unless otherwise provided by federal law, service upon an individual
from whom a waiver has not been obtained and filed . . . may be
effected in any judicial district of the United States:
(1) pursuant to the law of the state in which the district court is
located, or in which service is effected, for the service of a
summons upon the defendant in an action brought in the courts
of general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint to
the individual personally or by leaving copies thereof at the
individual's dwelling house or usual place of abode with some
person of suitable age and discretion then residing therein or by
delivering a copy of the summons and of the complaint to an
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agent authorized by appointment or by law to receive service of
process.
The record contains no evidence that Millman was served in accordance
with Rule 4(e)(2). The Court will therefore evaluate the adequacy of service
under Connecticut law.
Connecticut law prescribes different methods of service for state
employees served in their official capacities and their individual capacities.
Conn. Gen. Stat. § 52-64(b) sets forth the requirements for serving a state
employee in an official capacity:
In any civil action commenced by a person who is incarcerated
against . . . any officer, servant, agent or employee of the state or of
any such institution, board, commission, department or
administrative tribunal, as the case may be, service of process on all
defendants in such civil action, who are sued in their official
capacity, shall be accomplished by a proper officer (1) leaving one
true and attested copy of the process, including the declaration or
complaint, with the Attorney General at the office of the Attorney
General in Hartford, or (2) sending one true and attested copy of the
process, including the summons and complaint, by certified mail,
return receipt requested, to the Attorney General at the office of the
Attorney General in Hartford.
By contrast, to serve a state employee in her individual capacity, Conn.
Gen. Stat. § 52-57(a) states that “process in any civil action shall be served
by leaving a true and attested copy of it, including the declaration or
complaint, with the defendant, or at his usual place of abode, in this state.”
Under state law, therefore, effecting service that meets the requirements of
section 52-64(b) is not proper for an employee sued in her individual
capacity. See Bogle-Assegai v. Connecticut, 470 F.3d 498, 507 (2d Cir.
2006) (comparing the requirements of Conn. Gen. Stat § 52-64 (official
capacity) with Conn. Gen. Stat. § 52-57(a) (individual capacity) and holding
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that plaintiff had not properly effected service on the defendants in their
individual capacities).
Defendants argue that because Millman has only been served in her
official capacity, the Court must dismiss claims against her in her
individual capacity pursuant to Rule 12(b)(2). The Court agrees. Plaintiff
bears the burden of establishing that each Defendant is subject to the
Court’s jurisdiction, Am. Wholesalers Underwriting, Ltd. v. Am. Wholesale
Ins. Grp., Inc., 312 F. Supp. 2d 247, 251 (D. Conn. 2004). Plaintiff has not
responded to the Motion to Dismiss. Further, the record in this case does
not reflect that Millman was served in her individual capacity. Therefore
the Plaintiff has not established the Court’s jurisdiction over Millman in her
individual capacity, and that claim is DISMISSED.
C. Liability for Damages
Even if the exercise of personal jurisdiction were proper as to both
Defendants in their individual capacities, dismissal would still be
warranted. “It is well settled in this Circuit that personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” Shomo v. City of New York, 579 F.3d 176,
184 (2d Cir. 2009). Plaintiff has not indicated in his Complaint what if any
role Sardi and Millman played in the events giving rise to this case. He
references the Defendants only three times in his complaint:
(1)

“The defendant(s) are being sued in their own individual
official capacities.” [Dkt. No. 1-1 at 2].

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(2)

“The defendant(s) DCF herein caused the plaintiff
irreparable harm and extensive, emotional permanent
damages occurred to him as descri[bed] herein.” [Dkt. No.
1-1 at 2].

(3)

During all times described herein, the defendant[]s were
and still are employees of the New Haven Department of
Children and Families.” [Dkt. No. 1-1 at 3].

(4)

“The acts and omissions of the defendant’s DCF
hereinafter does constitu[t]e a deprivation of the plaintiff[’]s
constitutional rights to be free from slanderous defamatory
statements.” [Dkt. No. 1-1 at 3]

Of these paragraphs, only one contains a factual allegation, and the other
three are legal conclusions. The fact that the Defendants are DCF
employees is insufficient to show that they were personally involved in the
alleged constitutional deprivations. See Kloth-Zanard v. Malloy, No. 3:15CV-00124 (MPS), 2016 WL 5661977, at *4 (D. Conn. Sept. 29, 2016) (holding
that the plaintiff had alleged no conduct actionable under federal law,
where the plaintiff alleged only that defendants “are or were employees of
[DCF]” whose names were “found in DCF records”). In the remainder of the
Complaint, Plaintiff identifies “DCF” as the entity responsible for his
erroneous placement on the registry and the denial of an administrative
hearing. [See Dkt. No. 1-1 at 3]. Because Plaintiff has not alleged that the
Defendants were personally responsible for depriving him of his
constitutional rights, he may not collect damages from them.
D. Injunctive Relief
Similarly, Plaintiff may not seek injunctive relief from the Defendants,
because Plaintiff’s allegation that the Defendants are DCF employees is
insufficient to show that they have the power to add or remove Plaintiff’s
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name from the registry or to grant or deny him a hearing. It is true that “a
plaintiff may sue a state official acting in his official capacity—
notwithstanding the Eleventh Amendment—for prospective, injunctive
relief from violations of federal law,” so long as the Plaintiff alleges an
ongoing violation of federal law, and seeks relief properly characterized as
prospective. In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007).
However, to state a valid claim, Plaintiff must seek relief from parties
empowered to implement the requested action. See Kuck v. Danaher, 822
F. Supp. 2d 109, 151 (D. Conn. 2011); HealthNow N.Y., Inc. v. N.Y., 739 F.
Supp. 2d 286, 294 (W.D.N.Y. 2010), aff’d, 448 F. App’x 79 (2d Cir. 2011) (“For
a state officer to be a proper party, both a particular duty to enforce the
statute in question and a demonstrated willingness to exercise that duty
are needed.” (internal quotations omitted)). The fact that the Defendants
are DCF employees, without more, does not render the Defendants proper
parties. Because Millman and Sardi are improper parties with respect to
injunctive relief, claims against the Defendants in their official capacities
must be DISMISSED.
E. Substantive Claims
Even if Plaintiff had named proper parties, his Complaint would be
deficient, because he did not allege that his placement on the registry
resulted in compensable harm. At least one court in this district has held
that placement on the “DCF Connecticut Child Abuse and Neglect Central
Registry,” may constitute a deprivation of due process rights where the
stigma attached to the registry causes a tangible burden. See Kloth-Zanard
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v. Malloy, No. 3:15-CV-00124 (MPS), 2016 WL 5661977, at *5 (D. Conn. Sept.
29, 2016) (holding that the plaintiff’s “allegations are sufficient to state a
claim for violation of her due process rights under a ‘stigma-plus’ theory,
because they suggest that her improper placement on the registry legally
barred her from the type of employment she sought”). Although “damage
to one’s reputation is not by itself sufficient to invoke the procedural
protection of the Due Process Clause,” the stigma resulting from the
“defamatory character” of being listed on the registry, combined with
“some other state-imposed alteration” in the plaintiff’s legal status, may
constitute “infringement of a protected liberty interest.” McCaul v. Ardsley
Union Free Sch. Dist., 514 F. App’x 1, 3–4 (2d Cir. 2013). Here, Plaintiff has
not alleged that his placement on the registry has caused any tangible
burden or alteration in his legal status.
Plaintiff’s post-deprivation procedural due process claim is moot.
He claims he was denied a hearing by DCF. In support of its motion to
dismiss, the Defendants attach as an exhibit a letter referenced in the
Complaint which it sent to the Plaintiff in response to his correspondence.
The letter states that a hearing was scheduled for December 19, 2016
corroborating the fact that a hearing was afforded. Accordingly, this claim
for denial of post-deprivation due process fails and must be AND IS
HEREBY DISMISSED.

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IV.

Conclusion
For the foregoing reasons, the Defendants’ Motion to Dismiss is

GRANTED in all respects. The Clerk is directed to close the case. The
Plaintiff may move to reopen the case within 35 days of the date of this
Order. Any motion to reopen the case must be accompanied by an
Amended Complaint. The Amended Complaint must name proper parties,
must allege compensable harm, and if the Plaintiff seeks to assert a claim
that he was denied an administrative hearing, his Amended Complaint
must allege facts identifying the DCF employee who deprived him of a
hearing and allege the specific acts and omissions of that employee which
caused the deprivation. The Court will deny any motion to reopen filed
after the deadline set herein or not accompanied by an Amended Complaint
in conformity with this Order.

SO ORDERED at Hartford, Connecticut this 14th day of February, 2017.

____/s/__ _____________________
VANESSA L. BRYANT
UNITED STATES DISTRICT JUDGE

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