Parmlee v. Revenue Sevices

Filing 30

ORDER. For the reasons stated in the attached, the 20 motion to dismiss is hereby GRANTED and the complaint is dismissed with prejudice. The Clerk is directed to close this case. The Clerk is also instructed to amend the docket to add as defendants the list of individuals set forth at ECF No. 1 at 6-10. Signed by Judge Michael P. Shea on 5/9/2022. (Wong, Qing Wai)

Case 3:21-cv-01292-MPS Document 30 Filed 05/09/22 Page 1 of 11

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICHARD T. PARMLEE,
No. 3:21-cv-01292 (MPS)
Plaintiff,
v.

OFFICER OF ATTORNEY
GENERAL & DEPARTMENT OF
REVENUE SERVICES,
Defendants.

RULING ON MOTION TO DISMISS
Richard Parmlee, who is representing himself, has sued the Connecticut Department of
Revenue Services (“DRS”), the Connecticut Attorney General’s Office (the “OAG”), and a long
list of individual defendants. His core claim, which is set forth on a form entitled “Complaint for
A Civil Case Alleging Breach of Contract,” is that DRS, his former employer, breached a
settlement agreement with him by which an earlier lawsuit brought by him was resolved, and that
the OAG assisted DRS in doing so. He also alleges that DRS and “members” of the OAG
conspired to have him placed in jail for non-payment of child support and that his employment
with DRS was terminated in retaliation for filing an earlier complaint. His complaint invokes other
legal provisions as well, including Title VII, the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), laws prohibiting forgery, and common law torts such as fraud and slander.

Case 3:21-cv-01292-MPS Document 30 Filed 05/09/22 Page 2 of 11

After counsel from the OAG appeared on behalf of DRS1 and filed a motion to dismiss the
complaint (ECF No. 20) under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on several grounds, the Court
gave Parmlee an opportunity to amend his complaint to address the alleged defects discussed in
DRS’s memorandum of law. (ECF No. 25.). Parmlee did not amend the complaint and has filed
no response to the motion to dismiss, although in another filing he has indicated that he opposes
the motion. (ECF No. 28 at 3 (“Plaintiff agreed to stay discovery however not to the motion to
dismiss the complaint ….”)). For the reasons set forth below, the Court GRANTS the motion and
dismisses the complaint with prejudice.
I.

Factual Allegations

The complaint alleges the following facts, which the Court accepts as true for purposes of
this ruling.
Parmlee, who was then a DRS employee, entered into a settlement agreement with DRS
on August 25, 1994, to resolve a lawsuit he had brought against the agency arising from his
employment. Under the agreement, DRS was to pay Parmlee a total of one hundred fifty thousand
dollars—forty thousand for him and his attorney and the remainder to cover his back child support
obligations and provide him with the necessary training to become a DRS revenue agent. ECF
No. 1 at 4. In return for his release, DRS also agreed to promote him, give him a new title and
labor grade, and “compensate [him] one hundred and fifty thousand dollars with conditions.” Id.
at 13.
While it paid the forty thousand, DRS, along with “members” of the OAG, breached the
settlement agreement by failing to pay the remainder. DRS and members of the OAG also

1

The appearance form indicates that counsel appears on behalf of DRS only (ECF No. 10), but given that
counsel is an Assistant Attorney General, the Clerk’s Office properly treated the appearance as on behalf of the two
agencies. For simplicity in this memorandum, I will refer to the appearing defendants as “DRS.”

2

Case 3:21-cv-01292-MPS Document 30 Filed 05/09/22 Page 3 of 11

“conspired” to have Parmlee placed in jail for non-payment of child support. Instead of promoting
him, it denied him the promised pay grade, terminated him “as a form of retaliation for filing the
complaint,” and “blacklisted” him for the “pas[t] two decades.” Id. at 4, 15.
Parmlee also alleges that DRS refused to provide him with a copy of the signed agreement
and showed him “an altered copy of another written instrument claiming to be the content of the
settlement agreement,” which “gave rise [to] forgery.” Id. at 18. He also alleges that, around
March of 1995, his “wage garnishment had a sudden increase in deductions of one hundred dollars
per week.” Id. at 20. Although this is not entirely clear, the wage garnishment apparently related
to his child support obligations, and he suggests that “the Attorney Generals” somehow
orchestrated the increase, and ultimately “illegally detained him in a jail cell” in Bridgeport for
two and a half weeks for non-payment of child support. Id. at 22.
With regard to the alleged “blacklisting,” Parmlee alleges that “anywhere [he] would
apply,” he would not receive a callback after the prospective employer did a background check.
He alleges that “[t]his indicated that [he] was being blacklisted as an act to prevent [him] from
obtaining funds to acquire an attorney to represent him in his future case by those conspiring with
the” OAG. Id. at 25.
II.

Legal Standard

DRS has moved to dismiss Parmlee’s complaint under Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. A Rule 12(b)(1) motion challenges the Court’s subject matter
jurisdiction. The Court must dismiss an action for lack of subject matter jurisdiction when it “lacks
the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). In adjudicating a motion to dismiss under Rule 12(b)(1), the court “accept[s]
all of the plaintiff’s factual allegations in the complaint as true and draw[s] inferences from those

3

Case 3:21-cv-01292-MPS Document 30 Filed 05/09/22 Page 4 of 11

allegations in the light most favorable to the plaintiff.” Courtenay Communications Corp. v. Hall,
334 F.3d 210, 213 (2d Cir. 2003).2
Under Rule 12(b)(6), the Court likewise takes the plaintiff’s factual allegations in the
complaint “to be true and [draws] all reasonable inferences in” its favor. Harris v. Mills, 572 F.3d
66, 71 (2d Cir. 2009). “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.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation and quotation marks omitted). “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.” Id. A court need not accept legal conclusions
as true and “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
Generally, pro se plaintiffs are “entitled to special solicitude,” and courts must interpret
their submissions “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks and citations omitted).
However, “the Court need not engage in ‘rank speculations’ to manufacture a federal claim for pro

2
The Second Circuit has not always been clear on this point, stating, at times, that on a Rule 12(b)(1) motion,
the court should not draw inferences in the pleader's favor. Compare McGinty v. State, 193 F.3d 64, 68 (2d Cir. 1999)
(in reviewing dismissal under Rule 12(b)(1), “we must accept all factual allegations in the complaint as true and draw
inferences from those allegations in the light most favorable to plaintiffs”) with Shipping Fin. Servs. Corp. v. Drakos,
140 F.3d 129, 131 (2d Cir. 1998) (“[W]hen the question to be considered is one involving the jurisdiction of a federal
court, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings
inferences favorable to the party asserting it.”) and J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.
2004) (“On appeal of the district court’s order on the motion to dismiss [under Rule 12(b)(1)], we must accept as true
all material factual allegations in the complaint, but we are not to draw inferences from the complaint favorable to
plaintiffs.”). In Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167 (2d Cir. 2008), the court suggested that these
different statements were reconcilable, although it did not explain how: “The court must take all facts alleged in the
complaint as true and draw all reasonable inferences in favor of plaintiff [on a Rule 12(b)(1) motion], “but jurisdiction
must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the
party asserting it.” Id. at 170. In any event, in this ruling, I take as true the allegations in Parmlee’s complaint and
draw all reasonable inferences in his favor.

4

Case 3:21-cv-01292-MPS Document 30 Filed 05/09/22 Page 5 of 11

se plaintiffs.” Gonzalez v. Option One Mortg. Corp., No. 3:12-CV-1470 CSH, 2014 WL 2475893,
at *5 (D. Conn. June 3, 2014).
III.

Discussion
A. Breach of Contract and Other Claims Against the DRS and OAG (Rule
12(b)(1))

The Eleventh Amendment bars federal courts from exercising jurisdiction over claims
brought against state agencies unless the State has consented to be sued in federal court or unless
Congress has abrogated the State’s Eleventh Amendment immunity. See Helgason v. Doe, No. 10
CIV. 5116 PAC JCF, 2011 WL 4089943, at *3 (S.D.N.Y. Sept. 13, 2011) (“The Eleventh
Amendment prohibits federal court jurisdiction over state governments ‘unless they have waived
their Eleventh Amendment immunity, [or Congress has] abrogate[d] the states’ Eleventh
Amendment immunity when acting pursuant to its authority under Section 5 of the Fourteenth
Amendment’” (quoting Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009)). The jurisdictional
bar of the Eleventh Amendment applies to state law claims against state agencies, including claims
for breach of contract like the one here. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 121 (1984) (“[A] claim that state officials violated state law in carrying out their official
responsibilities is a claim against the State that is protected by the Eleventh Amendment.”).
Although there is an exception to the jurisdictional bar of the Eleventh Amendment for claims
brought against state officials in their official capacity to redress ongoing violations of federal law,
nothing in Parmlee’s complaint suggests that there are any ongoing violations of federal law.
Indeed, as DRS notes in its motion, most of Parmlee’s allegations relate to events over two decades
old. Therefore, the breach of contract claim, any other state law claims, any Section 1983 claim
(which would include any First Amendment retaliation claim), and the RICO claim are all
dismissed for lack of jurisdiction under Rule 12(b)(1). See Dube v. State Univ. of N.Y., 900 F.2d
5

Case 3:21-cv-01292-MPS Document 30 Filed 05/09/22 Page 6 of 11

587, 594 (2d Cir.1990) (Eleventh Amendment bars § 1983 claims against state government);
Morabito v. New York, 803 F. App'x 463, 465 (2d Cir.), as amended (Feb. 27, 2020), cert.
denied, 141 S. Ct. 244 (2020) (finding that district court properly dismissed plaintiff’s § 1983
claims against state government, state agency, and state official in his official capacity as barred
under the Eleventh Amendment); Molina v. State of N.Y., 956 F. Supp. 257, 260 (E.D.N.Y. 1995)
(dismissing plaintiff’s RICO claim against state government as barred under the Eleventh
Amendment); Naples v. Stefanelli, 972 F. Supp. 2d 373, 390–91 (E.D.N.Y. 2013) (dismissing
plaintiffs’ RICO claims against state government and state agency as barred under the Eleventh
Amendment).
B. Individual Defendants (Rule 12(b)(6))
Parmlee’s complaint includes a lengthy “list of co-conspirators as players,” all of whom he
intends to name as defendants. See ECF No. 1 at 2 (stating “see list of players for additional
defendants” on line next to “Defendant No. 3”), 6–10 (listing individual defendants). These
include individuals who were employed at state agencies, including DRS, OAG, and others, as
well as two judges of this Court (one of whom is retired) and two attorneys in private practice. Id.
at 6–10. In spite of instructions in the complaint form directing him to “[s]tate how each defendant
was involved and what each defendant did that caused the plaintiff harm or violated the plaintiff’s
rights, including the dates and places of that involvement or conduct,” id. at 4, the complaint sets
forth no facts that indicate what any of these individuals did or did not do that wronged Parmlee.
Instead, it attaches conclusory labels to different groups of these defendants. For example, it dubs
a long list of employees (or former employees) of three State agencies—the “Administrative
Division,” the Commission on Human Rights, and the Department of Administrative Services—
as “players who will be charged with employment discrimination” and other wrongs, and further

6

Case 3:21-cv-01292-MPS Document 30 Filed 05/09/22 Page 7 of 11

describes them as either “accessor[ies] after the fact for those who participated in the act and
concealment” or “accessor[ies] before the fact for those who participated in the act of planning the
discrimination ….” Id. at 6. Even when read through the indulgent lens applicable to pro se
pleadings, these descriptions do not indicate, except in the most conclusory sense, what actions
any of these defendants took, when they took them, where they took them, or how they affected
Parmlee. Because Parmlee has not made any factual allegations that any of the individuals listed
was a party to his contract with DRS or has committed any wrongs against him, he has alleged no
plausible claims against the individuals and all such claims are dismissed under Rule 12(b)(6).
Further, as the bulk of his complaint is devoted to his core breach of contract claim and the
circumstances of the settlement of his employment dispute with DRS make it implausible that any
individual would have been a party to the settlement agreement, the Court does not see how he
could plead plausible claims against the individuals based on the facts he has alleged. Finally, as
it is apparent from the complaint that Parmlee intended to name as defendants all the individuals
listed on pages 6 through 10, see ECF No. 1 at 2, 6-10, the Clerk shall correct the docket to list all
such individuals as defendants and shall reflect on the docket that the complaint has been dismissed
as to all of them.
C. Title VII (Rule 12(b)(6))
Congress has abrogated Eleventh Amendment immunity for Title VII claims, see
Fitzpatrick v. Bitzer, 427 U.S. 445, 452 (1976), and so the Eleventh Amendment would not be a
bar to a Title VII claim. Although the complaint mentions Title VII, it does not appear to allege a
violation of that statute; rather, as noted, it appears to allege a breach of the settlement agreement
related to an earlier Title VII claim brought by Parmlee. Even if I construed the allegations about
retaliation as alleging a Title VII violation, however, there is another flaw in the Title VII claim

7

Case 3:21-cv-01292-MPS Document 30 Filed 05/09/22 Page 8 of 11

that would require dismissal here. As DRS points out in its motion to dismiss, Parmlee’s complaint
is barred by the doctrine of res judicata.3 TechnoMarine SA v. Giftports, Inc., 785 F.3d 493, 498
(2d Cir. 2014) (“A court may consider a res judicata defense on a Rule 12(b)(6) motion to dismiss
when the court’s inquiry is limited to the plaintiff’s complaint, documents attached or incorporated
therein, and materials appropriate for judicial notice.”). “Under the doctrine of res judicata, or
claim preclusion, a final judgment on the merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised in that action. To prove the affirmative
defense of res judicata a party must show that (1) the previous action involved an adjudication on
the merits; (2) the previous action involved the plaintiffs or those in privity with them; and (3) the
claims asserted in the subsequent action were, or could have been, raised in the prior action.” Id.
at 499 (internal quotation marks, citations, and alterations omitted).
This is not Parmlee’s first foray into federal court in his long-running battle with DRS. The
most pertinent portion of the history of that battle is recounted in Magistrate Judge Fitzsimmons’s
August 23, 2001 ruling granting DRS’s and other defendants’ motion for summary judgment
against Parmlee. See Parmlee v. State of Connecticut Dept. of Revenue Servs., 160 F. Supp.2d 294
(D. Conn. 2001). That ruling discusses his first lawsuit, filed in 1990, and its resolution by
settlement agreement in August 1994—the same settlement agreement that he is now alleging DRS
breached—and his claim of an “alteration” or “forgery.” See id. at 296 (noting, among other
things, that “Parmlee now alleges that the document he signed was not the settlement agreement
filed with the court”). Indeed, Judge Fitzsimmons expressly addressed and rejected in her ruling
many of the same claims that Parmlee now makes: “the Court finds as an initial matter that all

DRS is incorrect, however, in arguing that res judicata affects the Court’s jurisdiction. ECF No. 20-1 at 15.
Res judicata is an affirmative defense to liability, Fed. R. Civ. P. 8(c)(1), and it thus goes to the merits of a claim, not
the Court’s jurisdiction.
3

8

Case 3:21-cv-01292-MPS Document 30 Filed 05/09/22 Page 9 of 11

of Parmlee's allegations related to the 1994 settlement agreement, such as his claims for fraud,
conspiracy, forgery, and breach of contract, fail to state a claim under Title VII. Even if these
allegations stated a viable claim under Title VII, the Court holds the claims are time-barred because
the events giving rise to these claims occurred more than 300 days before Parmlee filed his claims
with the CHRO and EEOC.” Id. at 300. This language makes clear not only that Judge
Fitzsimmons rejected Parmlee’s “breach of contract,” “forgery,” and “conspiracy” theories as
bases for a Title VII claim, but also that he could have raised those theories as independent
claims—the same claims he is now apparently trying to assert in this action—in that action. As
noted, res judicata bars claims “asserted in the subsequent action [that] were, or could have been,
raised in the prior action.” TechnoMarine SA, 785 F.3d at 499 (emphasis added).
Fitzsimmons also specifically rejected Parmlee’s retaliation claim:
The Court finds that Parmlee has not made a prima facie showing because he has
failed to establish a causal connection between the adverse action and his protected
activity. Although defendants do not focus on this element, Parmlee provided no
evidence that the employment decisions followed close in time to the protected
activity, that he was treated differently after the complaint, or that other similarly
situated employees were treated more favorably after he engaged in the protected
activity. Without such evidence, the court cannot find a causal connection between
the
protected
activity
and
the
adverse
employment
action.
Therefore, Parmlee's retaliation claim also fails.
…
Parmlee's remaining retaliation claims against DRS also fail. Parmlee alleged that
other specific retaliatory acts committed by DRS included: labeling him a whistle
blower; giving false and derogatory references about plaintiff after he was fired;
monitoring those employees who complained of discrimination, including plaintiff,
and subjecting them to further harassment; and placing plaintiff's picture at DRS
security checkpoints in order to destroy his reputation.
….
Parmlee did not provide any evidence other than speculation to refute the evidence
provided by defendants in support of this motion. As discussed above, conclusory
statements made in the pleadings, without any supporting evidence, are insufficient
to withstand a motion for summary judgment.
Parmlee, 160 F. Supp.2d at 304-06 (citation and footnote omitted).

9

Judge

Case 3:21-cv-01292-MPS Document 30 Filed 05/09/22 Page 10 of 11

There is no question that a summary judgment ruling is an “adjudication on the merits,”
Flowers v. Connecticut Light & Power Co., 2021 WL 5564085 *1 (2d Cir. Nov. 29, 2021) (“An
order granting summary judgment constitutes an adjudication on the merits for the purposes
of res judicata.”); and that the previous action involved Parmlee. So any Title VII claim is barred
by res judicata. And even if the Court had jurisdiction over his other claims, they would be barred
by res judicata as well because they all arise from events that figured in, and were or could have
been the basis for claims raised in, the action in which Judge Fitzsimmons granted summary
judgment against him over twenty years ago.
Although a self-represented plaintiff is ordinarily entitled to an opportunity to amend his
complaint even after the Court issues a ruling granting a defendant’s motion to dismiss, I find that
amendment would be futile here. All of Parmlee’s claims asserting a breach of the 1994 settlement
agreement must be brought against the party to that agreement, i.e., DRS, and the Eleventh
Amendment prohibits Parmlee from suing DRS in federal court for breach of that agreement or
under any of the other legal theories his complaint might be broadly interpreted to embrace, with
the exception of a Title VII claim, which would be barred by res judicata. The Court finds that it
would be futile for him to try to plead around those obstacles to raise a cognizable claim over
which the Court would have jurisdiction based on the facts set forth in his complaint.
IV.

Conclusion

For these reasons, the complaint is dismissed with prejudice and the Clerk is directed to
close this case. The Clerk is also instructed to amend the docket to add as defendants the list of
individuals set forth at ECF No. 1 at 6–10.

10

Case 3:21-cv-01292-MPS Document 30 Filed 05/09/22 Page 11 of 11

IT IS SO ORDERED.

/s/
Michael P. Shea, U.S.D.J.
Dated: Hartford, Connecticut
May 9, 2022

11