ADGERS v. KELLER, No. CV 05 400 4154 (Feb. 21, 2006)

2006 Ct. Sup. 3450
No. CV 05 400 4154Connecticut Superior Court Judicial District of New London at New London
February 21, 2006

MEMORANDUM OF DECISION RE INTER ALIA, WHETHER TO ENJOIN PLAINTIFF FROM FILING LAWSUITS
CLARANCE J. JONES, JUDGE.

The defendants are a Judge of the Superior Court, an assistant State’s Attorney, two Public Defenders, and a Police Officer. With the exception of the police officer, all other defendants are represented by the Attorney General, who requests this court to issue a permanent injunction to enjoin the plaintiff from pursuing vexatious, harassing and frivolous law suits in the courts of this state. The defendants have filed a motion to dismiss this action which has been brought by plaintiff, Allen Adgers, an incarcerated prisoner appearing pro se.

This court will first address the motion to dismiss.[1]

On August 17, 2005, the plaintiff filed a handwritten complaint naming the following defendants: the Honorable Christine E. Keller (Judge Keller), a judge of the Superior Court; Robert McLaughlin (McLaughlin), assistant public defender; Vicki Melchiorre (Melchiorre), assistant state’s attorney; Dennis P. McDonough, special public defender; and “Officer Koch,” a Hartford police officer.[2] Thereafter, on September 21, 2005, the defendants filed a motion to dismiss accompanied by a memorandum of law in support. On November 29, 2005, the plaintiff filed a handwritten memorandum of law in opposition to the motion to dismiss.

I
“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Internal quotation marks omitted.)Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005). “When a [trial] court decides a CT Page 3451 jurisdictional question raised by a pretrial motion to dismiss it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Citation omitted and internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004). Moreover, “[a] court may raise the issue of its subject matter jurisdiction sua sponte and must dismiss the case if it finds subject matter jurisdiction to be lacking.” State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147
(1992).

The defendants assert that the plaintiff’s action is barred by sovereign and judicial immunity. The plaintiff counters that the doctrines of immunity do not protect the defendants individually and that there are facts that can prove his case. “It is well established that a judge may not be civilly sued for judicial acts he undertakes in his capacity as a judge . . . This role of judicial immunity serves to promote principled and fearless decision-making by removing a judge’s fear that unsatisfied litigants may hound him with litigation charging malice or corruption . . .” (Citation omitted; internal quotation marks omitted.) Carrubba v. Moskowitz, 274 Conn. 533, 540, 877 A.2d 773 (2005). “[This] protection extends only to those who are intimately involved in the judicial process, including judges, prosecutors and judges’ law clerks.” (Internal quotation marks omitted.) Id. “[P]rosecutors are . . . an integral part of the judicial system . . . [and] this court has repeatedly recognized that they are entitled to absolute immunity for their conduct as participants in the judicial proceeding.” (Citation omitted; internal quotation marks omitted.) Id., 541. Public defenders, however, are not afforded absolute immunity, but are considered “`state officers and employees’ entitled to qualified, statutory sovereign immunity pursuant to [General Statutes] § 4-165.”Id., 542 n. 8.

The plaintiff alleges claims against Judge Keller and assistant state’s attorney Melchiorre, arising from their conduct as participants in the judicial proceedings involving the plaintiff. Even in a light most favorable to the plaintiff, the allegations in the plaintiff’s complaint cannot be construed as involving conduct performed outside Judge Keller or Melchiorre’s scope of CT Page 3452 duty or in excess of any statutory authority. The plaintiff, in his opposition to the motion to dismiss offers no legal authority to support his opposition or convince this court to deny the motion to dismiss. As such, this court must conclude that the plaintiff’s claims are barred by the doctrine of judicial immunity and, therefore, this court lacks subject matter jurisdiction.

Furthermore, as discussed above, McLaughlin and McDonough, as an assistant public defender and special assistant public defender, respectively, are afforded qualified, statutory sovereign immunity pursuant to § 4-165. See also Lemoine v. McCann, 40 Conn.App. 460, 462-64, 673 A.2d 115, cert. denied, 237 Conn. 904, 674 A.2d 1330 (1996) (where the court found that special assistant public defenders were protected by sovereign immunity pursuant to § 4-165). Section 4-165 provides in relevant part: “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter. For the purposes of this section, `scope of employment’ shall include, but not be limited to, representation by an attorney appointed by the Public Defender Services Commission as a public defender, assistant public defender or deputy assistant public defender . . .”

The plaintiff does not allege a claim under § 4-165, nor does he allege any facts that could be construed as reckless, malicious or wanton conduct performed on the part of McLaughlin or McDonough. The plaintiff does not allege facts that can be construed as pertaining to McLaughlin or McDonough’s actions outside the discharge of their duties or scope of employment as assistant or special assistant public defenders. Therefore, McLaughlin and McDonough are protected by the doctrine of sovereign immunity. Accordingly, because this court lacks subject matter jurisdiction pursuant to the doctrines of judicial and sovereign immunity, the plaintiff’s complaint is entirely dismissed as to all named defendants.[3]

What remains before this court is whether the defendants’ request for a permanent injunction to enjoin the plaintiff from commencing further vexatious, harassing and frivolous lawsuits should be granted. This court finds that a permanent injunction against the plaintiff is warranted. CT Page 3453

II Permanent Injunction Against Frivolous Lawsuits
In the present case, the plaintiff filed a complaint on August 17, 2005, against the defendants alleging various tort and constitutional claims. This action is but one in a long series of lawsuits commenced by the plaintiff. A review of the court docket reveals that the plaintiff has commenced at least twenty-four civil actions in the courts of Connecticut since 2001.[4]

The plaintiff has been incarcerated in the Connecticut penal system since his 2001 convictions for the sexual assault and kidnapping of his former wife. (See defendants’ exhibit 1, judgment mittimuses and conviction record.) Since that time, the plaintiff has filed complaints against various governmental officials and employees, which include various judges of the Superior Court and the former governor of Connecticut, John Rowland.[5] In addition to the plethora of lawsuits filed against government officials and employees, the plaintiff has also brought suits against his former wife and victim, Fe Martinez.[6] In at least two cases against his former wife, the courts have found that the plaintiff has not alleged sufficient facts, proffered any evidence, or articulated legitimate causes of action to support any claims set forth in his complaints.[7] In many of the cases filed against governmental officials, the courts have consistently found the plaintiff’s claims to have no merit or are barred by sovereign or judicial immunity.[8] As the court in one case described the plaintiff: he is “a pro se serial filer of redundant incoherent lawsuits. At worse, these serial filings abuse the judicial process and harass the defendant. At best, they legitimately, but ineffectively seek to redress wrongs . . . The plaintiff has a history of failing to diligently prosecute cases which he has filed. This history suggests that the plaintiff’s intent in filing these lawsuits is not to redress a wrong which the law recognizes, but rather to harass others by abusing the judicial process.” Adgers v. Doe, Superior Court, judicial district of Hartford, Docket No. CV 05 4014657 (December 22, 2005, Bryant, J.).

A review of the court dockets and the dispositions rendered in the various cases concerning the plaintiff reveals a pattern of judicial abuse wherein the plaintiff has filed frivolous, CT Page 3454 vexatious and legally dubious lawsuits. In most instances, the plaintiff’s cases are disposed of because of the plaintiff’s continuous failure to present sufficient facts and/or adequate and credible evidentiary bases for any of his pleaded claims. Therefore, this court finds that the imposition of an injunction against the plaintiff is warranted. Although an injunction of this type is uncommon, it is not unheard of in the courts of Connecticut.

Our Supreme Court has stated that, “[I]t is well settled that equity may enjoin vexatious litigation . . . This power of equity exists independently of its power to prevent a multiplicity of actions. It is based on the fact that it is inequitable for a litigant to harass an opponent not for the attainment of justice, but out of malice . . . To be vexatious, litigation must be prosecuted not only without probable cause but also with malice.” (Citations omitted.) Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 194, 91 A.2d 778 (1952).

Our Appellate Court has also acknowledged the power of the courts to administer to the expeditious and efficient management of its docket: “The power of a court to manage its dockets and cases by the imposition of sanctions to prevent undue delays in the disposition of pending cases is of ancient origin, having its roots in judgments . . . entered at common law . . . That power may be expressly recognized by rule or statute but it exists independently of either and arises because of the control that must necessarily be vested in courts in order for them to be able to manage their own affairs so as to achieve an orderly and expeditious disposition of cases . . . Simply stated, [t]he inherent powers of . . . courts are those which are necessary to the exercise of all others.” (Citations omitted; internal quotation marks omitted.) In the Matter of Presnick, 19 Conn.App. 340, 347, 563 A.2d 299, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989).

In McCarthy v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 95 2044 (March 18, 1997, Kaplan, J.), the court was confronted with circumstances similar to those in the present case. The petitioner in McCarthy was an incarcerated prisoner who filed writs for habeas corpus. The court, upon review of the petitioner’s history with the court, found that the petitioner had filed at least twenty-four petitions for writs of habeas corpus. In addition, the court found that, in most cases, the petitioner filed numerous pleadings and motions that lacked CT Page 3455 any merit. The petitioner also filed suits against many attorneys and judges associated with his cases, and also filed suits against wardens and the commissioner of the department of corrections. Moreover, the petitioner sent letters to an assistant attorney general and a judge of the Superior Court indicating his desire to overburden the court docket with frivolous suits and to waste the court’s time and resources.

The court found that, “[c]learly, [the] court has the power to enjoin a person from filing malicious litigation at the request of an opponent. This court, however, should not have to await this request when the attack is made for the additional purpose of harassing the court. The Superior Court is part of an independent branch of government created by the constitution of Connecticut . . . Although allied with the executive and legislative branches, as an independent governmental entity, the Superior Court must possess its own defenses to ward off any direct attack on its constitutional powers and obligations . . . The equitable powers set forth in Bridgeport Hydraulic Co. v. Pearson [, supra,] further permit this court, sua sponte, to enjoin a person from filing multiple suits, out of malice and without probable cause, for the purpose of harassing the court.” (Citations omitted.) Id. Therefore, the court, in exercising its inherent powers, ordered, inter alia, that the petitioner be permanently enjoined from filing any new civil actions without first obtaining leave from a judge of the Superior Court.

In Safir v. United States Lines, Inc., 792 F.2d 19 (2nd Cir. 1986), cert. denied, 479 U.S. 1099, 107 S.Ct. 1323, 94 L.Ed. 175
(1987), the United States Court of Appeals for the Second Circuit considered the following five factors in determining whether to restrict a litigant’s future access to the courts: “(1) the litigant’s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties. Ultimately, the question the court must answer is whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties.” Id., 24. This court finds that these five factors are helpful in determining whether an injunction CT Page 3456 should be rendered against the plaintiff in the present matter, and will consider them accordingly.

First, a review of the plaintiff’s litigious history reveals that he has on more than one occasion attempted to prosecute meritless actions against his former wife. As discussed above, his attempts at suing his former wife for various claims such as breach of the marriage contract, defamation and abandonment have been summarily adjudicated against the plaintiff because of his failure to plead meritorious or colorable claims. For instance, in Adgers v. Martinez, Superior Court, judicial district of Hartford, Docket No. CV 01 0809235 (September 29, 2004, Beach, J.), the court found that the plaintiff’s claim for a breach of contract was against public policy. The plaintiff had alleged that he and his former wife had an agreement not to disparage each other. The plaintiff alleged that his former wife breached this contract by contacting police to report that she was sexually assaulted by the plaintiff. At a hearing in damages, the court found that it would be against public policy to enforce a contract where a person would be liable for reporting a crime. The court, therefore, awarded no damages.

Thereafter, the plaintiff attempted again to bring similar claims against his former wife. In Adgers v. Martinez, Superior Court, judicial district of New London at Norwich, Docket No. CV 03 0128233 (September 12, 2005, Devine, J.), the plaintiff alleged that his former wife breached their marriage contract, abandoned the plaintiff and his family, defamed the plaintiff, invaded the plaintiff’s right to privacy, and committed fraud. At the hearing in damages the plaintiff questioned his former wife in an attempt to provide an evidentiary basis for his claims. The plaintiff, however, did not extract any evidence or information that could lend itself to substantiate any of the plaintiff’s causes of action. The court, therefore, found that the claims were devoid of any factual basis upon which the court could award damages. There was no clear invasion of the plaintiff’s rights and, therefore, not even nominal damages could be awarded.

In Adgers v. Doe, supra, Superior Court, Docket No. CV 05 4014657, the plaintiff has again filed another suit against his former wife alleging similar causes of action as the previous two cases. Moreover, as the court has stated in that case, the allegations are virtually indecipherable and devoid of any recognized causes of action. Id. “The case appears to be a defamation and breach of contract action arising out of the CT Page 3457 breakdown of the parties’ marriage, its dissolution and the defendant’s complaint of and testimony concerning the plaintiff’s sexual assault of the defendant.” Id.

In light of the plaintiff’s continual attempts to subject his former wife to suit without providing factual bases or coherent pleadings, this court finds that the plaintiff is repetitiously and vexatiously suing his former wife, and it is a course of conduct this court cannot allow. Furthermore, it is axiomatic that the plaintiff is prosecuting these actions without probable cause. Most of the plaintiff’s cases, including two hearings in damages, were ruled against the plaintiff or disposed of for lack of merit.

Second, the plaintiff, during oral argument in the present matter, admitted that the impetus for filing civil claims against his former wife was to try present evidence relating to his criminal case in which he was convicted for sexual assault. The plaintiff stated that because he had ineffective counsel during his criminal case, he filed civil cases against his former wife in an attempt to have her testify and admit certain facts relating to the sexual assault.[9] Through this admission, it is apparent that the plaintiff does not have a good faith expectation of prevailing on his civil claims, only a desire to relitigate his criminal case.

Third, the plaintiff has filed his actions against his former wife and the various governmental officials as a pro se plaintiff. It appears he has conducted his lawsuits under his own volition and has not attempted to utilize legal aid in drafting his pleadings or prosecuting his claims. These attempts at pro se litigation have exhausted much time and resources from the court. Of the twenty-four cases commenced by the plaintiff, this court is unaware of any in which the plaintiff was granted judgment or damages in his favor. It is clearly evident that the plaintiff’s meritless claims are exhausting valuable court resources which presents unnecessary burdens on the courts and their personnel.

Finally, this court sees no alternative sanction that could adequately address the plaintiff’s duplicitous, dubious and vexatious litigation. The plaintiff is in the habit of filing meritless claims. There is nothing to indicate that the plaintiff will abstain from commencing meritless litigation in the future. Therefore, the court must enjoin the plaintiff from commencing any further civil litigation, petitions for writs of habeas CT Page 3458 corpus and/or proceedings in any administrative agency without prior leave from the court. Otherwise, this court’s ability to carry out its constitutional obligations will be greatly hampered by the plaintiff’s continuous pursuit of meritless claims.

Finding re Protection of Immunity
The court finds that the doctrine of governmental immunity is a complete bar to the plaintiff’s claims against the defendants in this case.

ORDER RE MOTION FOR INJUNCTION
Furthermore, the defendants’ motion to enjoin the plaintiff from pursuing frivolous, vexatious and harassing litigation is hereby granted.

IT IS FURTHER ORDERED
That Allen T. Adgers, a/k/a Allen Adgers-Martinez, is permanently enjoined from filing any civil actions or writs of habeas corpus in any Superior Court or Probate Court of the State of Connecticut or initiating any proceeding in any Connecticut state administrative agency without first obtaining leave from a judge of such court or head of such state agency.

In seeking such leave to file, Allen Adgers must comply with each of the following requirements:

(1) He must file with the complaint or writ a motion captioned,” Motion Pursuant to Court Order Seeking Leave to File.”
(2) As exhibit 1 to that motion, he must attach a copy of this order and memorandum of decision.
(3) As exhibit 2 to that motion, he must attach a sworn affidavit certifying that (a) the claim he wishes to present is a new claim never before raised by him in any court, and (b) that the claim is not brought against, and will not require the participation as a witness of, Fe Martinez, the victim of his crimes resulting in his present term of incarceration.

CT Page 3459

(4) As exhibit 3 to that motion, he must identify by listing the full caption of each and every suit or writ of habeas corpus previously filed by him or on his behalf in any court against each and every defendant to the new suit or writ he wishes to file.

IT IS FURTHER ORDERED that Allen T. Adgers, a/k/a Allen Adgers-Martinez, is hereby permanently enjoined from the filing of any document, motion, affidavit, declaration, or pleading in any case or administrative action to which he is not a party without first seeking leave of the court in which the case is pending or the head of the appropriate administrative agency. Leave to file shall only be obtained by lodging with the court or agency the document sought to be filed, together with a statement setting forth the name(s) of the person(s) to be served and the address(es) at which service will be made and a motion captioned, “Motion Pursuant to Court Order Seeking Leave to File,” to which a copy of this order and memorandum of decision (including attached exhibits) shall be attached as exhibit 1. Allen T. Adgers must obtain such leave before filing any document, motion, affidavit, declaration, or pleading in any case to which he is not a party in any Superior Court of the state of Connecticut.

IT IS FURTHER ORDERED that Allen T. Adgers, a/k/a Allen Adgers-Martinez, is hereby permanently enjoined from serving any document, or having any communication whatsoever; or causing a third party to serve any document or have any communication on Allen T. Adgers’ behalf, with or upon Fe Martinez, except with prior leave of a court or agency before which a matter requiring communication is pending.

IT IS FURTHER ORDERED that Allen T. Adgers, a/k/a Allen Adgers-Martinez, is hereby permanently enjoined from serving upon any person, natural or legal, or any other entity, any document, motion, affidavit, declaration, or other paper purporting to be served in connection with any legal or agency action unless such an action has, in fact, been filed in a court or agency of the state of Connecticut. The identity of the action must be apparent on the face of the paper. Furthermore, the document, motion, affidavit, declaration, or other paper must be properly filed with the court or agency indicated thereon in compliance with the preceding paragraphs of this order.

Failure to comply with the terms of this order may be sufficient grounds for a court or administrative agency to deny CT Page 3460 any motion for leave to file made by Allen T. Adgers, a/k/a Allen Adgers-Martinez. Failure of Allen T. Adgers, a/k/a Allen Adgers-Martinez, to advise a court or agency (in which he has filed a lawsuit, complaint or writ) of this order may be considered by such court or agency as a sufficient defense to dismiss such lawsuit, complaint or writ.

Nothing in this order shall be construed as having any effect on Adgers’ ability to defend himself in any criminal action, except that Adgers is enjoined from filing any post-conviction writs of habeas corpus without first obtaining leave of the Superior Court of the state of Connecticut pursuant to this order. Nothing in this order shall be construed as affecting Adgers’ access to the Appellate Court or the Supreme Court of the state of Connecticut, or to any federal court.

CT Page 3464