Devine v. Fusaro

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 MICHAEL DEVINE, ADMINISTRATOR (ESTATE
OF TIMOTHY DEVINE) v. LOUIS
FUSARO, JR., ET AL.*
(AC 42164)
Prescott, Cradle and DiPentima, Js.

Syllabus

The plaintiff administrator of the estate of the decedent, D, sought to recover
damages from the defendants, four police officers who were members
of a tactical unit of the state police, for the wrongful death of D following
his suicide after a standoff with law enforcement on certain public
property in Groton. The plaintiff’s complaint alleged that, in response
to a Groton police captain’s request for the assistance of the tactical
unit, the defendants arrived at the scene of the standoff and, after several
hours of unsuccessful negotiations with D, who was suicidal and armed
with a handgun, they used less than lethal ammunition on him. D then
shot himself in the head and died as a result of the gunshot. The trial
court granted the defendants’ motion to dismiss on the ground that the
action was barred by the doctrine of sovereign immunity. In reaching
its decision, the court determined that the wrongful death action, as
alleged in the complaint, satisfied the four criteria of the test set forth
in Spring v. Constantino (168 Conn. 563), and, therefore, it was brought
against the defendants in their official, rather than their individual,
capacities. On the plaintiff’s appeal to this court, this court affirmed the
trial court’s judgment. This court thereafter granted the plaintiff’s motion
for reconsideration to address his claim that the panel misapplied the
Spring test by giving too little weight to his express assertion in the
complaint that he had elected to sue the defendants in their individual
capacities. On reconsideration, held that the trial court improperly
granted the defendants’ motion to dismiss the plaintiff’s action on the
ground of sovereign immunity: the plaintiff unequivocally elected to sue
the defendants in their individual capacities, as the operative complaint
stated that the defendants were sued in their individual capacities and
three of the four defendants were served with process at their usual
place of abode, which was required to sue the defendants as individuals,
rather than through the Office of the Attorney General, which would
indicate that the defendants had been sued in their official capacities;
moreover, in concluding that the state was the real party in interest,
the court failed to give proper deference to the express allegation in the
complaint that the plaintiff was suing the defendants in their individual
capacities and improperly concluded that, because the challenged con-
duct occurred while the defendants were acting in their official capaci-
ties, the plaintiff was suing them in their official, rather than their
individual, capacities.
Argued November 17, 2020—officially released July 6, 2021

Procedural History

Action to recover damages for the wrongful death of
the plaintiff’s decedent as a result of the defendants’
alleged recklessness and gross negligence, brought to
the Superior Court in the judicial district of New Lon-
don, where the court, Knox, J., granted the defendants’
motion to dismiss and rendered judgment thereon, from
which the plaintiff appealed to this court, DiPentima,
C. J., and Keller and Norcott, Js., which affirmed the
trial court’s judgment; thereafter, this court granted the
plaintiff’s motion for reconsideration. Reversed; further
proceedings.
Trent A. LaLima, with whom, on the brief, was
Hubert J. Santos, for the appellant (plaintiff).
Clare E. Kindall, solicitor general, with whom were
Matthew B. Beizer, assistant attorney general, and, on
the brief, William Tong, attorney general, and Stephen
R. Finucane, assistant attorney general, for the appel-
lees (defendants).
 Opinion

PRESCOTT, J. This appeal requires us to determine
whether the plaintiff in this wrongful death action seek-
ing to recover money damages has sued four state police
officers in their individual capacities or, conversely,
whether the action is barred by sovereign immunity
because the plaintiff has sued those officers only in
their official capacities. We conclude that the plaintiff’s
complaint, properly construed, alleges a claim for
money damages against the officers in their individual
capacities.
The plaintiff, Michael Devine, as the administrator of
the estate of the decedent, Timothy Devine (Devine),
appeals from the judgment of the trial court dismissing
on sovereign immunity grounds his wrongful death
action against the defendant police officers, Louis
Fusaro, Jr., Steven Reif, Michael Avery, and Kevin
Cook.1 On June 9, 2020, a panel of this court initially
affirmed the judgment of the trial court. Devine v.
Fusaro, 197 Conn. App. 872, 232 A.3d 1178 (2020). The
panel agreed with the trial court that the action was
barred by sovereign immunity because, after applying
the test set forth in Spring v. Constantino, 168 Conn.
563, 568, 362 A.2d 871 (1975) (Spring test), the com-
plaint should be construed as an action brought against
the defendants in their official capacities only and, thus,
against the state itself. Devine v. Fusaro, supra, 883.
The plaintiff subsequently filed a motion for reconsider-
ation en banc, in which he asserted, among other things,
that the panel misapplied the Spring test by giving far
too little weight to his express assertion in the com-
plaint that he had elected to sue the defendants in their
individual capacities.
The motion for reconsideration was granted by the
panel, which rendered action on the motion by the
full court unnecessary.2 Upon reconsideration, we now
conclude, for the reasons that follow, that the trial court
improperly dismissed the action on the ground that it
was barred by sovereign immunity. Accordingly, we
reverse the judgment of the trial court and remand for
further proceedings.
The following facts and procedural history are rele-
vant to the plaintiff’s claim. On November 28, 2017,
the plaintiff commenced the underlying wrongful death
action.3 The plaintiff filed the operative amended com-
plaint on January 12, 2018. That complaint contains a
single count directed against all of the defendants. In his
complaint, the plaintiff alleged the following relevant
facts: On the evening of July 23, 2012, Devine contacted
the Groton Police Department to inform the police that
he was contemplating suicide.4 Thereafter, Devine went
to the University of Connecticut’s Avery Point campus
in Groton armed with a handgun. Groton police officers
located Devine between 10 and 11 p.m. near the water.
Members of the Groton Police Department attempted to
negotiate with Devine. Negotiations were unsuccessful,
and a Groton Police Department captain requested
assistance from the state police tactical unit (tactical
unit). ‘‘At approximately 11:45 p.m., the [tactical unit]
including the defendants, arrived at the scene.’’ Law
enforcement officials continued to negotiate with
Devine for several hours, without success.
‘‘At 3:31 a.m. on July 24, 2012, [Fusaro] commanded
members of the tactical [unit] to begin using [less than
lethal] ammunition on Devine.’’ Avery and Cook com-
plied with Fusaro’s orders and struck Devine with less
than lethal ammunition. Rief subsequently ordered the
tactical unit to fire less than lethal ammunition at
Devine again. Avery and Cook complied with Rief’s
orders and struck Devine a second time. After the sec-
ond round of less than lethal ammunition, Devine raised
the handgun to his head and said to Rief, ‘‘Don’t make
me do this.’’ Devine then lowered the handgun to his
chest. Rief instructed the tactical unit to fire a third
round of less than lethal ammunition at Devine. Devine
was struck by less than lethal ammunition again. Devine
then raised the handgun to his head and shot himself
in the temple. Devine died as a result of the self-inflicted
gunshot.
The plaintiff alleged in the complaint that ‘‘[t]he
actions or omissions of the [d]efendants . . . were
committed intentionally, and/or with reckless indiffer-
ence to Devine’s safety and health and/or with gross
negligence . . . .’’5 The plaintiff further alleged that
‘‘[t]he intentional, reckless and grossly negligent actions
or omissions of the [d]efendants proximately caused’’
Devine’s death and caused damages to the plaintiff.
Finally, the plaintiff alleged that ‘‘[t]he defendants are
not entitled to qualified immunity for their actions.’’
On February 13, 2018, the defendants filed a motion
to dismiss and accompanying memorandum of law,
claiming that the trial court lacked subject matter juris-
diction over the plaintiff’s action because it was barred
by the doctrine of sovereign immunity or, alternatively,
that the defendants were statutorily immune from suit
pursuant to General Statutes § 4-165.6 On March 15,
2018, the plaintiff filed a memorandum of law opposing
the defendants’ motion to dismiss. The plaintiff also
filed additional pleadings including a request for leave
to amend the complaint to remove or amend certain
language in the operative complaint.7 The defendants
objected to the plaintiff’s attempts to amend or alter
the operative complaint, arguing that, because the
motion to dismiss challenged the court’s subject matter
jurisdiction, the court was not permitted to entertain
any amendments prior to an adjudication of the motion
to dismiss. The court sustained the defendants’ objec-
tions in its decision on the motion to dismiss.
On September 10, 2018, using the January 12, 2018
amended complaint as the operative complaint, the
court, Knox, J., issued an order granting the motion
to dismiss. In its memorandum of decision, the court
concluded that the factual allegations in the complaint
established that all four criteria of the test set forth
in Spring v. Constantino, supra, 168 Conn. 568, were
satisfied, and, therefore, that the court could only con-
strue the complaint as having been brought against
the defendants in their official, rather than individual,
capacities. In light of that conclusion, the court also
concluded that sovereign immunity shielded the defen-
dants from suit for money damages and deprived the
court of subject matter jurisdiction. Accordingly, it dis-
missed the action. In its memorandum of decision, the
court further stated that, ‘‘[b]ecause the court lacks
subject matter jurisdiction due to sovereign immunity,
the court does not reach the claim that the action is
barred by statutory immunity.’’ This appeal followed.
The plaintiff’s sole claim on appeal is that the trial
court improperly granted the defendants’ motion to dis-
miss because it misapplied or misconstrued the Spring
test, and, as a result, it improperly concluded that the
plaintiff’s action against the defendants was an action
against the state and barred by the doctrine of sovereign
immunity. In particular, the plaintiff argues that the
court failed to give due consideration to the plaintiff’s
clearly expressed intent to sue the defendants in their
individual capacities. The state argues in response that
the court properly concluded that the facts as alleged
in the complaint satisfied all four of the Spring test
criteria and, because no exception to sovereign immu-
nity applies, the court correctly dismissed the plaintiff’s
action for lack of jurisdiction. For the reasons that
follow, we agree with the plaintiff and, accordingly,
reverse the judgment of the trial court.
‘‘A motion to dismiss tests, inter alia, whether, on
the face of the record, the court is without jurisdiction.
. . . [O]ur review of the court’s ultimate legal conclu-
sion and resulting [determination] of the motion to dis-
miss will be de novo. . . . Moreover, [t]he doctrine of
sovereign immunity implicates subject matter jurisdic-
tion and is therefore a basis for granting a motion to
dismiss. . . . As we must in reviewing a motion to dis-
miss, we take the facts to be those alleged in the com-
plaint, including those facts necessarily implied from
the allegations, construing them in a manner most
favorable to the pleader.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Sullins v.
Rodriguez, 281 Conn. 128, 131–32, 913 A.2d 415 (2007).8
Although ‘‘the general principles governing sovereign
immunity are well established’’; Smith v. Rudolph, 330
Conn. 138, 143, 191 A.3d 992 (2018); courts have strug-
gled to apply those principles consistently and logi-
cally—particularly in cases in which the sovereign
immunity determination implicates concepts such as
individual versus official capacity liability and/or statu-
tory immunity. Accordingly, it is appropriate to consider
the broader legal landscape before turning to our dis-
cussion and application of the law to the facts of the
underlying case. Ultimately, we conclude that a court’s
application of the so-called Spring test is unnecessary
and ill-advised in a case such as the present one in
which the plaintiff has expressed a clear and unambigu-
ous choice in the operative complaint to sue a state
official in his or her individual capacity. In such cases,
the doctrine of sovereign immunity simply is not impli-
cated. Any immunity to be afforded to a state official
or employee sued in his or her individual capacity is
limited to the statutory and personal immunity afforded
under § 4-165. See Martin v. Brady, 261 Conn. 372, 374,
802 A.2d 814 (2002).9
‘‘[W]e have long recognized the validity of the com-
mon-law principle that the state cannot be sued without
its consent . . . .’’ (Internal quotation marks omitted.)
Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006).
The doctrine of sovereign immunity ‘‘protects the state,
not only from ultimate liability for alleged wrongs, but
also from being required to litigate whether it is so
liable.’’ Shay v. Rossi, 253 Conn. 134, 165, 749 A.2d 1147
(2000), overruled in part by Miller v. Egan, 265 Conn.
301, 325, 828 A.2d 549 (2003). ‘‘[T]he practical and logi-
cal basis of the doctrine [of sovereign immunity] is
today recognized to rest . . . on the hazard that the
subjection of the state and federal governments to pri-
vate litigation might constitute a serious interference
with the performance of their functions and with their
control over their respective instrumentalities, funds,
and property. . . . Not only have we recognized the
state’s immunity as an entity, but [w]e have also recog-
nized that because the state can act only through its
officers and agents, a suit against a state officer con-
cerning a matter in which the officer represents the
state is, in effect, against the state. . . . Exceptions to
this doctrine are few and narrowly construed under our
jurisprudence.’’ (Citation omitted; internal quotation
marks omitted.) Markley v. Dept. of Public Utility Con-
trol, 301 Conn. 56, 65, 23 A.3d 668 (2011).
There are three recognized exceptions to the doctrine
of sovereign immunity: ‘‘(1) when the legislature, either
expressly or by force of a necessary implication, statu-
torily waives the state’s sovereign immunity . . . (2)
when an action seeks declaratory or injunctive relief
on the basis of a substantial claim that the state or one
of its officers has violated the plaintiff’s constitutional
rights . . . and (3) when an action seeks declaratory
or injunctive relief on the basis of a substantial allega-
tion of wrongful conduct to promote an illegal purpose
in excess of the officer’s statutory authority.’’ (Citations
omitted.) DaimlerChrysler Corp. v. Law, 284 Conn.
701, 720, 937 A.2d 675 (2007). By their terms, only the
first of these three exceptions applies in an action seek-
ing only monetary damages.10
Accordingly, if a plaintiff hopes to maintain an action
for monetary damages against the state itself, he may
do so only if such a suit is authorized pursuant to a
clearly expressed statutory waiver of sovereign immu-
nity or if the plaintiff first obtains a waiver from the
Claims Commissioner. See General Statutes § 4-160;11
Miller v. Egan, supra, 265 Conn. 317 (‘‘[a] plaintiff who
seeks to bring an action for monetary damages against
the state must first obtain authorization from the
[C]laims [C]ommissioner’’); see also Baker v. Ives, 162
Conn. 295, 298, 294 A.2d 290 (1972) (‘‘state is immune
from suit unless the state, by appropriate legislation,
consents to be sued’’ and ‘‘state’s sovereign right not
to be sued without its consent is not to be diminished
by statute unless a clear intention to that effect on the
part of the legislature is disclosed, by the use of express
terms or by force of a necessary implication’’ (internal
quotation marks omitted)).
Rather than suing the state directly, a plaintiff instead
may elect to sue a particular state official or employee.
If, however, the plaintiff sues that person only in his
or her official capacity as a representative of the state,
that suit will be construed as the equivalent of a suit
against the state itself and, without a valid waiver, the
suit likewise will be barred by sovereign immunity. See
Miller v. Egan, supra, 265 Conn. 313. To avoid a dis-
missal on sovereign immunity grounds, a plaintiff must
elect to sue the state official in his or her individual
capacity. By choosing to do so, however, the plaintiff
takes on additional pleading and proof requirements
needed to overcome a claim of statutory immunity
afforded to state officials and employees pursuant to
§ 4-165, namely, that the plaintiff plead and establish
some wanton, reckless, or malicious act. See footnote
6 of this opinion.
The policy interest underlying the legislature’s grant
of statutory immunity pursuant to § 4-165 is ‘‘the protec-
tion of state employees from liability for negligent acts
that occur in the course of employment.’’ Hunte v.
Blumenthal, 238 Conn. 146, 153, 680 A.2d 1231 (1996);
see also Spring v. Constantino, supra, 168 Conn. 571.
In Miller v. Egan, supra, 265 Conn. 319, the court stated
that § 4-165’s grant of ‘‘statutory immunity to state
employees has a twofold purpose. First, the legislature
sought to avoid placing a burden upon state employ-
ment. Second, § 4-165 makes clear that the remedy
available to plaintiffs who have suffered harm from the
negligent actions of a state employee who acted in the
scope of his or her employment must bring a claim
against the state ‘under the provisions of this chapter,’
namely, chapter 53 of the General Statutes, which gov-
erns the [O]ffice of the [C]laims [C]ommissioner.’’
(Footnote omitted.) The policy recognizes the reality
that people would be reluctant to take on the responsi-
bilities inherent in many state positions if they could
be held liable in the event that they acted negligently.
The statute strikes a balance by immunizing state offi-
cials and employees for negligent acts only. It does not
provide immunity for acts deemed wanton, reckless, or
malicious, presumably in order to deter those individu-
als from engaging in such seriously wrongful conduct.
Our Supreme Court has described the relationship
that exists between the common-law doctrine of sover-
eign immunity and the statutory immunity provided by
§ 4-165 in the following way: the former is ‘‘raise[d] as
a shield from the claims against [defendants] in their
official capacities’’ and the latter is ‘‘raise[d] as a shield
from the claims against [defendants] in their individual
capacities.’’ Shay v. Rossi, supra, 253 Conn. 162; see
also Mercer v. Strange, 96 Conn. App. 123, 128, 899 A.2d
683 (2006) (it is well settled that defense of sovereign
immunity is applicable only to claims brought directly
against state itself or against state employees acting in
official capacities, whereas defense of statutory immu-
nity is applicable to claims brought against state
employees acting in individual capacities).
Accordingly, a plaintiff who claims to have suffered
some compensable injury as a result of actions taken
by a state official or employee is faced with difficult
choices in electing to commence a legal action. Chief
among those choices is the decision whether to sue a
state official as an individual or in his or her official
capacity, each of which presents its own advantages
and disadvantages.12 Courts should not disregard these
choices if they are clearly expressed in the pleadings.
See Reclaimant Corp. v. Deutsch, 332 Conn. 590, 607
n.11, 211 A.3d 976 (2019) (‘‘[a]s the master of the com-
plaint, the plaintiff is free to decide what theory of
recovery to pursue’’); Miller v. Egan, supra, 265 Conn.
309 (agreeing that ‘‘the right of a plaintiff to recover is
limited by the allegations of [his] complaint’’ and warn-
ing courts not to ‘‘countenance a variance [from the
allegations of a complaint] which alters the basic nature
of a complainant’s cause of action’’ (internal quotation
marks omitted)).
A problem arises, however, whenever the plaintiff
names a state official or employee as a defendant in
an action without clearly designating whether the plain-
tiff is suing that person in his or her individual or official
capacity. Our Supreme Court has affirmed that the ‘‘test
set forth in Spring and Miller [v. Egan, supra, 265 Conn.
301] is an appropriate mechanism . . . to determine
the capacity in which the named defendants are sued
in actions asserting violations of state law . . . .’’ Sul-
lins v. Rodriguez, supra, 281 Conn. 136.
For the reasons that follow, we do not read the prece-
dent of our Supreme Court to require a court to apply
the Spring test if the complaint unequivocally states
the capacity in which the defendant is sued. Indeed,
closer examination of Spring and our Supreme Court’s
application of the Spring test in Miller reveals that the
test is not well suited for and was never expressly
intended to apply to instances in which a plaintiff has
made a clearly expressed election in the complaint to
sue a state official in his or her individual capacity. The
utility of the Spring test, at least as it has been applied
by our Supreme Court, is far narrower. Nevertheless,
even a cursory review of decisions of our trial and
appellate courts demonstrates that courts have con-
strued complaints as effectively having been brought
against the state even in the face of clear and contrary
indications in the complaint and elsewhere in the record
that the plaintiff has chosen to sue the defendant in
an individual capacity. Accordingly, we are concerned
that, if courts continue to apply the Spring test in such
an expansive manner, they risk misconstruing most
complaints brought against a state official or employee
for actions taken while in service of the state as an
action against that person only in his or her official
capacity and, thus, necessarily against the state.
We begin our analysis with a discussion of Spring
and Miller. In Spring, the plaintiff brought an action
for professional malpractice against a public defender
who had been assigned to represent her in a criminal
matter. Spring v. Constantino, supra, 168 Conn. 564.
The attorney general filed a special appearance on
behalf of the defendant and filed a motion to dismiss
the action, in which he claimed that the defendant had
immunity from suit. Id. The defendant advanced three
grounds for immunity: judicial immunity, common-law
sovereign immunity, and statutory immunity. Id., 564–
65. The trial court dismissed the action and the plaintiff
appealed.
In discussing sovereign immunity, our Supreme Court
in Spring indicated that the underlying action had been
brought against the defendant ‘‘in his personal capac-
ity,’’ but that it agreed with the attorney general’s asser-
tion, quoting from Somers v. Hill, 143 Conn. 476, 479,
123 A.2d 468 (1956), that ‘‘[t]he fact that the state is
not named as a defendant does not conclusively estab-
lish that the action is not within the principle which
prohibits actions against the sovereign without its con-
sent. . . . The vital test is to be found in the essential
nature and effect of the proceeding.’’ (Internal quotation
marks omitted.) Spring v. Constantino, supra, 168
Conn. 568. The Spring decision, however, omits the
sentence immediately preceding the quoted passage
from Somers. That sentence adds important context to
the stated rule: ‘‘Whether a particular action is one
against the state is not determined solely by referring
to the parties of record.’’ (Emphasis added.) Somers v.
Hill, supra, 479. Thus, the quoted passage from Somers,
considered in its full context, simply recognizes that a
plaintiff cannot avoid application of sovereign immunity
simply by naming a state official as the defendant rather
than the state directly. There is nothing in either the
Spring or Somers decision that elucidates the extent
to which this rule applies in suits expressly brought
against a state official in his or her individual, rather
than official, capacity.
The court in Spring set forth the following four crite-
ria, also taken from its earlier decision in Somers, ‘‘for
determining whether [an action] is, in effect, one against
the state and cannot be maintained without its consent:
(1) a state official has been sued; (2) the suit concerns
some matter in which that official represents the state;
(3) the state is the real party against whom relief is
sought; and (4) the judgment, though nominally against
the official, will operate to control the activities of the
state or subject it to liability.’’ (Internal quotation marks
omitted.) Spring v. Constantino, supra, 168 Conn. 568.
The court, however, provided no guidance on how the
individual criteria should be interpreted or applied, indi-
cating only that it was ‘‘questionable whether any of
these elements exist in the present action, but this need
not be decided because the first element—that a state
official has been sued—is not satisfied. A public
defender in representing an indigent [client] is not a
public official as that term has been defined by this
court.’’ Id. The court concluded: ‘‘The public defender
when he represents his client is not performing a sover-
eign function and is therefore not a public or state
official to whom the doctrine of sovereign immunity
applies.’’ Id., 569.
The decision in Spring, thus, was decided only on
the first criterion. The opinion is silent with respect to
the fact that the plaintiff expressly had sued the public
defender in his ‘‘personal capacity’’ or to what extent
that fact entered into the court’s dicta that questioned
whether any of the other criteria, including the third,
was met. Ultimately, the court in Spring concluded that
the public defender did not enjoy any of the immunities
advanced by the attorney general, and it reversed the
judgment of the court and remanded for further pro-
ceedings.13 Id., 576.
We turn next to our Supreme Court’s decision in
Miller v. Egan, supra, 265 Conn. 301, the only case in
which our Supreme Court has had occasion to apply
the Spring test. In Miller, a former county sheriff’s
office employee brought an action against the state
and against several sheriffs alleging defamation, false
imprisonment, civil conspiracy, and violations of his
civil rights. Id., 307. The complaint brought against the
sheriffs asserted claims against them in their official
capacities. Nevertheless, on appeal from the trial court’s
dismissal of his action on sovereign immunity grounds,
the plaintiff claimed that his complaint sued the sheriffs
‘‘in their individual capacities, as well as in their official
capacities.’’ Id. In support of his argument that he had
in fact sued the defendants in their individual capacities,
the plaintiff pointed to the fact that he had named each
of the sheriffs separately as a defendant in the complaint
along with the state. Id.
In addressing that claim, the Supreme Court first
stated: ‘‘If the plaintiff’s complaint reasonably may be
construed to bring claims against the defendants in
their individual capacities, then sovereign immunity
would not bar those claims.’’ (Emphasis added.) Id.,
citing Martin v. Brady, supra, 261 Conn. 374. Next,
the court indicated that resolution of whether a state
official was sued in an individual or official capacity,
however, did not turn on merely identifying a state
official as a party in the complaint, agreeing with the
defendants that the plaintiff had made repeated express
allegations in the complaint that he was suing the sher-
iffs in their official capacities. Miller v. Egan, supra, 265
Conn. 307–308. Noting that construction of a pleading is
a question of law, over which appellate courts exercise
plenary review; see Home Oil Co. v. Todd, 195 Conn.
333, 340, 487 A.2d 1095 (1985); the court next stated
that ‘‘[t]he determination of whether the plaintiff’s com-
plaint alleged claims against the defendants in their
individual capacities is governed by the [Spring test].’’
Miller v. Egan, supra, 308. The court noted that the
plaintiff conceded that the first two criteria of the
Spring test were met, but argued that ‘‘the third crite-
rion is not met because the complaint sought relief
both from the state and from the individual defendants.’’
(Emphasis added.) Id. Although the complaint before
the court in Miller named specific state officials as
parties, the complaint in Miller, unlike in the present
case, contained no express allegation by the plaintiff
that he sought to sue the state officials in their individual
capacities at the time the action was commenced. Nor
was that assertion made in response to the defendants’
motion to dismiss.
To the contrary, as Justice Borden emphasized in
Miller, ‘‘[n]owhere in the plaintiff’s complaint did he
allege that he was bringing an action against the defen-
dants in their individual capacities. Instead . . . the
complaint repeatedly alleged that the defendants acted
in their official capacity. We agree with the defendants
that the right of a plaintiff to recover is limited by the
allegations of [his] complaint . . . . We do not counte-
nance a variance [from the allegations of a complaint]
which alters the basic nature of a complainant’s cause
of action . . . .’’ (Emphasis added; internal quotation
marks omitted.) Id., 309.
In addition to the complaint, the court also consid-
ered other aspects of the record before it, stating: ‘‘The
plaintiff’s arguments to the trial court in opposition to
the motion to dismiss further support the conclusion
that the plaintiff had, until now, sought relief solely
from the state. The defendants’ motion to dismiss the
entire complaint was based on the doctrine of sovereign
immunity, which they argued deprived the court of sub-
ject matter jurisdiction and required the plaintiff to
exhaust his administrative remedies by proceeding
through the [O]ffice of the [C]laims [C]ommissioner.
The plaintiff could have responded, in his objection to
the motion to dismiss, that his complaint had brought
claims against the individual defendants, not only in
their official capacities, but also in their individual capa-
cities, and could have argued that sovereign immunity
was inapplicable to any individual capacity claims,
but he did not do so. Instead, the plaintiff argued that
the legislature had [statutorily] waived sovereign immu-
nity . . . and that he was not required, [under] § 4-165,
to exhaust his administrative remedies because he had
alleged in the complaint that the defendants’ actions
were reckless and malicious. The trial court’s memoran-
dum of decision specifically referenced the latter argu-
ment and concluded that it was inapplicable to the
present case because the plaintiff had asserted his
claims against the defendants solely in their official
capacities and sought relief solely from the state. The
plaintiff did not seek clarification or articulation based
on the trial court’s determination. . . . [T]he plaintiff
had multiple opportunities in the trial court to argue
that his complaint sought relief from the defendants in
their individual capacities, in addition to seeking relief
from the state, but he failed to do so.’’ (Citations omit-
ted; emphasis altered.) Id., 309–10.
Finally, the court in Miller stated: ‘‘We decline to
permit the plaintiff now, merely by making a conclusory
statement that he also sought relief against the individ-
ual defendants, to avoid dismissal of the complaint.
Otherwise, it would simply be too easy for a plaintiff,
who originally had alleged causes of action against a
state officer only in his official capacity, thus seeking
relief solely against the state, subsequently to claim that
he also sought relief against the state officer in his
individual capacity. By utilizing this tactic, a plaintiff
could, at least partially, avoid dismissal of a complaint
due to sovereign immunity and subject the unsuspecting
state officer to personal liability.’’ Id., 310.
Only after a thorough review of the complaint and
finding it utterly lacking any indication that the plaintiff
had attempted to sue the defendants in their individual
capacities, did the court conclude that the third crite-
rion of the Spring test had been met as to all counts.
Id., 311. With respect to the fourth criterion, the court
concluded that it was satisfied ‘‘because the complaint
sought relief solely against the state [and therefore] a
judgment against the state would subject it to liabil-
ity.’’ Id.14
At least one state trial court, relying on the analysis
in Miller, persuasively has held that the four part Spring
test has no applicability in the context of a case in
which the plaintiff’s complaint expressly provides that
state officials have been sued in their individual capaci-
ties. In Walsh v. State, Docket No. X03-CV-XX-XXXXXXX,
2006 WL 391306 (Conn. Super. February 1, 2006), the
administrators of the estate of a prisoner who had died
in his cell by hanging filed an action against a number
of state officials, expressly stating in the complaint that
they did so in their individual capacities. Although the
complaint primarily raised federal civil rights violations,
the officials nevertheless filed a motion to dismiss
claiming that all but one count was barred by common-
law sovereign immunity and state statutory immunity.
Id., *1–2. The defendants urged the court, despite clear
indication in the complaint that the defendants were
sued in their individual capacities, to apply the Spring
test and ‘‘look beneath the pleadings and conclude that
while the plaintiffs purport to sue [the] defendants in
their individual capacities, [the] defendants are in actu-
ality being sued in their capacities as state employees
discharging their statutory duties.’’ Id., *2. The plaintiff
responded, among other things, that the Spring test
was inapplicable, arguing in relevant part that the test
‘‘has only limited viability in light of the language used
by Justice Borden in [Miller] [that] [i]f the plaintiffs’
complaint reasonably may be construed to bring claims
against the defendants in their individual capacities,
then sovereign immunity would not bar these claims.’’
(Emphasis omitted; internal quotation marks omitted.)
Id., *3, citing Miller v. Egan, supra, 265 Conn. 307.15
Judge Lavine, at the time a Superior Court judge,
agreed with the plaintiff’s assertion. In discussing the
applicability of the Spring test, the court stated: ‘‘Even
if the state sovereign immunity defense were available,
the court concludes that it would not require dismissal
of the challenged counts in this case given the nature
of the allegations in the complaint. The court shares
[the] plaintiffs’ view that Justice Borden’s above-quoted
statement in Miller v. Egan, [supra, 265 Conn. 307] calls
into question the continuing vitality of the four part
test of Spring v. Constantino, [supra, 168 Conn. 563].16
Having reviewed the complaint, the court concludes
that it may reasonably be construed to bring claims
against the defendants in their individual capacities. In
fact, it does so explicitly and repeatedly. . . . In light
of these allegations, which the court must construe in
a manner most favorable to the pleader . . . the court
declines to construe the complaint as [the] defendants
suggest.’’ (Citations omitted; emphasis added; footnote
added; internal quotation marks omitted.) Walsh v.
State, supra, 2006 WL 391306, *4. In short, like in Miller,
Judge Lavine gave proper deference to the plaintiff’s
clear and unambiguous election, as expressed in the
complaint, to sue the defendants in their individual
capacities and refused to sanction the defendants’ effort
to undermine the plaintiff’s choice of defendant by
applying the Spring test, which the court determined
was inapplicable in light of the guidance in Miller.
 With the foregoing legal background and discussion
in mind, we turn to the present case. The plaintiff, in
his operative complaint, asserted in the opening para-
graphs in which he identifies the parties to the action
that ‘‘[t]he defendants are sued in their individual capa-
cit[ies].’’ This statement represents an unequivocal elec-
tion on the part of the plaintiff regarding the legal theory
of liability that he intended to pursue.17 Unlike in Miller,
the plaintiff did not wait until his action was dismissed
on the ground of sovereign immunity to clearly assert
his intent to sue the defendants in their individual capa-
cities. Because there is only one reasonable construc-
tion of the plaintiff’s direct assertion that he sought to
sue the defendants in their individual capacities, pursu-
ant to Miller, ‘‘then sovereign immunity would not bar
these claims.’’ Miller v. Egan, supra, 265 Conn. 307. The
trial court appears not to have considered properly
this unequivocal statement in reaching its contradictory
conclusion, after application of the Spring test, that
the action had been brought against the defendants only
in their official capacities and, thus, by implication,
against the state.
Looking to other aspects of the record, as the court
did in Miller, we note that the manner in which the
action was commenced provides additional support for
construing the complaint as one brought against the
defendants in their individual capacities. Rather than
having served the defendants through the Office of the
Attorney General, which would have been expected in
an action brought against the defendants in their official
capacities, process was served on three of the four
defendants at their ‘‘usual place of abode’’ as required
to sue the defendants as individuals.18 It was incumbent
upon the court to construe the complaint, if possible,
in a manner consistent with the plaintiff’s choices as
the ‘‘master of the complaint’’; Reclaimant Corp. v.
Deutsch, supra, 332 Conn. 607 n.11; and in favor of
jurisdiction over the action. Consistent with our
Supreme Court’s statement in Miller, we conclude that
it was improper for the court to have treated the case
like one in which a plaintiff had sued a state official or
employee without designating whether he intended to
sue that person in his official or individual capacity. It
is only in the absence of an express designation by
the plaintiff in the complaint regarding the capacity in
which a state official or employee has been sued that
the Spring test offers any real utility.
Even if our Supreme Court were to disagree with our
construction of the true purpose of the Spring test, or
were to conclude that it was appropriate under the
circumstance for the trial court to have applied the
Spring test in this matter, particularly in light of the
fact that its application was advocated for by both sides,
we would nevertheless still disagree with the trial
court’s ultimate application of the test, particularly with
respect to the third criterion.
We agree with the court that the first two elements
of the Spring test are satisfied. With respect to the first
criterion, the plaintiff concedes, as he must, that at
all times relevant to this action, the defendant police
officers held positions as state officials. By citing the
officers as the defendants in his complaint, it is undis-
puted that ‘‘a state official has been sued’’ and, there-
fore, the first criterion of the Spring test is met. See
Spring v. Constantino, supra, 168 Conn. 568.
With regard to the second criterion, namely, that ‘‘the
suit concerns some matter in which that official repre-
sents the state’’; id.; it is equally indisputable that the
present action concerns a matter in which the defen-
dants are alleged to have been acting while on duty as
police officers and, thus, representing the state.
Although the plaintiff argues that the defendants’ use
of less than lethal ammunition on Devine was conduct
that went beyond the scope of their duties as police
officers and, thus, should be characterized as an assault,
the facts as alleged in the amended complaint in no
way indicate that the defendants were acting other than
in their capacities as police officers. Rather, the com-
plaint alleges that the defendants all responded to the
scene as members of the tactical unit and that Avery and
Cook fired the less than lethal ammunition at Devine
in response to direct orders given by Fusaro and Rief,
acting in their command roles. The complaint contains
no allegations suggesting that any of the defendants
ever ceased to act pursuant to their roles as state
employees, and, therefore, the second criterion of the
Spring test is met.19 See Cimmino v. Marcoccia, 149
Conn. App. 350, 359, 89 A.3d 384 (2014) (second crite-
rion of Spring test was met because defendants were
allegedly ‘‘acting in furtherance of a joint investigation
authorized by statute and initiated by the state agencies
that employed them’’); Kenney v. Weaving, 123 Conn.
App. 211, 216, 1 A.3d 1083 (2010) (second criterion was
met because ‘‘[t]he allegedly reckless actions of the
defendant were related to his duties as commissioner’’).
We do not agree, however, with the trial court’s appli-
cation of the third criterion, which asks whether ‘‘the
state is the real party against whom relief is sought.’’
Spring v. Constantino, supra, 168 Conn. 568. As we
have already discussed, the court failed to give proper
deference to the express allegation in the plaintiff’s
complaint that he sought relief from the officers in
their individual capacities. In concluding to the con-
trary that the state was the real party in interest, the
trial court stated that ‘‘[t]he plaintiff’s claims arise from
the injuries allegedly caused by the defendants’ conduct
that occurred during and as part of their official duties
as state employees’’ and thus it followed that ‘‘they
acted in their official capacities, implicating the state.’’
Given that the purpose of the Spring test is to determine
whether the defendants were sued in their official or
individual capacities, to conclude that the third prong
of that test is met on the basis of a determination that
the defendants acted in their official capacities is circu-
lar logic.
We acknowledge that courts, including this one, have,
on occasion, concluded that the state is the real party
in interest solely because the injuries alleged were the
result of the actions by an individual taken during the
performance of his or her official state duties. See, e.g.,
Cimmino v. Marcoccia, supra, 149 Conn. App. 359–60;
Macellaio v. Newington Police Dept., 142 Conn. App.
177, 181, 64 A.3d 348 (2013). In so concluding, those
courts have employed language similar to that used by
the trial court in the present case. The use of such
language, however, risks obscuring the true purpose
of the Spring test—determining in the absence of an
expressed intent whether a state official has been sued
in his or her official or individual capacity—and conflat-
ing the second criterion of the Spring test with the
third criterion thereby suggesting, through implication,
that anytime a state employee or official is sued for
actions conducted while carrying out official duties, the
state itself, rather than the official, necessarily must be
the real party in interest.
By way of example, in Macellaio v. Newington Police
Dept., supra, 142 Conn. App. 181, this court stated that
‘‘[t]he third criterion of [the Spring test] [was] met
because damages [were] sought for injuries allegedly
caused by the [employee] for performing acts that
[were] a part of his official duties such that the state
is the real party against whom relief is sought.’’ In Cim-
mino v. Marcoccia, supra, 149 Conn. App. 359–60, this
court similarly held that the third criterion of the Spring
test was satisfied because the ‘‘damages sought by the
plaintiff [were] premised entirely on injuries alleged to
have been caused by the [employees] in performing
acts that were part of their official duties.’’ If the quoted
language continues to be employed as supporting the
conflated rationale that we have identified, a plaintiff
seeking to sue a state official on a theory of individual
liability would almost always be precluded from doing
so because of sovereign immunity because the actions
of the state official always would be attributed to the
state, even if the actions were alleged to be reckless,
wanton, or malicious in nature.20
Importantly, applying the Spring test so broadly also
risks undermining the legislature’s purpose for enacting
§ 4-165, which was to protect state officials and employ-
ees from liability for negligent acts while performing
official duties. If all acts taken by a state official or
employee while in service of the state are automatically
construed as actions taken in his or her official capacity
attributable to the state, liability for those acts would
be barred by sovereign immunity, rendering the need
for statutory immunity pursuant to § 4-165 superfluous
and unnecessary. See, e.g., Kenney v. Weaving, supra,
123 Conn. App. 219 n.5 (determining on basis of Spring
test that defendant was entitled to defense of sovereign
immunity ‘‘and, therefore, the plaintiff cannot maintain
her cause of action against him regardless of whether
she could demonstrate recklessness pursuant to § 4-
165’’). If a suit seeking damages from state officials
carrying out their duties as agents of the state always
will be determined to be a suit against the state, thereby
implicating sovereign immunity, there would never be
a real need for § 4-165. It is axiomatic that ‘‘[n]o part
of a legislative enactment is to be treated as insignificant
or unnecessary, and there is a presumption of purpose
behind every sentence, clause or phrase . . . [so that]
no word [or phrase] in a statute is to be treated as
superfluous.’’ (Internal quotation marks omitted.) State
v. Peeler, 271 Conn. 338, 434–35, 857 A.2d 808 (2004),
cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d
110 (2005).
Consequently, we agree with the plaintiff’s argument
that, in considering whom the action was brought
against—i.e., the real party in interest—the court was
required to give far greater weight to the fact that the
plaintiff specifically pleaded that he brought the action
against the defendants in their individual capacities.
This is not a case in which a state official has been
named as a defendant without any indication of whether
that person is being sued in an individual capacity or
only in an official capacity as an agent of the state. As
the plaintiff correctly points out, he specifically and
clearly pleaded claims against the defendants in their
individual capacities.21 Although, as we have already
noted, the complaint also states that the defendants
‘‘[were] employed as law . . . enforcement officer[s]
by the state of Connecticut and acting under the color
of law,’’ nowhere in the complaint does the plaintiff
indicate by express language that his intent was to sue
the defendants in their official capacities, and therefore
we are unconvinced that this language alone is suffi-
cient to negate the express allegation to the contrary.
See footnote 17 of this opinion. Having determined that
the third criterion is not met, it is unnecessary to reach
whether the fourth criterion of the Spring test would
be satisfied under the facts alleged.22
To summarize, because we have determined that the
plaintiff’s wrongful death action was brought against
the defendants in their individual capacities, we con-
clude that the trial court improperly granted the motion
to dismiss on sovereign immunity grounds.23 Accord-
ingly, we reverse the judgment and remand the matter
to the court with direction that it vacate its granting of
the motion to dismiss and that it consider the remaining
ground raised in the motion, namely, whether the plain-
tiff’s complaint sufficiently alleges reckless, wanton, or
malicious conduct such that, if proven, the defendants
would not be entitled to statutory immunity under
§ 4-165.24
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opin-
ion.
In this opinion the other judges concurred.
* This opinion supersedes the opinion of this court in Devine v. Fusaro,
197 Conn. App. 872, 232 A.3d 1178 (2020).
1
Prior to filing the underlying action, the plaintiff brought a federal civil
rights action in federal court against the same officers in which he also
raised his state law claims. See Estate of Devine v. Fusaro, Docket No. 3:14-
cv-01019 (JAM), 2016 WL 183472 (D. Conn. January 14, 2016). On January
14, 2016, the District Court granted the defendants’ motion for summary
judgment on the federal claims on the basis of qualified immunity. Id., *1.
The District Court also declined to exercise supplemental jurisdiction over
the remaining state law claims and dismissed them without prejudice. Id.,
*9. On January 23, 2017, the United States Court of Appeals for the Second
Circuit affirmed the District Court’s judgment. See Estate of Devine v.
Fusaro, 676 Fed. Appx. 61, 64–65 (2d Cir. 2017).
Additionally, in July, 2013, the plaintiff filed a notice of claim with the
state Office of the Claims Commissioner, in which he sought a waiver of
the state’s sovereign immunity to allow him to bring an action against the
state for negligence. The plaintiff, however, in response to a motion to
dismiss filed by the state, withdrew the notice of claim in December, 2014.
The present action followed.
2
Due to the unavailability of some members of the original panel, reargu-
ment was heard by the present panel with no objection by the parties. In
addition to granting reconsideration, this court ordered the parties sua
sponte to file supplemental briefs addressing whether ‘‘[f]or the purposes
of deciding a motion to dismiss, does the test in Spring v. Constantino,
[supra, 168 Conn. 563], for assessing whether a state employee has been
sued in his individual or official capacity apply in light of Martin v. Brady,
261 Conn. 372, [802 A.2d 814] (2002).’’
3
With respect to Fusaro, Reif, and Avery, the marshal’s return to court
indicates that service of process was made by abode service. Service on
Cook was made in hand to a state trooper at the Connecticut State Police
Headquarters in Middletown, who, according to the return, was authorized
to accept legal service for Cook. ‘‘Pursuant to [General Statutes] § 52-57
(a), a defendant in any civil action must be served in hand or at his usual
place of abode. This requirement includes civil suits brought against state
defendants who are sued in their individual capacities. . . . [By way of
example], a plaintiff who serves a state defendant pursuant to [General
Statutes] § 52-64 (a) by leaving a copy of the process at the Office of the
Attorney General has properly served the defendant only in his or her official
capacity and has failed to properly serve the defendant in his or her individual
capacity.’’ (Internal quotation marks omitted.) Jan G. v. Semple, 202 Conn.
App. 202, 220, 244 A.3d 644, cert. denied, 336 Conn. 937, 249 A.3d 38 (2021).
Although only three of the four defendants appear to have been served ‘‘at
his usual place of abode,’’ any claim that the court lacked personal jurisdic-
tion over the defendants in their individual capacities on the basis of
improper service of process or otherwise has been waived by the defendants
as a result of their failure timely to file a motion to dismiss on that basis with
the trial court. See Practice Book §§ 10-30 and 10-32; Pitchell v. Hartford,
247 Conn. 422, 433, 722 A.2d 797 (1999).
4
In its decision in the federal court action brought pursuant to 42 U.S.C.
§ 1983, the District Court indicated that the record before it established that
a detective from the Groton Police Department had contacted Devine earlier
that day and ‘‘told him that she wished to discuss allegations of serious and
scandalous criminal misconduct that had been made against Devine. At first,
Devine agreed to come [to the police department] but [soon after] called
[the detective] back to say that he would not meet with [her]. He told the
detective that he had his [handgun] on his lap and was pulling the hammer
back and that ‘if a single person walks up on me, I will put a round through
my head.’ ’’ Estate of Devine v. Fusaro, Docket No. 3:14-cv-01019 (JAM),
2016 WL 183472, *1 (D. Conn. January 14, 2016); see also footnote 1 of
this opinion.
5
The plaintiff alleged that the acts or omissions of the defendant that
supported his claim of ‘‘wrongful death due to recklessness or gross negli-
gence’’ consisted of but were not limited to (1) ‘‘[u]nnecessarily exacerbating
tensions in the confrontation,’’ (2) ‘‘[f]ailing to appropriately respond to
an individual in a mental illness crisis,’’ (3) ‘‘[u]nreasonably, excessively
assaulting Devine with less-lethal ammunition,’’ (4) ‘‘[c]ontinuing to exacer-
bate tensions and assault Devine, increasing the chances for violence,’’ and
(5) ‘‘fail[ing] to stand down after responding to the scene.’’
6
General Statutes § 4-165 (a) provides: ‘‘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 or her
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.’’
(Emphasis added.)
7
Specifically, the plaintiff sought to correct addresses attributed to the
defendants in the complaint which differed from the addresses at which
process was served as reflected in the return of service. The plaintiff also
sought to eliminate language that referred to the defendants as police officers
who were acting ‘‘under color of law.’’ The plaintiff also filed a partial
withdrawal seeking to withdraw this language from the complaint. According
to the plaintiff, the ‘‘under color of law’’ language mistakenly was transferred
from the allegations in the defunct federal lawsuit, in which it was necessary
to show that the officers had acted ‘‘under color of law’’ to establish their
liability under 42 U.S.C. § 1983. See Adickes v. S. H. Kress & Co., 398 U.S.
144, 150, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
8
This is, of course, the standard that applies when, as in the present case,
‘‘a trial court decides a jurisdictional question raised by a pretrial motion
to dismiss on the basis of the complaint alone . . . .’’ Conboy v. State,
292 Conn. 642, 651, 974 A.2d 669 (2009). If, however, ‘‘the complaint is
supplemented by undisputed facts established by affidavits submitted in
support of the motion to dismiss . . . [or] other types of undisputed evi-
dence . . . the trial court, in determining the jurisdictional issue, may con-
sider these supplementary undisputed facts and need not conclusively pre-
sume the validity of the allegations of the complaint. . . . Rather, those
allegations are tempered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evidence submitted in sup-
port of a defendant’s motion to dismiss conclusively establish that jurisdic-
tion is lacking, and the plaintiff fails to undermine this conclusion with
counteraffidavits . . . or other evidence, the trial court may dismiss the
action without further proceedings. . . . If, however, the defendant submits
either no proof to rebut the plaintiff’s jurisdictional allegations . . . or only
evidence that fails to call those allegations into question . . . the plaintiff
need not supply counteraffidavits or other evidence to support the complaint,
but may rest on the jurisdictional allegations therein. . . .
‘‘Finally, where a jurisdictional determination is dependent on the resolu-
tion of a critical factual dispute, it cannot be decided on a motion to dismiss
in the absence of an evidentiary hearing to establish jurisdictional facts.
. . . Likewise, if the question of jurisdiction is intertwined with the merits
of the case, a court cannot resolve the jurisdictional question without a
hearing to evaluate those merits. . . . An evidentiary hearing is necessary
because a court cannot make a critical factual [jurisdictional] finding based
on memoranda and documents submitted by the parties.’’ (Citations omitted;
emphasis omitted; footnotes omitted; internal quotation marks omitted.)
Id., 651–54.
9
Martin was a certified appeal from a decision of this court; Martin v.
Brady, 64 Conn. App. 433, 780 A.2d 961 (2001); in which we had affirmed
the trial court’s dismissal of an action brought against several state police
officers on sovereign immunity grounds. Martin v. Brady, supra, 261 Conn.
374. The certified issues were ‘‘[w]hether the Appellate Court properly con-
cluded that Binette v. Sabo, [244 Conn. 23, 710 A.2d 688 (1998)], does not
permit the plaintiff’s tort action because (1) the defendants are protected
by the doctrine of sovereign immunity and (2) the facts are not sufficiently
egregious?’’ Martin v. Brady, 258 Conn. 919, 782 A.2d 1244 (2001). Although
the defendants fully briefed the certified questions, at oral argument they
conceded that, construing the complaint properly, the plaintiff had sued
them in their individual, rather than their official, capacities and, therefore,
sovereign immunity was not really at issue. Rather, ‘‘the only jurisdictional
question remaining was whether [the defendants] were protected by the
statutory, personal immunity provided by § 4-165.’’ Martin v. Brady, supra,
261 Conn. 374. The Supreme Court agreed that the defendants were statuto-
rily immune from suit, and they affirmed this court’s judgment on that
alternative ground. Id. Although the Supreme Court in Martin did not discuss
the Spring test or sovereign immunity, the procedural posture of that appeal
helps illustrate the point we seek to make in the present case: namely, if a
plaintiff elects to sue a state official in his or her individual capacity and
makes that choice clear in the operative complaint, sovereign immunity
cannot properly act as a bar to the action; rather, the issue becomes one
of statutory immunity only.
10
The second and third exceptions, by their terms, are applicable only in
those actions seeking declaratory or injunctive relief. In such an action, the
complaint must contain sufficient factual allegations that, if proven, would
support a finding that a state official or employee has acted unconstitution-
ally or in excess of statutory authority to avoid dismissal on sovereign
immunity grounds. See Markley v. Dept. of Public Utility Control, supra,
301 Conn. 66. The rationale behind these exceptions is that, ‘‘[i]n those
cases in which it is alleged that the defendant officer is proceeding under
an unconstitutional statute or in excess of his statutory authority, the interest
in the protection of the plaintiff’s right to be free from the consequences
of such action outweighs the interest served by the sovereign immunity
doctrine. Moreover, the government cannot justifiably claim interference
with its functions when the acts complained of are unconstitutional or
unauthorized by statute.’’ (Internal quotation marks omitted.) Id., 66 n.11.
11
General Statutes § 4-160 (a) provides in relevant part: ‘‘Whenever the
Claims Commissioner deems it just and equitable, the Claims Commissioner
may authorize suit against the state on any claim which, in the opinion of
the Claims Commissioner, presents an issue of law or fact under which the
state, were it a private person, could be liable. . . .’’
12
For example, whereas the state ordinarily may represent a potential
‘‘deep pocket’’ for the payment of damages, it may be legally difficult, time
consuming, and ultimately fruitless to seek a waiver of sovereign immunity
from the Claims Commissioner if one is not clearly provided for by statute.
Conversely, although the difficulties associated with overcoming the hurdle
of sovereign immunity theoretically may be avoided by suing a state official
or employee in his or her individual capacity, the trade-off requires the
plaintiff to allege and ultimately prove far more than merely negligent con-
duct on the part of the official, but rather some wanton, reckless, or malicious
act. Otherwise, the plaintiff risks dismissal of the action on statutory immu-
nity grounds. See General Statutes § 4-165.
13
We note that the legislature has since added public defenders to the
definition of ‘‘state officers and employees’’ entitled to statutory immunity
under § 4-165. See General Statutes § 4-141 (5) (B); Gross v. Rell, 304 Conn.
234, 248 n.7, 40 A.3d 240 (2012).
14
The court also rejected the plaintiff’s argument that, even if sued only
in their official capacities, the defendants had acted ‘‘in excess of their
statutory authority’’ and thus the matter fell within an exception to the
sovereign immunity doctrine. Miller v. Egan, supra, 265 Conn. 312. The
court determined that the exception was inapplicable because it was limited
to actions seeking declaratory or injunctive relief and did not extend to
actions that sought money damages, as did the plaintiff’s action. Id., 312–13.
In so holding, the court expressly overruled its prior decisions in Shay v.
Rossi, supra, 253 Conn. 134, and Antinerella v. Rioux, 229 Conn. 479, 642
A.2d 699 (1994), to the extent that those decisions had held that sovereign
immunity did not bar monetary damage actions against state officials in their
official capacities if they allegedly had acted in excess of statutory authority.
15
Federal trial courts have also recognized this same principle. See, e.g.,
Longmoor v. Nilsen, 285 F. Supp. 2d 132, 143 (D. Conn. 2003) (citing Miller for
proposition that, if plaintiff sued state police officers only in their individual
capacities, defendants are not protected by common-law doctrine of sover-
eign immunity).
16
We construe Judge Lavine’s statement as questioning only the applicabil-
ity of the Spring test with respect to cases in which the plaintiff clearly
and unambiguously has expressed an intent to sue a state official in his or
her individual capacity, not, more generally, cases in which it is unclear as
to the plaintiff’s election regarding the capacity in which the state official
has been sued.
17
We recognize that this court, on occasion, has stated that trial courts
are not required to accept as wholly determinative a plaintiff’s allegation
that an individual rather than the state is the real party in interest. See
Cimmino v. Marcoccia, 149 Conn. App. 350, 359, 89 A.3d 384 (2014); Kenney
v. Weaving, 123 Conn. App. 211, 215–16, 1 A.3d 1083 (2010). We are mindful,
however, that we are bound to follow our Supreme Court’s language in
Miller requiring a court to defer to the plaintiff’s election if the complaint
reasonably can be construed to bring an action against a state official in
an individual capacity. See Max’s Place, LLC v. DJS Realty, LLC, 123 Conn.
App. 408, 415, 1 A.3d 1199 (2010) (‘‘[a]s an intermediate appellate court, we
must follow the precedent of our Supreme Court along the path which our
considered reading of that precedent lays out for us’’ (internal quotation
marks omitted)).
18
Service of process for the fourth defendant, Cook, was made by in hand
service to an individual alleged to be authorized to accept legal service for
Cook. The question of whether, if challenged, this would have been deemed
insufficient to bring Cook within the jurisdiction of the court in his individual
capacity has been waived. See footnote 3 of this opinion. Nonetheless, it is
noteworthy that the plaintiff did not seek to serve Cook through the attorney
general as he would have if he wished to sue Cook only in his official
capacity. See General Statutes § 52-64 (a) (‘‘Service of civil process in any
civil action . . . against any officer, servant, agent or employee of the state
. . . may be made by a proper officer (1) leaving a 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 a
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’’); see also Harnage v. Lightner,
163 Conn. App. 337, 341, 137 A.3d 10 (2016) (it is ‘‘clearly established that
§ 52-64 (a) applies only if a state employee has been sued in his official
capacity and that § 52-57 (a) applies when a state employee is sued in his
individual capacity’’), aff’d in part, vacated in part, 328 Conn. 248, 179 A.3d
212 (2018).
19
Although the plaintiff argues that the court, in determining that the
second criterion of the Spring test was met, impermissibly relied entirely
on the language in the complaint alleging that the defendants were ‘‘acting
under color of law’’—language the plaintiff had sought to remove or amend—
the plaintiff misinterprets the court’s analysis. The court did state that the
allegations that the defendants were acting under the color of law ‘‘suffi-
ciently show that the individual defendants represent the state.’’ The court
further stated, however, that, ‘‘[a]lthough this is sufficient to satisfy the
second criterion, there is a separate bas[is] to do so.’’ (Emphasis added.)
The court explained: ‘‘The additional factual allegations all concern the
defendants acting in their official police functions. The plaintiff alleges that
the [Groton police captain] requested the presence of the [tactical unit] and
the four defendants responded to the scene as members of and a part of
the [tactical unit].’’ (Emphasis omitted.) We, therefore, reject the plaintiff’s
argument that the court’s analysis improperly was limited to the ‘‘color of
law’’ allegations.
20
This opinion should not be read as overruling sub silencio any previous
Appellate Court decisions because, as a matter of policy, one panel of this
court will not overrule another panel’s decision in the absence of en banc
consideration. See McCullough v. Rocky Hill, 198 Conn. App. 703, 712 n.13,
234 A.3d 1049, cert. denied, 335 Conn. 985, 242 A.3d 480 (2020). We invite
our Supreme Court, if provided an appropriate opportunity, to discuss more
fully and definitively the proper application of the Spring test criteria or
to reformulate the Spring test, something it has not yet had an opportunity
to consider.
21
In Visual Displays, Inc. v. Fields, Docket No. Civ. 3:93-837 (JAC), 1993
WL 366532 (D. Conn. August 24, 1993), a federal District Court judge, applying
the Spring test, held that the third prong of the test was not met because
the plaintiffs had expressly stated in their complaint that ‘‘all the defendants
are sued in their individual capacities’’; id., *4 n.26; and, because the plaintiffs
‘‘have sued the defendants solely in their individual—not their official—
capacities’’; id., *5; it follows that ‘‘the state is not the real party in interest
. . . .’’ Id.
22
We nonetheless take this opportunity to caution courts to avoid constru-
ing the fourth criterion too expansively such that almost every suit nominally
brought against a state employee, even if the relief sought is limited to
money damages against the individual, will be deemed to ‘‘operate to control
the activities of the state or subject it to liability.’’ Spring v. Constantino,
supra, 168 Conn. 568.
In considering the state’s possible liability under the fourth criterion,
courts routinely have looked to General Statutes § 5-141d (a) to determine
whether the state is obligated to indemnify state officials or employees if
judgment were rendered against them in favor of the plaintiff. ‘‘Section 5-
141d . . . evinces the legislature’s intent that the state indemnify and defend
any officer or employee sued for negligent conduct occurring in the course
of his or her employment.’’ Hunte v. Blumenthal, supra, 238 Conn. 151. If,
however, a plaintiff alleges wanton, reckless, or malicious conduct by the
state official or employee, the attorney general has discretion whether to
defend that person and the state will not legally be required to indemnify
him or her if those allegations are proven, meaning that any monetary relief
sought by the plaintiff would not necessarily subject the state to liability.
See, e.g., David v. Bureau, Docket No. CV-XX-XXXXXXX-S, 2008 WL 4249406,
*3 (Conn. Super. August 25, 2008); Flanagan v. Blumenthal, Docket No. 00-
7307, 2000 WL 1508874, *1 (2d Cir. October 12, 2000) (§ 5-141d grants attorney
general broad discretion to deny representation ‘‘if providing it would be
‘inappropriate’ ’’). Moreover, the fourth criterion of the Spring test, which
is stated in the disjunctive, looks not only to whether a judgment against
the defendant would ‘‘subject [the state] to liability’’ but also to whether a
judgment would ‘‘operate to control the activities of the state . . . .’’ Spring
v. Constantino, supra, 168 Conn. 568. This latter portion of the fourth
criterion, if applied with too broad a brush, has the potential, like the third
criterion, to render it established in almost every case. See, e.g., Cimmino
v. Marcoccia, supra, 149 Conn. App. 360 (holding that ‘‘[a]ny [monetary]
judgment against the defendants would impact the manner in which state
officials conduct investigations’’ initiated by state child advocate and attor-
ney general). We nevertheless leave a more detailed discussion of the fourth
criterion for another day. See footnote 20 of this opinion.
23
The state argues that, even if we determine that the court improperly
granted the motion to dismiss on sovereign immunity grounds, we may
affirm the trial court’s decision to dismiss the action on the alternative
theory, raised in the motion to dismiss but not decided by the trial court,
that the action is barred by statutory immunity because the plaintiff failed
to allege sufficient facts to demonstrate that the defendants’ actions were
‘‘wanton, reckless or malicious.’’ For the following reasons, we decline to
exercise our discretion to consider the alternative ground advanced by
the state.
Practice Book § 63-4 (a) (1) (A) provides in relevant part that, ‘‘[i]f any
appellee wishes to . . . present for review alternative grounds upon which
the judgment may be affirmed . . . that appellee shall file a preliminary
statement of issues within twenty days from the filing of the appellant’s
preliminary statement of the issues.’’ Certainly, ‘‘[t]his court is not precluded
. . . from reviewing an [alternative] ground that was not raised in accor-
dance with [our rules of practice] so long as the appellant will not be
prejudiced by consideration of that ground for affirmance.’’ (Emphasis
added; internal quotation marks omitted.) State v. Martin M., 143 Conn.
App. 140, 151, 70 A.3d 135, cert. denied, 309 Conn. 919, 70 A.3d 41 (2013).
Nonetheless, we also may decline to do so under certain circumstances.
See, e.g., Vertex, Inc. v. Waterbury, 278 Conn. 557, 563 n.7, 898 A.2d 178
(2006). In the present case, the defendants never filed a preliminary state-
ment of issues raising statutory immunity as a potential alternative ground
for affirmance. The defendants also failed to identify or brief statutory
immunity as an alternative ground for affirmance in their appellees’ brief,
which would have alerted the plaintiff to that issue and provided him with
an opportunity to address the defendants’ arguments in a reply brief. The
defendants raised the issue of statutory immunity as an alternative ground
for affirmance for the first time during oral argument following the granting
of reargument. Although the plaintiff—and not the defendants—addressed
statutory immunity in the simultaneous supplemental briefs ordered by this
court on reargument, he had no real notice or opportunity to respond to
the arguments raised by the defendants, which were advanced for the first
time at oral argument. Under these unique circumstances, and given that
the trial court never had an opportunity to rule on the issue of statutory
immunity, we decline to do so for the first time on appeal.
24
Because we reverse the court’s decision granting the motion to dismiss,
we need not address the plaintiff’s additional claim that, in granting the
motion to dismiss, the court considered facts outside the complaint, namely,
the Connecticut State Police Administration and Operations Manual.