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DOC. NO.: X06-UWY-CV-21-5028294-S_: SUPERIOR COURT
NANCY BURTON : JUDICIAL DISTRICT OF WATERBURY
v. : COMPLEX LITIGATION DOCKET
DAVID PHILIP MASON, ETAL. : JULY 22, 2022
MEMORANDUM OF DECISION RE MOTION TO STRIKE #309
On April 21, 2021, the plaintiff, Nancy Burton, filed this action against numerous
defendants, including the state of Connecticut’s Department of Agriculture (department), Bryan
Hurlburt and Charles DellaRocco (collectively, the defendants).! In the operative pleading, the
fifth amended complaint filed on April 12, 2022,? the plaintiff alleges the following relevant
facts. The plaintiff has resided on property located at 147 Cross Highway in Redding for thirty-
five years, Throughout her lifetime, the plaintiff has become involved in numerous
environmental causes including the anti-nuclear power movement. In furtherance of this
objective, the plaintiff has adopted many goats and began testing their milk in order to ascertain
1 Currently, the other named defendants in this case are: (1) David Philip Mason; (2) Elinore
Carmody; (3) Dennis Gibbon; (4) Julia Pemberton, the first selectwoman for the town of
Redding; (5) the town of Redding; (6) Mark O’Donnell, the town of Redding’s chief of police;
(7) the town of Redding’s Building Department; (8) the town of Redding’s Health Department
and (9) the town of Redding’s Police Department. As none of these defendants are parties to the
motion that is currently before the court, they will not be included in any reference to “the
defendants.” Moreover, for the sake of brevity, the factual allegations discussed in this decision
will only focus on the wrongful conduct allegedly committed by the defendants that are subject
to the motion to strike that is presently before the court. The defendants will also be referred to
collectively as “the defendants” and separately by their names when appropriate.
2 When it was originally filed, the present motion to strike was directed to the plaintiff’s fourth
amended complaint. The counts alleged against the defendants in that iteration of the complaint
were counts seven and eight. On April 13, 2022, by agreement of the parties, this court granted
the plaintiff permission to file her fifth amended complaint. As the fifth amended complaint is
now considered operative, the court will refer to the numbering of the counts as set forth in that
version of the complaint.their radioactivity. By the spring of 2020, the plaintiff began experiencing problems with
various neighbors who allegedly harassed her and complained about the presence of the goats on
her property. For example, on April 30, 2021, some of the plaintiff’s goats walked onto the
property of the plaintiff’s neighbor, co-defendant David Philip Mason. In response, Mason
utilized an air-horn to scare the goats and they “panicked . . . into [an] uncontrolled stampede as
he chased them in a wild frenzy galloping onto the road as if to escape a wild predator and back
onto [the] plaintiff’s property.”
The plaintiff delivered a complaint alleging animal cruelty and harassment regarding this
incident to Hurlburt, the department’s commissioner, on December 2, 2020. DellaRocco, an
animal control officer employed by the department, was assigned to investigate the incident. On
December 17, 2020, the plaintiff’s complaint was deemed “unfounded” and dismissed by the
department’s staff. When the plaintiff later followed up in May, 2021, in an attempt to reopen
the investigation, the department responded that the investigation was closed.
On February 3, 2021, DellaRocco began a four-day surveillance operation of the
plaintiff’s property. This effort culminated with DellaRocco and another department employee
swearing out an affidavit requesting a search warrant to search the plaintiff’s property and seize
all of her goats due to animal cruelty. The plaintiff alleges, inter alia, that this warrant “was
replete with knowingly false statements, expressions of misogyny [and] reliance on statements of
others who possess malicious motives and lack credibility ....” The search warrant was signed
by the court, D ‘Andrea, J., on March 9, 2021. The following day, March 10, 2021, DellaRocco
took part in an unannounced search-and-seizure operation with Redding police officers that
resulted in the removal of sixty-five goats along with various items of personal property from the
plaintiff's residence. According to the allegations of the plaintiff’s complaint, the defendantsconducted the search and seizure “without proper and legal cause based on a search and seizure
warrant fraudulently secured by... DellaRocco.” The defendants participated in this operation
even though they knew that the plaintiff had made arrangements to transfer her goats to other
locations and the “plaintiff’s goats were in good health, were well-nourished, had access to
plentiful clean water, were appropriately sheltered, had access to spacious exercise and grazing
areas, received veterinary care when and where appropriate and were loved and well cared for by
[the] plaintiff...” The goats were then moved to a large animal facility in Niantic where the
plaintiff alleges they have been subjected to various “acts of wilful and deliberate abuse and
cruelty to animals,” including the death of at least one pregnant goat.
Thereafter, on April 9, 2021, the court, Cobb, J., entered a temporary order placing the
plaintiff’s goats in the state’s custody in the case of Dunn v. Sixty-Five Goats, Superior Court,
judicial district of Hartford, Docket No, CV-21-6139702-S. DellaRocco testified against the
plaintiff’s interests in that case. According to the plaintiff, these “underlying proceedings
constitute an elaborate and reprehensible ruse by [the] defendants... to harm and humiliate [the]
plaintiff, cause her crushing heartbreak and despair, divert her from her important public-interest
endeavors, subject her to great and unnecessary expense, by which [the] plaintiff’s goats have
been made to suffer cruelty, abuse, brutality and other perverse practices by the [s]tate of
Connecticut and its agents... .”
The plaintiff brings two causes of action against the defendants. In count four, the
plaintiff alleges violations of 42 U.S.C. § 1983 (§ 1983). Specifically, in count four, the plaintiff
alleges that the defendants acted under the color of state law to deprive her of her rights and
3 The Dunn v. Sixty-Five Goats case was later transferred to this court’s Complex Litigation
Docket and it currently has the docket number X06-UWY-CV-21-6064254-S.
3protections under the United States constitution. The plaintiff explicitly references her rights to
due process and guarantees under the first and fourth amendment. In count five, the plaintiff
alleges a cause of action sounding in false arrest.
On February 25, 2022, the defendants filed a motion to strike both of the counts alleged
against them and a memorandum of law in support of their motion. The plaintiff filed her
memorandum of law in opposition on March 28, 2022. On April 8, 2022, the defendants filed
their reply memorandum.‘ The court heard oral argument on the motion to strike and the
objection thereto on June 22, 2022. .
“The purpose of a motion to strike is to contest. . . the legal sufficiency of the allegations
of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation
marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188
(2003). “The role of the trial court in ruling on a motion to strike is to examine the [complaint],
construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally
sufficient cause of action.” (Internal quotation marks omitted.) Coe v. Board of Education, 301
Conn. 112, 117, 19 A.3d 640 (2011). “If any facts provable under the express and implied
allegations in the plaintiffs complaint support a cause of action . . . the complaint is not
vulnerable to a motion to strike.” Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1
(1991). Nevertheless, “[a] motion to strike admits all facts well pleaded; it does not admit legal
conclusions or the truth or accuracy of opinions stated in the pleadings.” (Emphasis in original;
4 The defendants’ reply memorandum attaches a copy of the March 9, 2021 search warrant for
the plaintiff’s property signed by Judge D’Andrea. This document will not be examined by the
court when adjudicating this motion to strike because of the familiar rule “that a motion to strike
must be considered within the confines of the pleadings and not external documents.... [A
court is] limited . . . to a consideration of the facts alleged in the complaint.” (Internal quotation
marks omitted.) Zirinsky v. Zirinsky, 87 Conn. App. 257, 268-69 n.9, 865 A.2d 488, cert. denied,
273 Conn. 916, 871 A.2d 372 (2005).internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588,
693 A.2d 293 (1997). “A motion to strike is properly granted if the complaint alleges mere
conclusions of law that are unsupported by the facts alleged.” (Internal quotation marks
omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
COUNT FOUR: § 1983
As apreliminary matter, the court notes that in its October 12, 2021 memorandum of
decision, it already dismissed the plaintiff’s § 1983 cause of action against the department. In
that decision, the court noted that “‘[a] state, as an entity having immunity under the eleventh
amendment to the United States constitution, is not a “person” within the meaning of § 1983 and
thus is not subject to suit under § 1983 in either federal court or state court.’ (Internal quotation
marks omitted.) Miller v. Egan, 265 Conn. 301, 311, 828 A.2d 549 (2003). ‘For suits against
states or their agencies, [t]his jurisdictional bar applies regardless of the nature of the relief
sought.... This bar exists whether the relief sought is legal or equitable.’ (Citations omitted;
internal quotation marks omitted.) Lee v. Dept. of Children & Families, 939 F. Supp. 2d 160,
165 (D. Conn. 2013). Therefore, ‘[a] suit generally may not be maintained directly against the
State itself, or against any agency or department of the State, unless the State has waived
sovereign immunity.’ Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 102 S.
Ct. 3304, 73 L. Ed. 2d 1057 (1982). The state of Connecticut has not waived its sovereign
immunity with respect to a § 1983 cause of action. Morneau v. State, 150 Conn. App. 237, 251-
54, 90 A.3d 1003, cert. denied, 312 Conn. 926, 95 A.3d 522 (2014). Given that the department
is a state agency, the plaintiff cannot maintain a § 1983 claim against it. Therefore, [the § 1983
count] is dismissed as to the department.” Id.It is well accepted law in Connecticut that a plaintiff cannot simply replead a count that
has been dismissed. As noted by the Appellate Court, “the distinction between the motion to
dismiss and the motion to strike is not merely semantic. Whereas the granting of a motion to
dismiss terminates an action save for the right to appeal the dismissal, the granting of a motion to
strike affords a party the right to amend any deficiency by repleading.” Godbout v. Attanasio,
199 Conn. App. 88, 109, 234 A.3d 1031 (2020). Given that the court previously dismissed the
plaintiff's § 1983 count as to the department, that cause of action is no longer properly in the
case. On that basis, the court need only analyze the legal viability of count four as to Hurlburt
and DellaRocco.
Hurlburt and DellaRocco both move to strike count four on the ground that the plaintiff
fails to allege any facts for which relief could be granted. Specifically, Hurlburt and DellaRocco
assert that the plaintiff does not allege sufficient facts to support a claim for constitutional injury
under either the first, fourth or fourteenth amendment to the United States constitution.
Essentially, Hurlburt and DellaRocco contend that the plaintiff must both plead and make a
specific factual showing, at the motion to strike stage, that her constitutional rights have been
violated. With respect to the plaintiff’s § 1983 claim predicated on the fourth amendment,
Hurlburt and DellaRocco specifically note that the court must presume the legal validity of a
signed search warrant. Additionally, Hurlburt asserts that § 1983 liability cannot be based on a
respondeat superior theory. In response, the plaintiff argues, inter alia, that DellaRocco violated
her constitutional rights when he participated in the drafting of an affidavit that led to an illegal
search warrant that resulted in the government improperly taking possession of her goats. With
respect to Hurlburt’s potential liability under § 1983, the plaintiff contends that her “allegationsdirected at... Hurlburt do identify his extensive, specific personal responsibility for a wide
range of alleged injury.” (Emphasis omitted.)
Section 1983 provides in relevant part that “[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress ....” “The United States Supreme Court has repeatedly
expressed that [t]o state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” (Internal quotation
marks omitted.) Tuchman v. State, 89 Conn. App. 745, 762, 878 A.2d 384, cert. denied, 275
Conn, 920, 883 A.2d 1252 (2005). “These two elements denote two separate areas of inquiry:
the plaintiff must prove a constitutional or statutory violation and that violation must have been
committed by the defendant acting under color of law.” Wilson v. Hryniewicz, 38 Conn. App.
715, 720, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995).
Both Hurlburt and DellaRocco admit that they were acting under color of law when they
engaged in the activities for which they are being sued. Therefore, the sole remaining issue for
the court to consider is whether the plaintiff adequately alleges that her constitutional rights were
violated by the remaining defendants. Importantly, however, “[t]o state a viable claim ...
against an individual defendant pursuant to § 1983, the plaintiff must allege the personal
involvement ... of that particular defendant.... [The] plaintiff must plead and prove that each
[glovernment-official defendant, through the official’s own individual actions, has violated the(cJonstitution ... .” (Citation omitted; intemal quotation marks omitted.) Wine v. Mulligan, 213
Conn. App. 298, 303, A.2d__ (2022). Consequently, the court must examine the
plaintiff’s operative complaint to determine precisely what conduct the plaintiff alleges that
Hurlburt and DellaRocco committed.
The plaintiff alleges that on March 9, 2021, DellaRocco and another department
employee presented an affidavit to Judge D’Andrea seeking a warrant to search the plaintiff’s
property and seize all of her goats. In paragraph seventy-five, which is incorporated by reference
into count four, the plaintiff alleges that this “affidavit was replete with knowingly false
statements, expressions of misogyny, reliance on statements of others who possess malicious
motives and lack credibility . .. who are known to be habitual prevaricators and dishonest by
nature and consumed by malice and evidencing ignorance of [the] plaintiff, the goats, [the]
plaintiff’s care and treatment of the goats . . . such as to render the affidavit an abuse of the
police power and defective, failing to set forth legally sufficient and accurate facts to satisfy due
process requirements for issuance of a search and seizure warrant.” Paragraph eighty-one further
alleges that agents of the department were aware that the plaintiff’s goats were in good health. If
construed in a manner most favorable to the pleader, this factual allegation could lend support to
the conclusion that DellaRocco knew that the aversions in his affidavit in support of the search
warrant were false. The plaintiff then alleges that DellaRocco personally participated in the
illegal search.
“Since Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), it has
been clearly established that a defendant’s [fJourth [a]mendment rights are violated if (1) the
affiant, in support of the warrant, includes a false statement knowingly and intentionally, or with
reckless disregard for the truth and (2) the allegedly false statement is necessary to the finding ofprobable cause.” (Internal quotation marks omitted.) Winfrey v. Rogers, 901 F.3d 483, 494 (Sth
Cir. 2018), cert. denied sub. nom, 139 S. Ct. 1549, 203 L. Ed. 2d 712 (2019). Therefore, if the
court accepts the allegations incorporated by reference into count four against DellaRocco as
true, as it must on a motion to strike, it can be seen that the plaintiff sufficiently alleges that
DellaRocco violated her clearly established constitutional rights.5 Accordingly, the court denies
the motion to strike count four as to DellaRocco.®
Incontrast, the plaintiff sets forth very few factual allegations against Hurlburt. In fact,
the plaintiff only alleges that Hurlburt specifically engaged in the following activities: (1) he
received the plaintiff’s animal cruelty complaint on December 2, 2020 and (2) he did not respond
to the plaintiff’s request that the investigation be reopened after it was closed. It is difficult for
the court to see how this limited conduct, even if construed in a manner most favorable to the
pleader, could rise to a constitutional violation. As previously noted, § 1983 liability must be
based on the personal behavior of the defendant at issue, As the plaintiff has alleged virtually no
personal conduct on the part of Hurlburt, the court grants the motion to strike count four as to
Hurlburt.
FALSE ARREST
Next, the defendants argue that count five sounding in false arrest is legally insufficient
because the “[p]laintiff has failed to offer any explanation as to how . . . Hurlburt or...
5 Nothing in this decision should be construed as the court holding that DellaRocco violated the
plaintiff’s constitutional rights. Rather, the court is basing its motion to strike decision, as it
must, solely on the allegations of the complaint. Moreover, DellaRocco is certainly not
precluded from making the same arguments that he raised in this motion to strike in subsequent
motion practice when the court can look beyond the allegations of the complaint.
6 Having made this determination, the court need not examine whether the plaintiff clearly
alleges a violation of her rights under the first or fourteenth amendment to the United States
constitution.DellaRocco physically and unlawfully imprisoned her.” According to the defendants, a false
arrest cause of action does not apply to them because they did not participate in the plaintiff's
arrest. The defendants further assert that a false arrest claim cannot be legally imputed to them
simply because they participated in the animal cruelty investigation that led to the plaintiff's
resulting arrest. In her memorandum of law in opposition, the plaintiff states that “[bly
inadvertence . . . [she] did not set forth specific claims as regards these [d]efendants in [c]ount
[five]; however, the omission is susceptible of correction in a prospective [s]ubstitute
[c]omplaint ....”
Under Connecticut law, “[fJalse arrest is the unlawful restraint by one person of the
physical liberty of another.” (Internal quotation marks omitted.) Campbell v. Porter, 212 Conn.
App. 377, 390, 275 A.3d 684 (2022). “False imprisonment is categorized as an intentional tort
for which the remedy at common law was an action for trespass. ... [I]n the case of a false
imprisonment the detention must be wholly unlawful .... To prevail on a claim of false
imprisonment, the plaintiff must prove that his physical liberty has been restrained by the
defendant and that the restraint was against his will, that is, that he did not consent to the restraint
or acquiesce in it willingly.” (Emphasis added; internal quotation marks omitted.) Nodoushani
vy. Southern Connecticut State University, 152 Conn. App. 84, 92-93, 95 A.3d 1248 (2014).
“{T}he law is clear that a cause of action for false imprisonment cannot be sustained where the
plaintiff’s arrest results from the defendants’ institution of and compliance with proper legal
authority . . ..” Lo Sacco v. Young, 20 Conn. App. 6, 21, 564 A.2d 610, cert. denied, 213 Conn.
808, 568 A.2d 793 (1989). Undersuch circumstances, “the allegations of the plaintiff's
complaint are insufficient to set up a cause of action for false imprisonment.” Id. Accordingly,
when the “defendants are alleged to have engaged in conduct that led to [the plaintiff's] arrest by
10the police . . . that is not a cognizable claim of false arrest.” Baker v. Atria Management Co.,
LLC, Superior Court, judicial district of Stamford -Norwalk, Docket No. CV-13-5014028-S
(October 10, 2013, Povodator, J.).
At best, in count five, the plaintiff alleges that the defendants engaged in improper
conduct that resulted in her illegal arrest. Such conduct does not give rise to a false arrest cause
of action. Indeed, in her memorandum of law in opposition, the plaintiff essentially admits that
this count is legally insufficient. Accordingly, the court grants the motion to strike count five.
For all of the foregoing reasons, the court grants the motion to strike count four as to
Hurlburt, but it denies the motion to strike count four as to DellaRocco. The court need not act
on the motion to strike count four with respect to the department because it has already dismissed
this count as to that defendant. The motion to strike count five is granted with respect to all of
the defendants.
BY THE COURT,
421277
Bellis, J.
11
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DOC. NO.: X06-UWY-CV-21-5028294-S_: SUPERIOR COURT NANCY BURTON : JUDICIAL DISTRICT OF WATERBURY v. : COMPLEX LITIGATION DOCKET DAVID PHILIP MASON, ETAL. : JULY 22, 2022 MEMORANDUM OF DECISION RE MOTION TO STRIKE #309 On April 21, 2021, the plaintiff, Nancy Burton, filed this action against numerous defendants, including the state of Connecticut’s Department of Agriculture (department), Bryan Hurlburt and Charles DellaRocco (collectively, the defendants).! In the operative pleading, the fifth amended complaint filed on April 12, 2022,? the plaintiff alleges the following relevant facts. The plaintiff has resided on property located at 147 Cross Highway in Redding for thirty- five years, Throughout her lifetime, the plaintiff has become involved in numerous environmental causes including the anti-nuclear power movement. In furtherance of this objective, the plaintiff has adopted many goats and began testing their milk in order to ascertain 1 Currently, the other named defendants in this case are: (1) David Philip Mason; (2) Elinore Carmody; (3) Dennis Gibbon; (4) Julia Pemberton, the first selectwoman for the town of Redding; (5) the town of Redding; (6) Mark O’Donnell, the town of Redding’s chief of police; (7) the town of Redding’s Building Department; (8) the town of Redding’s Health Department and (9) the town of Redding’s Police Department. As none of these defendants are parties to the motion that is currently before the court, they will not be included in any reference to “the defendants.” Moreover, for the sake of brevity, the factual allegations discussed in this decision will only focus on the wrongful conduct allegedly committed by the defendants that are subject to the motion to strike that is presently before the court. The defendants will also be referred to collectively as “the defendants” and separately by their names when appropriate. 2 When it was originally filed, the present motion to strike was directed to the plaintiff’s fourth amended complaint. The counts alleged against the defendants in that iteration of the complaint were counts seven and eight. On April 13, 2022, by agreement of the parties, this court granted the plaintiff permission to file her fifth amended complaint. As the fifth amended complaint is now considered operative, the court will refer to the numbering of the counts as set forth in that version of the complaint.their radioactivity. By the spring of 2020, the plaintiff began experiencing problems with various neighbors who allegedly harassed her and complained about the presence of the goats on her property. For example, on April 30, 2021, some of the plaintiff’s goats walked onto the property of the plaintiff’s neighbor, co-defendant David Philip Mason. In response, Mason utilized an air-horn to scare the goats and they “panicked . . . into [an] uncontrolled stampede as he chased them in a wild frenzy galloping onto the road as if to escape a wild predator and back onto [the] plaintiff’s property.” The plaintiff delivered a complaint alleging animal cruelty and harassment regarding this incident to Hurlburt, the department’s commissioner, on December 2, 2020. DellaRocco, an animal control officer employed by the department, was assigned to investigate the incident. On December 17, 2020, the plaintiff’s complaint was deemed “unfounded” and dismissed by the department’s staff. When the plaintiff later followed up in May, 2021, in an attempt to reopen the investigation, the department responded that the investigation was closed. On February 3, 2021, DellaRocco began a four-day surveillance operation of the plaintiff’s property. This effort culminated with DellaRocco and another department employee swearing out an affidavit requesting a search warrant to search the plaintiff’s property and seize all of her goats due to animal cruelty. The plaintiff alleges, inter alia, that this warrant “was replete with knowingly false statements, expressions of misogyny [and] reliance on statements of others who possess malicious motives and lack credibility ....” The search warrant was signed by the court, D ‘Andrea, J., on March 9, 2021. The following day, March 10, 2021, DellaRocco took part in an unannounced search-and-seizure operation with Redding police officers that resulted in the removal of sixty-five goats along with various items of personal property from the plaintiff's residence. According to the allegations of the plaintiff’s complaint, the defendantsconducted the search and seizure “without proper and legal cause based on a search and seizure warrant fraudulently secured by... DellaRocco.” The defendants participated in this operation even though they knew that the plaintiff had made arrangements to transfer her goats to other locations and the “plaintiff’s goats were in good health, were well-nourished, had access to plentiful clean water, were appropriately sheltered, had access to spacious exercise and grazing areas, received veterinary care when and where appropriate and were loved and well cared for by [the] plaintiff...” The goats were then moved to a large animal facility in Niantic where the plaintiff alleges they have been subjected to various “acts of wilful and deliberate abuse and cruelty to animals,” including the death of at least one pregnant goat. Thereafter, on April 9, 2021, the court, Cobb, J., entered a temporary order placing the plaintiff’s goats in the state’s custody in the case of Dunn v. Sixty-Five Goats, Superior Court, judicial district of Hartford, Docket No, CV-21-6139702-S. DellaRocco testified against the plaintiff’s interests in that case. According to the plaintiff, these “underlying proceedings constitute an elaborate and reprehensible ruse by [the] defendants... to harm and humiliate [the] plaintiff, cause her crushing heartbreak and despair, divert her from her important public-interest endeavors, subject her to great and unnecessary expense, by which [the] plaintiff’s goats have been made to suffer cruelty, abuse, brutality and other perverse practices by the [s]tate of Connecticut and its agents... .” The plaintiff brings two causes of action against the defendants. In count four, the plaintiff alleges violations of 42 U.S.C. § 1983 (§ 1983). Specifically, in count four, the plaintiff alleges that the defendants acted under the color of state law to deprive her of her rights and 3 The Dunn v. Sixty-Five Goats case was later transferred to this court’s Complex Litigation Docket and it currently has the docket number X06-UWY-CV-21-6064254-S. 3protections under the United States constitution. The plaintiff explicitly references her rights to due process and guarantees under the first and fourth amendment. In count five, the plaintiff alleges a cause of action sounding in false arrest. On February 25, 2022, the defendants filed a motion to strike both of the counts alleged against them and a memorandum of law in support of their motion. The plaintiff filed her memorandum of law in opposition on March 28, 2022. On April 8, 2022, the defendants filed their reply memorandum.‘ The court heard oral argument on the motion to strike and the objection thereto on June 22, 2022. . “The purpose of a motion to strike is to contest. . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). “The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.” (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). “If any facts provable under the express and implied allegations in the plaintiffs complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike.” Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Nevertheless, “[a] motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.” (Emphasis in original; 4 The defendants’ reply memorandum attaches a copy of the March 9, 2021 search warrant for the plaintiff’s property signed by Judge D’Andrea. This document will not be examined by the court when adjudicating this motion to strike because of the familiar rule “that a motion to strike must be considered within the confines of the pleadings and not external documents.... [A court is] limited . . . to a consideration of the facts alleged in the complaint.” (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn. App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). COUNT FOUR: § 1983 As apreliminary matter, the court notes that in its October 12, 2021 memorandum of decision, it already dismissed the plaintiff’s § 1983 cause of action against the department. In that decision, the court noted that “‘[a] state, as an entity having immunity under the eleventh amendment to the United States constitution, is not a “person” within the meaning of § 1983 and thus is not subject to suit under § 1983 in either federal court or state court.’ (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 311, 828 A.2d 549 (2003). ‘For suits against states or their agencies, [t]his jurisdictional bar applies regardless of the nature of the relief sought.... This bar exists whether the relief sought is legal or equitable.’ (Citations omitted; internal quotation marks omitted.) Lee v. Dept. of Children & Families, 939 F. Supp. 2d 160, 165 (D. Conn. 2013). Therefore, ‘[a] suit generally may not be maintained directly against the State itself, or against any agency or department of the State, unless the State has waived sovereign immunity.’ Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 102 S. Ct. 3304, 73 L. Ed. 2d 1057 (1982). The state of Connecticut has not waived its sovereign immunity with respect to a § 1983 cause of action. Morneau v. State, 150 Conn. App. 237, 251- 54, 90 A.3d 1003, cert. denied, 312 Conn. 926, 95 A.3d 522 (2014). Given that the department is a state agency, the plaintiff cannot maintain a § 1983 claim against it. Therefore, [the § 1983 count] is dismissed as to the department.” Id.It is well accepted law in Connecticut that a plaintiff cannot simply replead a count that has been dismissed. As noted by the Appellate Court, “the distinction between the motion to dismiss and the motion to strike is not merely semantic. Whereas the granting of a motion to dismiss terminates an action save for the right to appeal the dismissal, the granting of a motion to strike affords a party the right to amend any deficiency by repleading.” Godbout v. Attanasio, 199 Conn. App. 88, 109, 234 A.3d 1031 (2020). Given that the court previously dismissed the plaintiff's § 1983 count as to the department, that cause of action is no longer properly in the case. On that basis, the court need only analyze the legal viability of count four as to Hurlburt and DellaRocco. Hurlburt and DellaRocco both move to strike count four on the ground that the plaintiff fails to allege any facts for which relief could be granted. Specifically, Hurlburt and DellaRocco assert that the plaintiff does not allege sufficient facts to support a claim for constitutional injury under either the first, fourth or fourteenth amendment to the United States constitution. Essentially, Hurlburt and DellaRocco contend that the plaintiff must both plead and make a specific factual showing, at the motion to strike stage, that her constitutional rights have been violated. With respect to the plaintiff’s § 1983 claim predicated on the fourth amendment, Hurlburt and DellaRocco specifically note that the court must presume the legal validity of a signed search warrant. Additionally, Hurlburt asserts that § 1983 liability cannot be based on a respondeat superior theory. In response, the plaintiff argues, inter alia, that DellaRocco violated her constitutional rights when he participated in the drafting of an affidavit that led to an illegal search warrant that resulted in the government improperly taking possession of her goats. With respect to Hurlburt’s potential liability under § 1983, the plaintiff contends that her “allegationsdirected at... Hurlburt do identify his extensive, specific personal responsibility for a wide range of alleged injury.” (Emphasis omitted.) Section 1983 provides in relevant part that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....” “The United States Supreme Court has repeatedly expressed that [t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” (Internal quotation marks omitted.) Tuchman v. State, 89 Conn. App. 745, 762, 878 A.2d 384, cert. denied, 275 Conn, 920, 883 A.2d 1252 (2005). “These two elements denote two separate areas of inquiry: the plaintiff must prove a constitutional or statutory violation and that violation must have been committed by the defendant acting under color of law.” Wilson v. Hryniewicz, 38 Conn. App. 715, 720, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995). Both Hurlburt and DellaRocco admit that they were acting under color of law when they engaged in the activities for which they are being sued. Therefore, the sole remaining issue for the court to consider is whether the plaintiff adequately alleges that her constitutional rights were violated by the remaining defendants. Importantly, however, “[t]o state a viable claim ... against an individual defendant pursuant to § 1983, the plaintiff must allege the personal involvement ... of that particular defendant.... [The] plaintiff must plead and prove that each [glovernment-official defendant, through the official’s own individual actions, has violated the(cJonstitution ... .” (Citation omitted; intemal quotation marks omitted.) Wine v. Mulligan, 213 Conn. App. 298, 303, A.2d__ (2022). Consequently, the court must examine the plaintiff’s operative complaint to determine precisely what conduct the plaintiff alleges that Hurlburt and DellaRocco committed. The plaintiff alleges that on March 9, 2021, DellaRocco and another department employee presented an affidavit to Judge D’Andrea seeking a warrant to search the plaintiff’s property and seize all of her goats. In paragraph seventy-five, which is incorporated by reference into count four, the plaintiff alleges that this “affidavit was replete with knowingly false statements, expressions of misogyny, reliance on statements of others who possess malicious motives and lack credibility . .. who are known to be habitual prevaricators and dishonest by nature and consumed by malice and evidencing ignorance of [the] plaintiff, the goats, [the] plaintiff’s care and treatment of the goats . . . such as to render the affidavit an abuse of the police power and defective, failing to set forth legally sufficient and accurate facts to satisfy due process requirements for issuance of a search and seizure warrant.” Paragraph eighty-one further alleges that agents of the department were aware that the plaintiff’s goats were in good health. If construed in a manner most favorable to the pleader, this factual allegation could lend support to the conclusion that DellaRocco knew that the aversions in his affidavit in support of the search warrant were false. The plaintiff then alleges that DellaRocco personally participated in the illegal search. “Since Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), it has been clearly established that a defendant’s [fJourth [a]mendment rights are violated if (1) the affiant, in support of the warrant, includes a false statement knowingly and intentionally, or with reckless disregard for the truth and (2) the allegedly false statement is necessary to the finding ofprobable cause.” (Internal quotation marks omitted.) Winfrey v. Rogers, 901 F.3d 483, 494 (Sth Cir. 2018), cert. denied sub. nom, 139 S. Ct. 1549, 203 L. Ed. 2d 712 (2019). Therefore, if the court accepts the allegations incorporated by reference into count four against DellaRocco as true, as it must on a motion to strike, it can be seen that the plaintiff sufficiently alleges that DellaRocco violated her clearly established constitutional rights.5 Accordingly, the court denies the motion to strike count four as to DellaRocco.® Incontrast, the plaintiff sets forth very few factual allegations against Hurlburt. In fact, the plaintiff only alleges that Hurlburt specifically engaged in the following activities: (1) he received the plaintiff’s animal cruelty complaint on December 2, 2020 and (2) he did not respond to the plaintiff’s request that the investigation be reopened after it was closed. It is difficult for the court to see how this limited conduct, even if construed in a manner most favorable to the pleader, could rise to a constitutional violation. As previously noted, § 1983 liability must be based on the personal behavior of the defendant at issue, As the plaintiff has alleged virtually no personal conduct on the part of Hurlburt, the court grants the motion to strike count four as to Hurlburt. FALSE ARREST Next, the defendants argue that count five sounding in false arrest is legally insufficient because the “[p]laintiff has failed to offer any explanation as to how . . . Hurlburt or... 5 Nothing in this decision should be construed as the court holding that DellaRocco violated the plaintiff’s constitutional rights. Rather, the court is basing its motion to strike decision, as it must, solely on the allegations of the complaint. Moreover, DellaRocco is certainly not precluded from making the same arguments that he raised in this motion to strike in subsequent motion practice when the court can look beyond the allegations of the complaint. 6 Having made this determination, the court need not examine whether the plaintiff clearly alleges a violation of her rights under the first or fourteenth amendment to the United States constitution.DellaRocco physically and unlawfully imprisoned her.” According to the defendants, a false arrest cause of action does not apply to them because they did not participate in the plaintiff's arrest. The defendants further assert that a false arrest claim cannot be legally imputed to them simply because they participated in the animal cruelty investigation that led to the plaintiff's resulting arrest. In her memorandum of law in opposition, the plaintiff states that “[bly inadvertence . . . [she] did not set forth specific claims as regards these [d]efendants in [c]ount [five]; however, the omission is susceptible of correction in a prospective [s]ubstitute [c]omplaint ....” Under Connecticut law, “[fJalse arrest is the unlawful restraint by one person of the physical liberty of another.” (Internal quotation marks omitted.) Campbell v. Porter, 212 Conn. App. 377, 390, 275 A.3d 684 (2022). “False imprisonment is categorized as an intentional tort for which the remedy at common law was an action for trespass. ... [I]n the case of a false imprisonment the detention must be wholly unlawful .... To prevail on a claim of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly.” (Emphasis added; internal quotation marks omitted.) Nodoushani vy. Southern Connecticut State University, 152 Conn. App. 84, 92-93, 95 A.3d 1248 (2014). “{T}he law is clear that a cause of action for false imprisonment cannot be sustained where the plaintiff’s arrest results from the defendants’ institution of and compliance with proper legal authority . . ..” Lo Sacco v. Young, 20 Conn. App. 6, 21, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989). Undersuch circumstances, “the allegations of the plaintiff's complaint are insufficient to set up a cause of action for false imprisonment.” Id. Accordingly, when the “defendants are alleged to have engaged in conduct that led to [the plaintiff's] arrest by 10the police . . . that is not a cognizable claim of false arrest.” Baker v. Atria Management Co., LLC, Superior Court, judicial district of Stamford -Norwalk, Docket No. CV-13-5014028-S (October 10, 2013, Povodator, J.). At best, in count five, the plaintiff alleges that the defendants engaged in improper conduct that resulted in her illegal arrest. Such conduct does not give rise to a false arrest cause of action. Indeed, in her memorandum of law in opposition, the plaintiff essentially admits that this count is legally insufficient. Accordingly, the court grants the motion to strike count five. For all of the foregoing reasons, the court grants the motion to strike count four as to Hurlburt, but it denies the motion to strike count four as to DellaRocco. The court need not act on the motion to strike count four with respect to the department because it has already dismissed this count as to that defendant. The motion to strike count five is granted with respect to all of the defendants. BY THE COURT, 421277 Bellis, J. 11