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DOCKET NO. (X06) UWY-CV21-5028294-S
NANCY BURTON : SUPERIOR COURT
Plaintiff :
: COMPLEX LITIGATION
v. : DOCKET
: AT WATERBURY
DAVID PHILIP MASON, Et Al. :
Defendants : JUNE 22, 2021
MOTION TO DISMISS
Defendants, State of Connecticut Department of Agriculture (“Department”), Bryan P.
Hurlburt, Commissioner of Agriculture (“Commissioner”), and Charles DellaRocco, State
Animal Control Officer, pursuant to Practice Book § 10-30(a), files the present Motion to
Dismiss. Plaintiff, Nancy Burton’s, cause of action is barred by the doctrine of sovereign
immunity. Said defenses are jurisdictional in nature and this action must be dismissed as to the
above referenced Defendants. Pursuant to Practice Book § 10-33, said claim of lack of subject
matter jurisdiction cannot be waived and may be raised at any time.
DEFENDANTS
STATE OF CONNECTICUT
DEPARTMENT OF AGRICULTURE
BRYAN P. HURLBURT, COMMISSIONER OF
AGRICULTURE
CHARLES DELLAROCCO, STATE ANIMAL
CONTROL OFFICER
WILLIAM TONG
ATTORNEY GENERAL
BY: ___434270_____________________________
Jonathan E. Harding
Assistant Attorney General
Juris No. 434270
165 Capitol Ave.
Hartford, CT 06106
ORDER
The foregoing Motion to Dismiss is hereby Ordered: GRANTED / DENIED.
BY THE COURT:
_______________________
Judge/Clerk
CERTIFICATION
I hereby certify that a copy of the forgoing Motion to Dismiss and Accompanying
Memorandum in Support were delivered electronically to the following counsel and self-
represented parties June 22, 2021:
Nancy Burton
154 Highland Ave.
Rowayton, CT 06853
NancyBurtonCT@aol.com
Robert Scott Hillson, Esq.
53 State Street
Boston, MA 02109
rhillson@rubinrudman.com
Philip T. Newbury, Jr., Esq.
Howd & Ludorf, LLC
65 Wethersfield Avenue
Hartford, CT 06114
pnewbury@hl-law.com
Steve Stafstrom, Esq.
Pullman & Comley, LLC
850 Main Street, P.O. Box 7006
Bridgeport, CT 06601
sstafstrom@pullcom.com
James N. Tallberg, Esq.
Kimberly A. Bosse, Esq.
Karsten & Tallberg, LLC
500 Enterprise Dr., Suite 4B
Rocky Hill, CT 06067
jtallberg@kt-lawfirm.com
kbosse@kt-lawfirm.com
____434270_________________________
Jonathan E. Harding
Commissioner of the Superior Court
DOCKET NO. (X06) UWY-CV21-5028294-S
NANCY BURTON : SUPERIOR COURT
Plaintiff :
: COMPLEX LITIGATION
v. : DOCKET
: AT WATERBURY
DAVID PHILIP MASON, Et Al. :
Defendants : JUNE 22, 2021
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
Defendants, State of Connecticut Department of Agriculture (“Department”), Bryan P.
Hurlburt, Commissioner of Agriculture (“Commissioner”), and Charles DellaRocco, State
Animal Control Officer (referred to collectively as “State Defendants”), pursuant to Practice
Book § 10-30(c), files this memorandum of law in support of its Motion to Dismiss Plaintiff’s,
Nancy Burton (“Defendant”), complaint in this action as it relates to them. Plaintiff’s, cause of
action is barred by the doctrine of sovereign immunity. Said defenses are jurisdictional in nature
and this action must be dismissed as to the above referenced Defendants for lack of subject
matter jurisdiction. This Memorandum in Support of Motion to Dismiss is supported by the
accompanying Affidavit of Chief State Animal Control Officer Jeremiah Dunn. (Exhibit A).
FACTS
The Redding Police Department has received numerous complaints related to a herd of
goats living on Plaintiff’s property and roaming the neighborhood. The Department of
Agriculture has also received a number of complaints about the condition of the goats on
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Plaintiff’s property and the lack of care they were being given. As a result of a motor vehicle
accident involving one of Plaintiff’s roaming goats in April of 2020, Plaintiff was arrested for
criminal animal cruelty. On October 7, 2020, the Department of Agriculture, State Animal
Control unit received a complaint about injured and/or neglected goats on Plaintiff’s property.
After a months-long investigation, including a multiday surveillance operation, Officer
DellaRocco, in consultation with the Chief State Animal Control Officer, determined there was
probable cause to believe the crime of animal cruelty was being committed, as defined in Conn.
Gen. Stat. § 53-247. On March 9, 2021, Judge Robert A. D’Andrea approved a search and
seizure warrant application sought by Officer DellaRocco. (Exhibit B). Pursuant to Conn. Gen.
Stat. § 22-329a(b), the Department of Agriculture, State Animal Control Unit, with the assistance
of the Redding Police Department, executed the search and seizure warrant on March 10, 2021.
The execution of the search and seizure warrant resulted in the discovery of dozens of
dead goats scattered across Plaintiff’s property in tote bins, garbage bags and wooden boxes. A
recently deceased goat was found in one of the barns; partially eaten by rodents. A number of
goats were observed to be underweight and malnourished. Many goats had untrimmed hooves
that were excessively long and impacted the mobility of the animals. Some goats were limping
and at least one goat was unable to walk on its own. Sixty-five goats were seized pursuant to the
execution of the search and seizure warrant.
The Department of Agriculture, acting through its Chief State Animal Control Officer,
filed a verified petition seeking permanent custody and ownership over the sixty-five goats.
After two days of evidentiary hearing, Judge Susan Cobb entered a temporary order of custody to
the State of Connecticut Department of Agriculture. (Exhibit C). In entering the temporary
order, the Court made findings of fact that the Plaintiff neglected and treated her goats cruelly in
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a number of ways. The Court found that Plaintiff failed to provide her goats adequate shelter,
food, water and hoof trimming, among other things. State ex rel. Dunn v. Sixty-Five Goats,
Docket No. CV216139702S, 2021 Conn. Super. LEXIS 483, at *2 (Super. Apr. 9, 2021). That
civil action is ongoing in the Hartford Superior court. (State of Connecticut, ex rel, Jeremiah
Dunn, Chief State Animal Control Officer v. Sixty-Five Goats and Nancy Burton, HHD-CV21-
6139702-S.) Subsequent to the search and seizure, Plaintiff has also been charged with sixty-
five counts of criminal animal cruelty related to the treatment of the goats on her property. That
criminal matter is also pending.
On April 21, 2021, Plaintiff filed the present action against a number of parties under
various theories. Plaintiff brings this suit against the Department of Agriculture, and against its
Commissioner and a State Animal Control Officer in their official capacities. Plaintiff’s
Complaint is riddled with conclusory allegations, misrepresentations, and deceptive recitations of
fact. Upon information and belief, the present action is retaliatory in nature and is intended to
seek retribution rather than relief for any legitimate claims.
STANDARD
Pursuant to Practice Book § 10-30(a), a motion to dismiss can be used to assert a court’s
lack of jurisdiction over the subject matter of a cause of action. Pursuant to Practice Book § 10-
33 a claim of lack of subject jurisdiction cannot be waived and may be raised at any time. "A
motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the
plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the
court." Columbia Air Services v. Dept. of Transportation, 293 Conn. 342, 346 (2009). “The
doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for
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granting a motion to dismiss.” Housatonic Railroad Co. v. Commissioner of Revenue Services,
301 Conn. 268, 274, 21 A.3d 759 (2011), quoting C. R. Klewin Northeast, LLC v. State, 299
Conn. 167, 174-75 (2010). If the doctrine of sovereign immunity applies, the matter must be
dismissed as the court is without jurisdiction. Id. at 347. An assertion of sovereign immunity is
jurisdictional and must be addressed by the court. Markley v. Dept. of Public Utility Control, 301
Conn. 56, 64 n.9 (2011) ("the doctrine of sovereign immunity implicates subject matter
jurisdiction . . . and accordingly, we must address it.") The Supreme Court set forth four criteria
to determine 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. Eaddy v. Dept. of Children & Families, Docket No.
HDCV106013363S, 2012 Conn. Super. LEXIS 2965, at *3-4 (Super. Dec. 4, 2012), citing Miller
v. Egan, 265 Conn 301, 265 (2003).
ARGUMENT
The present action should be dismissed as it is barred by the doctrine of sovereign
immunity and the Court lacks subject matter jurisdiction as to Plaintiff’s claims against these
specific defendants. “The principle that the state cannot be sued without its consent, or
sovereign immunity, is well established under our case law [. . .] It has deep roots in this state
and our legal system in general, finding its origin in ancient common law [. . .] Not only have
we recognized the state's immunity as an entity, but we have also recognized that because the
state can act only through its officer and agents, a suit against a state officer concerning a matter
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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." (Internal quotation marks
omitted.) Columbia Air Services, 293 Conn. at 349, quoting DaimlerChrysler Corp. v. Law, 284
Conn. 701, 711 (2007). Sovereign immunity clearly applies to the Department, Commissioner
Hurlburt and Officer DellaRocco. The Commissioner of Agriculture and Officer DellaRocco
have been sued in their official capacity and for alleged acts while representing the State
Department of Agriculture. “[S]ince the state can act only through its officers and agents a suit
against a state officer is in effect one against the sovereign state.” Horton v. Meskill, 172 Conn.
615, 623 (1977). The doctrine of sovereign immunity creates a strong presumption in favor of
the State’s immunity from suit. Envirotest Systems Corp. v. Comm'r of Motor Vehicles, 293
Conn. 382, 387-88 (2009).
There are only three recognized exceptions to the doctrine of sovereign immunity.
Exceptions to the application of the doctrine of sovereign immunity are when (1) the legislature,
expressly or through necessary implication, statutorily waives the state’s sovereign immunity, (2)
an action seeks declaratory or injunctive relief on the basis of a substantial claims that the state
or its officers have violated the plaintiff’s constitutional rights and, (3) when the action seeks
declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct on the
part of the state or its officer to promote an illegal purpose in excess of the officer’s statutory
authority. Columbia Air Services, 293 Conn. at 349. For a claim made pursuant to the second
exception, complaining of unconstitutional acts, it is required that the allegations of such a
complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion
upon constitutionally protected interests.” Id. at 350. Under the third exception Plaintiff “must
do more than allege that the defendants' conduct was in excess of their statutory authority; they
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also must allege or otherwise establish facts that reasonably support those allegations.” Id. “In
the absence of a proper factual basis in the complaint to support the applicability of these
exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper.” Id.
Plaintiff’s complaint alleges twelve counts that may involve the State Defendants. 1
Plaintiff cites no statutory waiver of sovereign immunity for any of these counts. Additionally,
none of Plaintiff’s counts invoke either the second or third exceptions to the application of
sovereign immunity. Therefore, the doctrine of sovereign immunity bars Plaintiff’s cause of
action as to the State defendants and this matter must be dismissed as to them.
I. COUNT ONE: CRUELTY TO ANIMALS
Plaintiff’s first count alleges a claim against the Connecticut Department of Agriculture,
Bryan P. Hurlburt, the Commissioner of Agriculture, and Charles DellaRocco, State Animal
Control Officer, for acts of animal cruelty. 2 While absurd on its face, given that the Hartford
Superior Court has already ruled that Plaintiff “neglected the goats and treated them cruelly in a
number of ways,” this claim also fails to allege facts that would invoke any exception to the
application of the doctrine of sovereign immunity. State ex rel. Dunn v. Sixty-Five Goats,
Docket No. CV216139702S, 2021 Conn. Super. LEXIS 483, at *2 (Super. Apr. 9, 2021).
Plaintiff fails to allege facts that would invoke the second exception to sovereign
immunity. “The allegations of such a complaint and the factual underpinnings if placed in issue,
must clearly demonstrate an incursion upon constitutionally protected interests.” Barde v. Board
1
Plaintiff’s three complaints fail to identify with specificity which defendants are being addressed in each count.
State Defendants have addressed any counts that may be applicable. Because the operative complaint has not yet
been identified, State Defendants shall address all twelve potentially applicable counts.
2
Plaintiff also fails to point to any legal authority for a private cause of action for animal cruelty.
As a result,
Plaintiff has also failed to state a claim for which relief can be granted.
6
of Trustees, 207 Conn. 59, 64 (1988). Plaintiff has not articulated a constitutionally protected
interest that would be furthered by her count for animal cruelty. If Plaintiff was permitted to
litigate her claim of animal cruelty against the State it would not advance any constitutional
interest because this count does not allege any constitutional injury to her but rather a
constitutional injury to third-party non-human animals. In order to qualify as a constitutionally
protected liberty the interest should be one that is assured either by statute, judicial decree, or
regulation. See, Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., Docket No.
LLICV175009822S, 2017 Conn. Super. LEXIS 5181, at *12 (Super. Dec. 26, 2017) (finding a
writ of habeas corpus for three elephants was wholly frivolous on its face). Plaintiff has no
statutory authority to assert a private cause of action for cruelty to animals on behalf of her goats.
There is no constitutionally protected interest.
Plaintiff also fails to meet the standard for the third exception to sovereign immunity.
“This exception permits a plaintiff to seek declaratory or injunctive relief based on a substantial
claim that a state official has acted in excess of his statutory authority and has therefore violated
a right of the plaintiff.” Columbia Air Services v. Dept. of Transportation, 293 Conn. 342, 354
(2009). Plaintiff’s complaint fails to allege that the State Defendants acted in excess of their
statutory authority or for any illegal purpose. In fact, Plaintiff concedes that State Defendants
seized the neglected and cruelly treated goats from her property pursuant to a lawfully executed
search and seizure warrant. Comp. ¶¶ 51-55, 58. The goats are receiving rehabilitation at the
Large Animal Rehabilitation Center (“the Center”) in Niantic, CT. Plaintiff does not allege that
the rehabilitation of the animals at the Center is in excess of the State Defendant’s statutory
authority. To the contrary, neglected and cruelty treated livestock are routinely relocated to the
7
Center, by the Department and its officers, in order to protect and rehabilitate them. Lastly, and
most importantly, Plaintiff has failed to show that her rights have been violated in this count.
II. COUNT THREE: INVASION OF PRIVACY
Plaintiff’s third count is against “some or all” defendants for invading Plaintiff’s right to
privacy. While Plaintiff uses the claim of invasion of privacy to raise the specter of a protected
interest, she fails to “clearly demonstrate an incursion upon constitutionally protected interests.”
Barde v. Board of Trustees, 207 Conn. 59, 64 (1988). Plaintiff alleges that Officer DellaRocco
conducted surveillance of her property to observe her “engaging in goat chores.” Comp. ¶ 50.
Said surveillance was conducted on an adjacent property, with the permission of the landowner,
and observed Plaintiff and the animals while they were in plain view. Plaintiff has not alleged
any facts that implicate an unlawful incursion into her right to privacy. Since 1982, our courts
have recognized a right of action for invasion of privacy. “The four categories of invasion of
privacy are set forth in 3 Restatement (Second), Torts § 652A as follows: (a) unreasonable
intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c)
unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places
the other in a false light before the public. Indeed, these four categories have been adopted by a
number of courts that have recognized the privacy right of action.” Goodrich v. Waterbury
Republican-American, Inc., 188 Conn. 107, 128 (1982). Notably, invasion of privacy claims are
not based upon a constitutional guarantee, but rather sound in tort. Id., 127-28; see also Davidson
v. Bridgeport, 180 Conn. App. 18, 29-30 (2018). While Plaintiff’s complaint does not articulate
what theory of invasion she alleges, it would appear that, as to State Defendants, she believes the
State Defendants engaged in an unreasonable intrusion upon the seclusion of another. To be
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liable for intrusion into seclusion, the defendants must invade the privacy of the plaintiff in such
a way that the intrusion would be highly offensive to a reasonable person. Fiorillo v. Berkley
Administrators, Docket No. CV010458400S, 2004 Conn. Super. LEXIS 1210, at *7 (Super. May
5, 2004) (internal quotations omitted.) There is no intrusion into seclusion where the matters
observed are those exhibited to the public gaze. Id. at *8. A reasonable person would not find it
highly offensive to be observed while walking in their front yard, in plain view, while “engaging
in goat chores.” Comp. ¶ 50. Because Plaintiff has not alleged facts sufficient to support a claim
of invasion of privacy, she cannot “clearly demonstrate an incursion upon constitutionally
protected interests.” Barde v. Board of Trustees, 207 Conn. 59, 64 (1988)
Furthermore, Plaintiff has not alleged that State Defendants engaged in wrongful conduct
in furtherance of an illegal purpose in excess of their statutory authority. “The commissioner,
the Chief Animal Control Officer, [and] any animal control officer […] may interfere to prevent
any act of cruelty upon any dog or other animal.” Conn. Gen. Stat. § 22-329. State Defendants
conducted a surveillance operation, sought a search and seizure warrant and seized the animals
pursuant to their statutory duties to protect the goats from Plaintiff’s neglectful and/or cruel
treatment. “The Chief Animal Control Officer, any animal control officer or any municipal or
regional animal control officer may take physical custody of any animal upon issuance of a
warrant finding probable cause that such animal is neglected or is cruelly treated.” Conn. Gen.
Stat. § 22-329a(b). Plaintiff concedes that the seizure of her goats was pursuant to a search and
seizure warrant that was approved by a judge of the Superior Court. Comp. ¶ 54. Plaintiff fails
to allege facts that support an application of the third exception to the doctrine of sovereign
immunity. Plaintiff fails to demonstrate that State Defendants acted wrongfully, for an illegal
purpose or in excess of their statutory authority.
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III. COUNT FOUR: HARASSMENT
Plaintiff’s Fourth Count is against “some or all” defendants for “harassment against
plaintiff.” Comp. ¶¶ 72, 73. Plaintiff, again, fails to allege any facts that meet the second or
third exceptions to the doctrine of qualified immunity. The State of Connecticut "does not
recognize a private cause of action for harassment.” M&T Bank, National Assn. v. Richey,
Docket No. TTDCV205013623S, 2021 Conn. Super. LEXIS 252, at *5 (Super. Mar. 15, 2021),
citing Crossen v. Diehl, Docket No. TDCV185011328S, 2019 Conn. Super. LEXIS 617, at *7
(Super. Apr. 8, 2019). Because Plaintiff has not alleged a cognizable civil action for harassment,
she cannot “clearly demonstrate an incursion upon constitutionally protected interests.” Barde v.
Board of Trustees, 207 Conn. 59, 64 (1988). For the same reason, because there is no legally
cognizable cause of action for harassment, Plaintiff cannot show that said conduct was
“wrongful” or in furtherance of an “illegal purpose.” Plaintiff has not alleged facts, in support of
her count for harassment, that invoke either the second or third exception to the application of
sovereign immunity. Plaintiff has not alleged that State Defendants engaged in wrongful
conduct to promote an illegal purpose in excess of their statutory authority.
IV. COUNT FIVE: ELDER ABUSE
Plaintiff’s Fifth Count is against “some or all” defendants for subjecting her to “elder
abuse” as that term is “defined in the Connecticut General Statutes.” 3 Comp. ¶ 77. Plaintiff,
again, fails to allege any facts that meet the second or third exceptions to the doctrine of
sovereign immunity. There is no legally cognizable cause of action for elder abuse in the State
of Connecticut. In Kaplan v. Welch, the court considered a claim of elder abuse that was alleged
3
Plaintiff fails to identify what statutes contain the definition of elder abuse that she references.
This count is
completely unsupported by any statutory authority despite Plaintiff’s reference to the Connecticut General Statutes.
10
to be pursuant to Conn. Gen. Stat. § 17b-450 et seq. Kaplan v. Welch, Docket No.
CV186082134, CV186085475, 2020 Conn. Super. LEXIS 287, at *45 (Super. Feb. 13, 2020).
The court described this claim as “the litigational equivalent of a Hail Mary pass in football.” Id.
Conn. Gen. Stat. § 17b-450 et seq. does not create a new cause of action. Maye v. Maye, Docket
No. MMX-CV-15-6013040, 2015 Conn. Super. LEXIS 4748, at *6 (Super. Apr. 2, 2015).
Plaintiff cites to no legal theory or statutory authority to support this count and the only
existing caselaw on this issue does not recognize a private cause of action for elder abuse.
Because Plaintiff has not alleged a cognizable civil action for elder abuse, she cannot “clearly
demonstrate an incursion upon constitutionally protected interests.” Barde, 207 Conn. at 64. For
the same reason, Plaintiff has failed to raise a substantial allegation of “wrongful conduct” on the
part of the state or its officer to promote an “illegal purpose.” Plaintiff cannot meet the standard
for the second or third exception to the application of sovereign immunity in her count for elder
abuse. Plaintiff has not alleged that State Defendants engaged in wrongful conduct to promote
an illegal purpose in excess of their statutory authority.
V. COUNT SIX: ILLEGAL SEARCH AND SEIZURE
Plaintiff’s Sixth Count is for illegal search and seizure related to the execution of a search
and seizure warrant that resulted in the seizure of sixty-five of Plaintiff’s goats on March 10,
2021. Comp. ¶¶ 81-85. This count is also barred by sovereign immunity. Plaintiff has failed to
allege facts that invoke any recognized exception to the doctrine of sovereign immunity.
Plaintiff has not alleged a substantial claim that the State Defendants violated her
constitutional rights. State Defendants executed a lawfully obtained search and seizure warrant.
Any suggestion that State Defendants obtained the search and seizure warrant illegally is belied
11
by the findings of the Superior Court in the State’s civil animal seizure case. In the
Memorandum of Decision, Judge Cobb expressly made findings of fact that substantiated the
basis for the warrant. State ex rel. Dunn v. Sixty-Five Goats, Docket No. CV216139702S, 2021
Conn. Super. LEXIS 483, at *2-4 (Super. Apr. 9, 2021). Specifically, Judge Cobb found that
Plaintiff neglected and cruelly treated her goats in a number of ways, including the failure to
provide them with hoof trimming, failure to provide them adequate shelter, allowing their fur to
become caked with manure, failure to provide adequate food and water, allowing the property to
become riddled with dead and decaying goats and allowing at least goat to die without proper
care resulting in an inhumane death. Id. While Plaintiff continues to ignore the merits and
substance of that pending cause of action, the findings of that Court completely undermine her
continued insistence that the warrant executed on March 10, 2021 was in some way
unsubstantiated. The warrant was applied for after an extensive surveillance operation that
resulted in first-hand accounts of animal neglect/cruelty. Despite Plaintiff’s allegation that the
warrant was obtained fraudulently and based on “willful misinformation,” she points to no facts
to support this claim. Furthermore, the failure to acknowledge the findings of Judge Cobb, that
substantiate the basis for the warrant, is tantamount to a flagrant misrepresentation by omission.
Because the warrant was validly obtained and substantiated by the Superior Court, Plaintiff
cannot show a substantial claim of a violation of constitutional rights.
Plaintiff also has failed to allege facts that support the third exception to the application
of the doctrine of sovereign immunity. Plaintiff has failed to raise a substantial allegation of
wrongful conduct on the part of a state officer to promote an illegal purpose in excess of said
officer's statutory authority. The search and seizure warrant was approved by Judge Robert A.
D’Andrea on March 9, 2021. It was executed on March 10, 2021 by State Animal Control
12
Officers of the Department of Agriculture with the support of the Redding Police Department.
Nothing about the execution of the warrant was wrongful and to promote an illegal purpose in
excess of any officer’s statutory authority. “The commissioner, the Chief Animal Control
Officer, any animal control officer, any municipal animal control officer or any law enforcement
officer may interfere to prevent any act of cruelty upon any dog or other animal.” Conn. Gen.
Stat. §22-329. “The Chief Animal Control Officer, any animal control officer or any municipal
or regional animal control officer may take physical custody of any animal upon issuance of a
warrant finding probable cause that such animal is neglected or is cruelly treated.” Conn. Gen.
Stat. § 22-329a(b). Plaintiff concedes that the seizure of her goats was pursuant to a search and
seizure warrant that was approved by a judge of the Superior Court. Comp. ¶ 54. State
Defendants were plainly carrying out their statutorily authorized duty to prevent animal cruelty.
Their actions were critical to prevent animal cruelty and the necessity of the seizure of Plaintiff’s
goats was thoroughly substantiated by Judge Cobb’s ruling. State ex rel. Dunn v. Sixty-Five
Goats, Docket No. CV216139702S, 2021 Conn. Super. LEXIS 483, at *5 (Super. Apr. 9, 2021)
(“The court, therefore, determines that the State has met its burden to establish reasonable cause
to find that the animals' condition and the circumstances surrounding their care by the defendant
require that temporary care and custody continue to be assumed by the State to safeguard the
goats' welfare.”) “The doctrine of sovereign immunity protects state officials and employees
from lawsuits resulting from the performance of their duty.” Hultman v. Blumenthal, 67 Conn.
App. 613, 620, cert. denied, 259 Conn. 929 (2002). Plaintiff has not alleged facts that invoke the
third exception to the doctrine of sovereign immunity in her claim for illegal search and seizure.
Plaintiff’s conclusory statements that the warrant was “legally impermissible,” or “fraught with
fraud” are insufficient to avoid the application of the doctrine.
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VI. COUNT SEVEN: 42 U.S. CODE §1983
Plaintiff’s Seventh Count is also barred by sovereign immunity. Relying on 42 U.S.C. §
1983, Plaintiff’s Seventh Count alleges that “some or all” defendants have acted under color of
state law to deprive Plaintiff of her rights and protections guaranteed by the United States
Constitution. 42 U.S.C. § 1983 provides that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to
be subjected, any citizen of the United States of other person
within the jurisdiction thereof to be deprived 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.
42 U.S.C. § 1983. When sovereign immunity is claimed as a defense to a cause of action
pursuant to § 1983, federal sovereign immunity jurisprudence preempts analysis under state law.
Sullins v. Rodriguez, 281 Conn. 128, 133 (2007).
Federal sovereign immunity jurisprudence makes clear that “neither a State nor its
officials acting in their official capacities are “persons" under § 1983.” Will v. Michigan Dept. of
State Police, 491 U.S. 58, 71 (1989). “Obviously, state officials literally are persons. But a suit
against a state official in his or her official capacity is not a suit against the official but rather is a
suit against the official's office. As such, it is no different from a suit against the State itself.”
Id., citing Brandon v. Holt, 469 U.S. 464, 471 (1985). For example, “[i]f a § 1983 suit against a
state official in his or her official capacity seeks money damages, the state is deemed to be the
real party in interest because an award of damages would be paid from the state treasury.”
Mercer v. Schriro, 337 F. Sup. 3d 109, 136 (D. Conn. 2018).
Plaintiff’s § 1983 claim also does not invoke any exception to the application of
sovereign immunity because she has failed to allege specific facts to support this claim.
14
Plaintiff’s conclusory allegations that State Defendants have acted “illegally” or fraudulently”
are insufficient. “[S]tate procedural requirements, of which fact pleading is one; see Practice
Book § 10-1; generally apply to § 1983 claims brought in state court.” Sullins v. Rodriguez, 281
Conn. 128, 147, 913 A.2d 415 (2007). Thus, Plaintiff is still required to allege with specificity
what rights, privileges and immunities, secured by the Constitution, she has been deprived of
under the color of law. Plaintiff’s Complaint falls short of the pleading requirements to invoke
any exception to sovereign immunity in this count. As noted above, in reference to Count Six,
Plaintiff has failed to allege facts that establish she was subjected to an illegal search or seizure.
As to Plaintiff’s allegations of violations First Amendment guarantees, the Complaint is devoid
of any facts that, if believed, demonstrate that State Defendants violated any First Amendment
guarantees. As to due process, the seizure of Plaintiff’s goats was pursuant to a valid warrant
and ownership over the goats is presently being litigated as intended by statute. Any allegation
of due process violations is simply without merit as there is ongoing activity in an appropriate
forum to determine the fate of the goats.
VII. COUNT NINE: INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS
Plaintiff’s Ninth Count alleges that defendants intended to and did inflict severe
emotional distress upon her. Comp. ¶¶ 94-95. Said claim is barred by the doctrine of sovereign
immunity. Plaintiff’s Ninth Count, in her Second Amended Complaint, seeks only
“compensatory and punitive damages” and is plainly barred by the doctrine of sovereign
immunity as it does not seek declaratory or injunctive relief and alleges no legislative waiver of
15
the doctrine for the purpose of seeking damages. 4 “[O]n a claim for money damages, regardless
of whether the plaintiffs have alleged that state officers acted in excess of statutory authority, the
plaintiffs must seek a waiver from the claims commissioner before bringing an action against the
state in the Superior Court.” Miller v. Egan, 265 Conn. 301, 318 (2003). Also, Plaintiff fails to
allege any facts that meet the second or third exceptions to the doctrine of sovereign immunity.
“The allegations of such a complaint and the factual underpinnings if placed in issue,
must clearly demonstrate an incursion upon constitutionally protected interests.” Barde, 207
Conn. at 64. Plaintiff’s conclusory statements do not specifically demonstrate an incursion upon
a constitutionally protected interest. As noted above, Plaintiff’s claim of invasion of privacy and
illegal search and seizure are wholly without merit. Plaintiff’s complaint does not articulate how
her claim for intentional infliction of emotional distress demonstrates an incursion upon
constitutionally protected interests. Moreover, intentional infliction of emotional distress sounds
in common-law tort, not on the basis of any constitutional interest. Appleton v. Board of
Education, 254 Conn. 205, 210-11 (2000).
Plaintiff also fails to allege facts that meet the third exception to sovereign immunity.
“For a claim under the third exception, the plaintiffs must do more than allege that the
defendants' conduct was in excess of their statutory authority; they also must allege or otherwise
establish facts that reasonably support those allegations.” Electrical Contractors, Inc. v. Dept. of
Education, 303 Conn. 402, 460, 35 A.3d 188 (2012). As noted above, State Defendants were
acting in furtherance of animal welfare and not for any wrongful or illegal purpose. Said actions
4
Plaintiff has filed three separate complaints.
It is not clear which complaint will be the operative complaint and
State Defendants will address exceptions to the doctrine of sovereign immunity in the event that the Second
Amended Complaint is not the operative complaint.
16
were justified by Judge Cobb’s findings and Plaintiff has not specifically alleged any wrongful
conduct or illegal purpose.
Furthermore, Plaintiff has not alleged any statutory authority that State Defendant’s acted
in excess of. Without setting forth the statutory authority that State Defendants acted under, it is
impossible for any court to determine if the complaint alleges sufficient facts to demonstrate that
State Defendants acted in excess of their authority. See Eaddy, 2012 Conn. Super. LEXIS 2965,
at *6 (finding claim of IIED against Dept. of Children and Families, its Commissioner and a
social worker were claims in an official capacity and barred by the doctrine of sovereign
immunity).
VIII. COUNT TEN: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Plaintiff’s Tenth Count for negligent infliction of emotional distress is plainly barred by
the doctrine of sovereign immunity. Said count only seeks “compensatory and punitive
damages.” Because Plaintiff does not seek declaratory or injunctive relief and identifies no
legislative waiver of sovereign immunity, no exception to the doctrine of sovereign immunity
applies. Miller, 265 Conn. at 318. Should Plaintiff attempt to amend her complaint and file a
third amended complaint, said count would still not meet any of the exceptions to the doctrine of
sovereign immunity as addre
Preview
DOCKET NO. (X06) UWY-CV21-5028294-S NANCY BURTON : SUPERIOR COURT Plaintiff : : COMPLEX LITIGATION v. : DOCKET : AT WATERBURY DAVID PHILIP MASON, Et Al. : Defendants : JUNE 22, 2021 MOTION TO DISMISS Defendants, State of Connecticut Department of Agriculture (“Department”), Bryan P. Hurlburt, Commissioner of Agriculture (“Commissioner”), and Charles DellaRocco, State Animal Control Officer, pursuant to Practice Book § 10-30(a), files the present Motion to Dismiss. Plaintiff, Nancy Burton’s, cause of action is barred by the doctrine of sovereign immunity. Said defenses are jurisdictional in nature and this action must be dismissed as to the above referenced Defendants. Pursuant to Practice Book § 10-33, said claim of lack of subject matter jurisdiction cannot be waived and may be raised at any time. DEFENDANTS STATE OF CONNECTICUT DEPARTMENT OF AGRICULTURE BRYAN P. HURLBURT, COMMISSIONER OF AGRICULTURE CHARLES DELLAROCCO, STATE ANIMAL CONTROL OFFICER WILLIAM TONG ATTORNEY GENERAL BY: ___434270_____________________________ Jonathan E. Harding Assistant Attorney General Juris No. 434270 165 Capitol Ave. Hartford, CT 06106 ORDER The foregoing Motion to Dismiss is hereby Ordered: GRANTED / DENIED. BY THE COURT: _______________________ Judge/Clerk CERTIFICATION I hereby certify that a copy of the forgoing Motion to Dismiss and Accompanying Memorandum in Support were delivered electronically to the following counsel and self- represented parties June 22, 2021: Nancy Burton 154 Highland Ave. Rowayton, CT 06853 NancyBurtonCT@aol.com Robert Scott Hillson, Esq. 53 State Street Boston, MA 02109 rhillson@rubinrudman.com Philip T. Newbury, Jr., Esq. Howd & Ludorf, LLC 65 Wethersfield Avenue Hartford, CT 06114 pnewbury@hl-law.com Steve Stafstrom, Esq. Pullman & Comley, LLC 850 Main Street, P.O. Box 7006 Bridgeport, CT 06601 sstafstrom@pullcom.com James N. Tallberg, Esq. Kimberly A. Bosse, Esq. Karsten & Tallberg, LLC 500 Enterprise Dr., Suite 4B Rocky Hill, CT 06067 jtallberg@kt-lawfirm.com kbosse@kt-lawfirm.com ____434270_________________________ Jonathan E. Harding Commissioner of the Superior Court DOCKET NO. (X06) UWY-CV21-5028294-S NANCY BURTON : SUPERIOR COURT Plaintiff : : COMPLEX LITIGATION v. : DOCKET : AT WATERBURY DAVID PHILIP MASON, Et Al. : Defendants : JUNE 22, 2021 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Defendants, State of Connecticut Department of Agriculture (“Department”), Bryan P. Hurlburt, Commissioner of Agriculture (“Commissioner”), and Charles DellaRocco, State Animal Control Officer (referred to collectively as “State Defendants”), pursuant to Practice Book § 10-30(c), files this memorandum of law in support of its Motion to Dismiss Plaintiff’s, Nancy Burton (“Defendant”), complaint in this action as it relates to them. Plaintiff’s, cause of action is barred by the doctrine of sovereign immunity. Said defenses are jurisdictional in nature and this action must be dismissed as to the above referenced Defendants for lack of subject matter jurisdiction. This Memorandum in Support of Motion to Dismiss is supported by the accompanying Affidavit of Chief State Animal Control Officer Jeremiah Dunn. (Exhibit A). FACTS The Redding Police Department has received numerous complaints related to a herd of goats living on Plaintiff’s property and roaming the neighborhood. The Department of Agriculture has also received a number of complaints about the condition of the goats on 1 Plaintiff’s property and the lack of care they were being given. As a result of a motor vehicle accident involving one of Plaintiff’s roaming goats in April of 2020, Plaintiff was arrested for criminal animal cruelty. On October 7, 2020, the Department of Agriculture, State Animal Control unit received a complaint about injured and/or neglected goats on Plaintiff’s property. After a months-long investigation, including a multiday surveillance operation, Officer DellaRocco, in consultation with the Chief State Animal Control Officer, determined there was probable cause to believe the crime of animal cruelty was being committed, as defined in Conn. Gen. Stat. § 53-247. On March 9, 2021, Judge Robert A. D’Andrea approved a search and seizure warrant application sought by Officer DellaRocco. (Exhibit B). Pursuant to Conn. Gen. Stat. § 22-329a(b), the Department of Agriculture, State Animal Control Unit, with the assistance of the Redding Police Department, executed the search and seizure warrant on March 10, 2021. The execution of the search and seizure warrant resulted in the discovery of dozens of dead goats scattered across Plaintiff’s property in tote bins, garbage bags and wooden boxes. A recently deceased goat was found in one of the barns; partially eaten by rodents. A number of goats were observed to be underweight and malnourished. Many goats had untrimmed hooves that were excessively long and impacted the mobility of the animals. Some goats were limping and at least one goat was unable to walk on its own. Sixty-five goats were seized pursuant to the execution of the search and seizure warrant. The Department of Agriculture, acting through its Chief State Animal Control Officer, filed a verified petition seeking permanent custody and ownership over the sixty-five goats. After two days of evidentiary hearing, Judge Susan Cobb entered a temporary order of custody to the State of Connecticut Department of Agriculture. (Exhibit C). In entering the temporary order, the Court made findings of fact that the Plaintiff neglected and treated her goats cruelly in 2 a number of ways. The Court found that Plaintiff failed to provide her goats adequate shelter, food, water and hoof trimming, among other things. State ex rel. Dunn v. Sixty-Five Goats, Docket No. CV216139702S, 2021 Conn. Super. LEXIS 483, at *2 (Super. Apr. 9, 2021). That civil action is ongoing in the Hartford Superior court. (State of Connecticut, ex rel, Jeremiah Dunn, Chief State Animal Control Officer v. Sixty-Five Goats and Nancy Burton, HHD-CV21- 6139702-S.) Subsequent to the search and seizure, Plaintiff has also been charged with sixty- five counts of criminal animal cruelty related to the treatment of the goats on her property. That criminal matter is also pending. On April 21, 2021, Plaintiff filed the present action against a number of parties under various theories. Plaintiff brings this suit against the Department of Agriculture, and against its Commissioner and a State Animal Control Officer in their official capacities. Plaintiff’s Complaint is riddled with conclusory allegations, misrepresentations, and deceptive recitations of fact. Upon information and belief, the present action is retaliatory in nature and is intended to seek retribution rather than relief for any legitimate claims. STANDARD Pursuant to Practice Book § 10-30(a), a motion to dismiss can be used to assert a court’s lack of jurisdiction over the subject matter of a cause of action. Pursuant to Practice Book § 10- 33 a claim of lack of subject jurisdiction cannot be waived and may be raised at any time. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Columbia Air Services v. Dept. of Transportation, 293 Conn. 342, 346 (2009). “The doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for 3 granting a motion to dismiss.” Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011), quoting C. R. Klewin Northeast, LLC v. State, 299 Conn. 167, 174-75 (2010). If the doctrine of sovereign immunity applies, the matter must be dismissed as the court is without jurisdiction. Id. at 347. An assertion of sovereign immunity is jurisdictional and must be addressed by the court. Markley v. Dept. of Public Utility Control, 301 Conn. 56, 64 n.9 (2011) ("the doctrine of sovereign immunity implicates subject matter jurisdiction . . . and accordingly, we must address it.") The Supreme Court set forth four criteria to determine 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. Eaddy v. Dept. of Children & Families, Docket No. HDCV106013363S, 2012 Conn. Super. LEXIS 2965, at *3-4 (Super. Dec. 4, 2012), citing Miller v. Egan, 265 Conn 301, 265 (2003). ARGUMENT The present action should be dismissed as it is barred by the doctrine of sovereign immunity and the Court lacks subject matter jurisdiction as to Plaintiff’s claims against these specific defendants. “The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law [. . .] It has deep roots in this state and our legal system in general, finding its origin in ancient common law [. . .] Not only have we recognized the state's immunity as an entity, but we have also recognized that because the state can act only through its officer and agents, a suit against a state officer concerning a matter 4 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." (Internal quotation marks omitted.) Columbia Air Services, 293 Conn. at 349, quoting DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711 (2007). Sovereign immunity clearly applies to the Department, Commissioner Hurlburt and Officer DellaRocco. The Commissioner of Agriculture and Officer DellaRocco have been sued in their official capacity and for alleged acts while representing the State Department of Agriculture. “[S]ince the state can act only through its officers and agents a suit against a state officer is in effect one against the sovereign state.” Horton v. Meskill, 172 Conn. 615, 623 (1977). The doctrine of sovereign immunity creates a strong presumption in favor of the State’s immunity from suit. Envirotest Systems Corp. v. Comm'r of Motor Vehicles, 293 Conn. 382, 387-88 (2009). There are only three recognized exceptions to the doctrine of sovereign immunity. Exceptions to the application of the doctrine of sovereign immunity are when (1) the legislature, expressly or through necessary implication, statutorily waives the state’s sovereign immunity, (2) an action seeks declaratory or injunctive relief on the basis of a substantial claims that the state or its officers have violated the plaintiff’s constitutional rights and, (3) when the action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct on the part of the state or its officer to promote an illegal purpose in excess of the officer’s statutory authority. Columbia Air Services, 293 Conn. at 349. For a claim made pursuant to the second exception, complaining of unconstitutional acts, it is required that the allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests.” Id. at 350. Under the third exception Plaintiff “must do more than allege that the defendants' conduct was in excess of their statutory authority; they 5 also must allege or otherwise establish facts that reasonably support those allegations.” Id. “In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper.” Id. Plaintiff’s complaint alleges twelve counts that may involve the State Defendants. 1 Plaintiff cites no statutory waiver of sovereign immunity for any of these counts. Additionally, none of Plaintiff’s counts invoke either the second or third exceptions to the application of sovereign immunity. Therefore, the doctrine of sovereign immunity bars Plaintiff’s cause of action as to the State defendants and this matter must be dismissed as to them. I. COUNT ONE: CRUELTY TO ANIMALS Plaintiff’s first count alleges a claim against the Connecticut Department of Agriculture, Bryan P. Hurlburt, the Commissioner of Agriculture, and Charles DellaRocco, State Animal Control Officer, for acts of animal cruelty. 2 While absurd on its face, given that the Hartford Superior Court has already ruled that Plaintiff “neglected the goats and treated them cruelly in a number of ways,” this claim also fails to allege facts that would invoke any exception to the application of the doctrine of sovereign immunity. State ex rel. Dunn v. Sixty-Five Goats, Docket No. CV216139702S, 2021 Conn. Super. LEXIS 483, at *2 (Super. Apr. 9, 2021). Plaintiff fails to allege facts that would invoke the second exception to sovereign immunity. “The allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests.” Barde v. Board 1 Plaintiff’s three complaints fail to identify with specificity which defendants are being addressed in each count. State Defendants have addressed any counts that may be applicable. Because the operative complaint has not yet been identified, State Defendants shall address all twelve potentially applicable counts. 2 Plaintiff also fails to point to any legal authority for a private cause of action for animal cruelty. As a result, Plaintiff has also failed to state a claim for which relief can be granted. 6 of Trustees, 207 Conn. 59, 64 (1988). Plaintiff has not articulated a constitutionally protected interest that would be furthered by her count for animal cruelty. If Plaintiff was permitted to litigate her claim of animal cruelty against the State it would not advance any constitutional interest because this count does not allege any constitutional injury to her but rather a constitutional injury to third-party non-human animals. In order to qualify as a constitutionally protected liberty the interest should be one that is assured either by statute, judicial decree, or regulation. See, Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., Docket No. LLICV175009822S, 2017 Conn. Super. LEXIS 5181, at *12 (Super. Dec. 26, 2017) (finding a writ of habeas corpus for three elephants was wholly frivolous on its face). Plaintiff has no statutory authority to assert a private cause of action for cruelty to animals on behalf of her goats. There is no constitutionally protected interest. Plaintiff also fails to meet the standard for the third exception to sovereign immunity. “This exception permits a plaintiff to seek declaratory or injunctive relief based on a substantial claim that a state official has acted in excess of his statutory authority and has therefore violated a right of the plaintiff.” Columbia Air Services v. Dept. of Transportation, 293 Conn. 342, 354 (2009). Plaintiff’s complaint fails to allege that the State Defendants acted in excess of their statutory authority or for any illegal purpose. In fact, Plaintiff concedes that State Defendants seized the neglected and cruelly treated goats from her property pursuant to a lawfully executed search and seizure warrant. Comp. ¶¶ 51-55, 58. The goats are receiving rehabilitation at the Large Animal Rehabilitation Center (“the Center”) in Niantic, CT. Plaintiff does not allege that the rehabilitation of the animals at the Center is in excess of the State Defendant’s statutory authority. To the contrary, neglected and cruelty treated livestock are routinely relocated to the 7 Center, by the Department and its officers, in order to protect and rehabilitate them. Lastly, and most importantly, Plaintiff has failed to show that her rights have been violated in this count. II. COUNT THREE: INVASION OF PRIVACY Plaintiff’s third count is against “some or all” defendants for invading Plaintiff’s right to privacy. While Plaintiff uses the claim of invasion of privacy to raise the specter of a protected interest, she fails to “clearly demonstrate an incursion upon constitutionally protected interests.” Barde v. Board of Trustees, 207 Conn. 59, 64 (1988). Plaintiff alleges that Officer DellaRocco conducted surveillance of her property to observe her “engaging in goat chores.” Comp. ¶ 50. Said surveillance was conducted on an adjacent property, with the permission of the landowner, and observed Plaintiff and the animals while they were in plain view. Plaintiff has not alleged any facts that implicate an unlawful incursion into her right to privacy. Since 1982, our courts have recognized a right of action for invasion of privacy. “The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public. Indeed, these four categories have been adopted by a number of courts that have recognized the privacy right of action.” Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 128 (1982). Notably, invasion of privacy claims are not based upon a constitutional guarantee, but rather sound in tort. Id., 127-28; see also Davidson v. Bridgeport, 180 Conn. App. 18, 29-30 (2018). While Plaintiff’s complaint does not articulate what theory of invasion she alleges, it would appear that, as to State Defendants, she believes the State Defendants engaged in an unreasonable intrusion upon the seclusion of another. To be 8 liable for intrusion into seclusion, the defendants must invade the privacy of the plaintiff in such a way that the intrusion would be highly offensive to a reasonable person. Fiorillo v. Berkley Administrators, Docket No. CV010458400S, 2004 Conn. Super. LEXIS 1210, at *7 (Super. May 5, 2004) (internal quotations omitted.) There is no intrusion into seclusion where the matters observed are those exhibited to the public gaze. Id. at *8. A reasonable person would not find it highly offensive to be observed while walking in their front yard, in plain view, while “engaging in goat chores.” Comp. ¶ 50. Because Plaintiff has not alleged facts sufficient to support a claim of invasion of privacy, she cannot “clearly demonstrate an incursion upon constitutionally protected interests.” Barde v. Board of Trustees, 207 Conn. 59, 64 (1988) Furthermore, Plaintiff has not alleged that State Defendants engaged in wrongful conduct in furtherance of an illegal purpose in excess of their statutory authority. “The commissioner, the Chief Animal Control Officer, [and] any animal control officer […] may interfere to prevent any act of cruelty upon any dog or other animal.” Conn. Gen. Stat. § 22-329. State Defendants conducted a surveillance operation, sought a search and seizure warrant and seized the animals pursuant to their statutory duties to protect the goats from Plaintiff’s neglectful and/or cruel treatment. “The Chief Animal Control Officer, any animal control officer or any municipal or regional animal control officer may take physical custody of any animal upon issuance of a warrant finding probable cause that such animal is neglected or is cruelly treated.” Conn. Gen. Stat. § 22-329a(b). Plaintiff concedes that the seizure of her goats was pursuant to a search and seizure warrant that was approved by a judge of the Superior Court. Comp. ¶ 54. Plaintiff fails to allege facts that support an application of the third exception to the doctrine of sovereign immunity. Plaintiff fails to demonstrate that State Defendants acted wrongfully, for an illegal purpose or in excess of their statutory authority. 9 III. COUNT FOUR: HARASSMENT Plaintiff’s Fourth Count is against “some or all” defendants for “harassment against plaintiff.” Comp. ¶¶ 72, 73. Plaintiff, again, fails to allege any facts that meet the second or third exceptions to the doctrine of qualified immunity. The State of Connecticut "does not recognize a private cause of action for harassment.” M&T Bank, National Assn. v. Richey, Docket No. TTDCV205013623S, 2021 Conn. Super. LEXIS 252, at *5 (Super. Mar. 15, 2021), citing Crossen v. Diehl, Docket No. TDCV185011328S, 2019 Conn. Super. LEXIS 617, at *7 (Super. Apr. 8, 2019). Because Plaintiff has not alleged a cognizable civil action for harassment, she cannot “clearly demonstrate an incursion upon constitutionally protected interests.” Barde v. Board of Trustees, 207 Conn. 59, 64 (1988). For the same reason, because there is no legally cognizable cause of action for harassment, Plaintiff cannot show that said conduct was “wrongful” or in furtherance of an “illegal purpose.” Plaintiff has not alleged facts, in support of her count for harassment, that invoke either the second or third exception to the application of sovereign immunity. Plaintiff has not alleged that State Defendants engaged in wrongful conduct to promote an illegal purpose in excess of their statutory authority. IV. COUNT FIVE: ELDER ABUSE Plaintiff’s Fifth Count is against “some or all” defendants for subjecting her to “elder abuse” as that term is “defined in the Connecticut General Statutes.” 3 Comp. ¶ 77. Plaintiff, again, fails to allege any facts that meet the second or third exceptions to the doctrine of sovereign immunity. There is no legally cognizable cause of action for elder abuse in the State of Connecticut. In Kaplan v. Welch, the court considered a claim of elder abuse that was alleged 3 Plaintiff fails to identify what statutes contain the definition of elder abuse that she references. This count is completely unsupported by any statutory authority despite Plaintiff’s reference to the Connecticut General Statutes. 10 to be pursuant to Conn. Gen. Stat. § 17b-450 et seq. Kaplan v. Welch, Docket No. CV186082134, CV186085475, 2020 Conn. Super. LEXIS 287, at *45 (Super. Feb. 13, 2020). The court described this claim as “the litigational equivalent of a Hail Mary pass in football.” Id. Conn. Gen. Stat. § 17b-450 et seq. does not create a new cause of action. Maye v. Maye, Docket No. MMX-CV-15-6013040, 2015 Conn. Super. LEXIS 4748, at *6 (Super. Apr. 2, 2015). Plaintiff cites to no legal theory or statutory authority to support this count and the only existing caselaw on this issue does not recognize a private cause of action for elder abuse. Because Plaintiff has not alleged a cognizable civil action for elder abuse, she cannot “clearly demonstrate an incursion upon constitutionally protected interests.” Barde, 207 Conn. at 64. For the same reason, Plaintiff has failed to raise a substantial allegation of “wrongful conduct” on the part of the state or its officer to promote an “illegal purpose.” Plaintiff cannot meet the standard for the second or third exception to the application of sovereign immunity in her count for elder abuse. Plaintiff has not alleged that State Defendants engaged in wrongful conduct to promote an illegal purpose in excess of their statutory authority. V. COUNT SIX: ILLEGAL SEARCH AND SEIZURE Plaintiff’s Sixth Count is for illegal search and seizure related to the execution of a search and seizure warrant that resulted in the seizure of sixty-five of Plaintiff’s goats on March 10, 2021. Comp. ¶¶ 81-85. This count is also barred by sovereign immunity. Plaintiff has failed to allege facts that invoke any recognized exception to the doctrine of sovereign immunity. Plaintiff has not alleged a substantial claim that the State Defendants violated her constitutional rights. State Defendants executed a lawfully obtained search and seizure warrant. Any suggestion that State Defendants obtained the search and seizure warrant illegally is belied 11 by the findings of the Superior Court in the State’s civil animal seizure case. In the Memorandum of Decision, Judge Cobb expressly made findings of fact that substantiated the basis for the warrant. State ex rel. Dunn v. Sixty-Five Goats, Docket No. CV216139702S, 2021 Conn. Super. LEXIS 483, at *2-4 (Super. Apr. 9, 2021). Specifically, Judge Cobb found that Plaintiff neglected and cruelly treated her goats in a number of ways, including the failure to provide them with hoof trimming, failure to provide them adequate shelter, allowing their fur to become caked with manure, failure to provide adequate food and water, allowing the property to become riddled with dead and decaying goats and allowing at least goat to die without proper care resulting in an inhumane death. Id. While Plaintiff continues to ignore the merits and substance of that pending cause of action, the findings of that Court completely undermine her continued insistence that the warrant executed on March 10, 2021 was in some way unsubstantiated. The warrant was applied for after an extensive surveillance operation that resulted in first-hand accounts of animal neglect/cruelty. Despite Plaintiff’s allegation that the warrant was obtained fraudulently and based on “willful misinformation,” she points to no facts to support this claim. Furthermore, the failure to acknowledge the findings of Judge Cobb, that substantiate the basis for the warrant, is tantamount to a flagrant misrepresentation by omission. Because the warrant was validly obtained and substantiated by the Superior Court, Plaintiff cannot show a substantial claim of a violation of constitutional rights. Plaintiff also has failed to allege facts that support the third exception to the application of the doctrine of sovereign immunity. Plaintiff has failed to raise a substantial allegation of wrongful conduct on the part of a state officer to promote an illegal purpose in excess of said officer's statutory authority. The search and seizure warrant was approved by Judge Robert A. D’Andrea on March 9, 2021. It was executed on March 10, 2021 by State Animal Control 12 Officers of the Department of Agriculture with the support of the Redding Police Department. Nothing about the execution of the warrant was wrongful and to promote an illegal purpose in excess of any officer’s statutory authority. “The commissioner, the Chief Animal Control Officer, any animal control officer, any municipal animal control officer or any law enforcement officer may interfere to prevent any act of cruelty upon any dog or other animal.” Conn. Gen. Stat. §22-329. “The Chief Animal Control Officer, any animal control officer or any municipal or regional animal control officer may take physical custody of any animal upon issuance of a warrant finding probable cause that such animal is neglected or is cruelly treated.” Conn. Gen. Stat. § 22-329a(b). Plaintiff concedes that the seizure of her goats was pursuant to a search and seizure warrant that was approved by a judge of the Superior Court. Comp. ¶ 54. State Defendants were plainly carrying out their statutorily authorized duty to prevent animal cruelty. Their actions were critical to prevent animal cruelty and the necessity of the seizure of Plaintiff’s goats was thoroughly substantiated by Judge Cobb’s ruling. State ex rel. Dunn v. Sixty-Five Goats, Docket No. CV216139702S, 2021 Conn. Super. LEXIS 483, at *5 (Super. Apr. 9, 2021) (“The court, therefore, determines that the State has met its burden to establish reasonable cause to find that the animals' condition and the circumstances surrounding their care by the defendant require that temporary care and custody continue to be assumed by the State to safeguard the goats' welfare.”) “The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty.” Hultman v. Blumenthal, 67 Conn. App. 613, 620, cert. denied, 259 Conn. 929 (2002). Plaintiff has not alleged facts that invoke the third exception to the doctrine of sovereign immunity in her claim for illegal search and seizure. Plaintiff’s conclusory statements that the warrant was “legally impermissible,” or “fraught with fraud” are insufficient to avoid the application of the doctrine. 13 VI. COUNT SEVEN: 42 U.S. CODE §1983 Plaintiff’s Seventh Count is also barred by sovereign immunity. Relying on 42 U.S.C. § 1983, Plaintiff’s Seventh Count alleges that “some or all” defendants have acted under color of state law to deprive Plaintiff of her rights and protections guaranteed by the United States Constitution. 42 U.S.C. § 1983 provides that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States of other person within the jurisdiction thereof to be deprived 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. 42 U.S.C. § 1983. When sovereign immunity is claimed as a defense to a cause of action pursuant to § 1983, federal sovereign immunity jurisprudence preempts analysis under state law. Sullins v. Rodriguez, 281 Conn. 128, 133 (2007). Federal sovereign immunity jurisprudence makes clear that “neither a State nor its officials acting in their official capacities are “persons" under § 1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). “Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.” Id., citing Brandon v. Holt, 469 U.S. 464, 471 (1985). For example, “[i]f a § 1983 suit against a state official in his or her official capacity seeks money damages, the state is deemed to be the real party in interest because an award of damages would be paid from the state treasury.” Mercer v. Schriro, 337 F. Sup. 3d 109, 136 (D. Conn. 2018). Plaintiff’s § 1983 claim also does not invoke any exception to the application of sovereign immunity because she has failed to allege specific facts to support this claim. 14 Plaintiff’s conclusory allegations that State Defendants have acted “illegally” or fraudulently” are insufficient. “[S]tate procedural requirements, of which fact pleading is one; see Practice Book § 10-1; generally apply to § 1983 claims brought in state court.” Sullins v. Rodriguez, 281 Conn. 128, 147, 913 A.2d 415 (2007). Thus, Plaintiff is still required to allege with specificity what rights, privileges and immunities, secured by the Constitution, she has been deprived of under the color of law. Plaintiff’s Complaint falls short of the pleading requirements to invoke any exception to sovereign immunity in this count. As noted above, in reference to Count Six, Plaintiff has failed to allege facts that establish she was subjected to an illegal search or seizure. As to Plaintiff’s allegations of violations First Amendment guarantees, the Complaint is devoid of any facts that, if believed, demonstrate that State Defendants violated any First Amendment guarantees. As to due process, the seizure of Plaintiff’s goats was pursuant to a valid warrant and ownership over the goats is presently being litigated as intended by statute. Any allegation of due process violations is simply without merit as there is ongoing activity in an appropriate forum to determine the fate of the goats. VII. COUNT NINE: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Plaintiff’s Ninth Count alleges that defendants intended to and did inflict severe emotional distress upon her. Comp. ¶¶ 94-95. Said claim is barred by the doctrine of sovereign immunity. Plaintiff’s Ninth Count, in her Second Amended Complaint, seeks only “compensatory and punitive damages” and is plainly barred by the doctrine of sovereign immunity as it does not seek declaratory or injunctive relief and alleges no legislative waiver of 15 the doctrine for the purpose of seeking damages. 4 “[O]n a claim for money damages, regardless of whether the plaintiffs have alleged that state officers acted in excess of statutory authority, the plaintiffs must seek a waiver from the claims commissioner before bringing an action against the state in the Superior Court.” Miller v. Egan, 265 Conn. 301, 318 (2003). Also, Plaintiff fails to allege any facts that meet the second or third exceptions to the doctrine of sovereign immunity. “The allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests.” Barde, 207 Conn. at 64. Plaintiff’s conclusory statements do not specifically demonstrate an incursion upon a constitutionally protected interest. As noted above, Plaintiff’s claim of invasion of privacy and illegal search and seizure are wholly without merit. Plaintiff’s complaint does not articulate how her claim for intentional infliction of emotional distress demonstrates an incursion upon constitutionally protected interests. Moreover, intentional infliction of emotional distress sounds in common-law tort, not on the basis of any constitutional interest. Appleton v. Board of Education, 254 Conn. 205, 210-11 (2000). Plaintiff also fails to allege facts that meet the third exception to sovereign immunity. “For a claim under the third exception, the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations.” Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 460, 35 A.3d 188 (2012). As noted above, State Defendants were acting in furtherance of animal welfare and not for any wrongful or illegal purpose. Said actions 4 Plaintiff has filed three separate complaints. It is not clear which complaint will be the operative complaint and State Defendants will address exceptions to the doctrine of sovereign immunity in the event that the Second Amended Complaint is not the operative complaint. 16 were justified by Judge Cobb’s findings and Plaintiff has not specifically alleged any wrongful conduct or illegal purpose. Furthermore, Plaintiff has not alleged any statutory authority that State Defendant’s acted in excess of. Without setting forth the statutory authority that State Defendants acted under, it is impossible for any court to determine if the complaint alleges sufficient facts to demonstrate that State Defendants acted in excess of their authority. See Eaddy, 2012 Conn. Super. LEXIS 2965, at *6 (finding claim of IIED against Dept. of Children and Families, its Commissioner and a social worker were claims in an official capacity and barred by the doctrine of sovereign immunity). VIII. COUNT TEN: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS Plaintiff’s Tenth Count for negligent infliction of emotional distress is plainly barred by the doctrine of sovereign immunity. Said count only seeks “compensatory and punitive damages.” Because Plaintiff does not seek declaratory or injunctive relief and identifies no legislative waiver of sovereign immunity, no exception to the doctrine of sovereign immunity applies. Miller, 265 Conn. at 318. Should Plaintiff attempt to amend her complaint and file a third amended complaint, said count would still not meet any of the exceptions to the doctrine of sovereign immunity as addre