Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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·i AVC Document 87 Filed
_ _ - _ = ` @359 3;03—cv-002:: . -
V. CIV. NO. 3:03C\'22l (AVC).
‘ Defendants. :' DECEMBER 29, 2005
` Submitted by:
DAVID S. GOLUB ct 00145
P.O. BOX 389
(203) 325-4491
( Attorneys for Plaintiffs
1 Plaintiffs are submitting this Consolidated Memorandum of Law pursuant to the Court’s request during
a tclephonic conference with the parties on December 16, 2005. This Memorandum of Law combines the
arguments presented in the following prior pleadings: I
( I) Plaintiffs’ Memorandum of Law in Opposition to Detnclants’ Motion to Dismiss, dated April 3.
2003 [Dkt. No. 19]; - _ ]
- (2) Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss Amended A
Complaint, dated August 8, 2003 [Dkt. N0. 46];
(3) Plaintiff`s’ Supplemental Memorandum of Law in Opposition to Defendants} Motion to Dismiss
Amended Complaint, dated August l2, 2003 [Dkt. No. 47]; and, g ,
(4) Plaintiff` s Motion to Submit New Legal Authority and Response to Del"endants’ New Authority,
dated April 8, 2005 [Dkt. No. 72]. _ _.

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injuries as impairment of reputation ..., personal humiliation, and mental anguish and `suft`ering." ld,
at 307 (internal quotations omitted). I
if plaintiffs establish that defendants unconstitutionally deprived them of their jobs,
_ compensatory damages may properly include an award to compensate plaintiffs for their lost wages
and benefits. SE egg, St. George v. Mak, 2000 WL 303249 (D. Conn. 2000) (in §_ 1983 action
against state official [High Sheriff Edwin Mak], in individual capacity, awarding lost income to
special deputy sheriffs subjected to retaliation in violation ofliirst Amendment for union organizing
activity) (attached at Exhibit D); Quartararo v. Hoy, 1 I3 F. Supp.2d 405, 418-19 (E.D.N.Y. 2000)
(plaintiff in § 1983 action against state prison officials in individual capacity cnt_itIcd to
compensatory damages for lost income resulting trom unconstitutional conduct); seg; ggg Gierlinger
v. Gleason, 160 F.3d 858, 867—68, 873-75 (2d Cir. 1998) (in § 1983 action against state troop
commander. in individual capacity, ordering prejudgment interest o11_iury’s award of $1 17,738 in
"tinancial damages for loss of past and future income"). _
Defendants argue that plaintiffs are barred. tiom recovering any award for "1·etrospective
pay" or “retroactive benefits" in any form (“‘however they may be pled") on the first ibut- Claims for
Relief. because state officials cannot be held liable (in their individual capacities) for "back pay."
(Def. Mem. at 18, gitmg Dwyer v. Regan, 777 li.2d 825. 836 (2d Cir. 1985), modtfieal 793 F.2d 457
(1986); DeLoreto v. Ment, 944 li. Supp. at 1031 11.5.)
Defendants confuse the concept of"hack pay and benefrts" —— relief that can only be ordered
against die employer with the obligation to pay salary or provide benefits;} — with a § 1983
33 “‘Bacl·: pay" is a term of art in federal employment litigation, drawn from the statutory language of
Title Vll. Se; 42 U.S.C. 2000e—5(g)(l) ("tlte court may order such affirmative action as may be appropriate,
which may include. but is not limited to, reinstatement or hiring ofemployees, with or without back pay .... or

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plaintift`s right to recovenan award of his actual economic loss as an element of compensatory
_ damages from an individual constitutional wrongdoer. As one court has observed, back pay “must
be paid by or on behalf ofthe employer by dqinirion. To say that an ‘individual capacity’
defendant is liable for ‘bacl< pay’ is a misnomer; he may be liable for compensatory damages in the
same amount (plaintiff s lost wages) ..." Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1043 n. 7
(1** Cir. 1988) (emphasis added); accord Los Angeles Police Protective League v- Gates, 995 F.2d
1469, I472 n. 1 (Q"' Cir. 1993); gg; also Skeets v. Johnson, 805 F.2d 767, 783 (S"` Cir. 1986)
(Bowman. J., dissenting) (taking note of holding in Dwver and `explaining that “the defendants could
be liable in their individual capacity for damages only, of which lost wages, or back pay, might be a
As in the common law system of tort damages. a state officer sued individually who
,.; wrongfully causes a plaintiff to lose hisjob is liable tbr the plaintiffs lost wages and the value of
any other equitable relief as the court deems appropriate"). The term is used to denote "a form of restitution,"
intended by Congress "to be awarded together with reinstatement or other forms of equitable rclief." gg Great-
West Lite & Annuity Insurance Company v. Knudsen, 534 U.S. 204, 2l8, n. 4 (2002); gg ggg Q. at 230 n. 2
(Ginsburg, J., dissenting). “Back pay" is recoverable tion: an employer in a Title Vll action as a component of
the statutory mandate that an injured plaintiff be made whole tbr his losses. Albemarle Pager Co. v. Moody, 422
U.S. 405, 42l (1975) ("In addressing the ‘make whole’ purpose ofTitle VII, Congress took. care to arm the courts
with full equitable powers"). In 1985, when Dwyer was decided, back pay in Title VII cases was often
considered form of equitable relief," and not an award of damages. S; Knudsen at 230, n. 2 (Ginsburg, J.,
dissenting). (The Dwver couit’s use ofthe phrase in "back pay" reflected that meaning of the term - a form of
restitution, often combined with reinstatement and other equitable relief] ordered by a court against an employer.
24 indeed, defendants contention that a state official cannot be held individually liable for lost wages
would produce bizarre results: if a municipal police officer used unconstitutional excessive force against a
suspect, the police officer could, ofcourse, be held personally responsible for his victim’s resulting lost wages.
O’Neil| v. Krzeminski, 839 F.2d 9, I3 (2d Cir. l993). According to defendants, if a state trooper used the same
impermissible force, and was sued in his individual capacity, he could not be held liable for suc-h damages. But
on what principled basis can this divergence bejustitied? Certainly not the Eleventh Amendment, since the law
is clearthat the Eleventh Amendment does not apply to a state otbcer sued in his individual capacity; certainly
not principles of common law causation, since in both instances thc p|aintiff’ s economic loss was caused by the
defendant ofticer’s unconstitutional use ofexccssive force.

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any lost benefits. St. George v. Mak, 2000 WL 303249 at *2 (Exhibit D attached); Quartararo v.
Qy, l I3 F. Supp.2d at 418-19;-sge _als_g Gierlinger v, Gleason, 160 F.3d at 867-68, 873-75.
Defendants otfer no basis for dismissing plaint.ifls` first four Claims against them
individually, or limiting the scope of compensatory damages, on Eleventh Amendment grounds, and _
there is none.
Plaintiftif Fifth through Tenth Claims tbr Relief assert claims for prosyyecrive injunctive
relief against defendants, in their q;j‘icial capacitieszs It has been we.Il—established for over ninety-
tive years that even though a state itself may be immune from suit under the Eleventh Amendment,
a federal court has jurisdiction over a suit against a state o‘l`I‘icer ir: his qgficial capacity to enjoin
official actions that violate federal law. Ex parte Young, 209 U.S. I23; accord Verizon Ma_ryland
v. Public Service Commission of Maryland, 535 U.S. 635.
. As the Second Circuit has explained:
The doctrine of Ex Parte Young is a limited exception to the general
principle of sovereign immunity and allows "a suit [tbr injunctive
relief] challenging the constitutionality of a state 0flicial’s action in
enforcing state Iaw" under the theory that such a suit is not "one
against the State," and therefore not barred bythe Eleventh
Amendment. _
CSX Transportation. Inc. v New York State Oftice ot`.Renl Propertv Services, 306 F.3d 87, 98 (2d
Cir. 20()2),`guoting Ex parte Young, 209 U.S. at l54. The rule of Ex parte Young applies to actions
against state officials for prospective iniunctive reliefhrought pursuant to 42 U.S.C. § l983. Quern
v. Jordan, 440 U.S. 332 (l979), including actions against a sittingGovernor. Scheuer v. Rhodes,
416 U.S. at 237. ‘
li See {li] 83, 86 ofthe Fifth Claim for Relief; ‘,]1] 82, 85 of the Sixth Claim for Relief; ‘|l 85 ofthe Seventh
and Eighth Claims for Rc|ief;1[9l ofthe Ninth Claim for Relief; and ‘ll 87 ofthe Tenth Claim for Relief