The plaintiff, Joseph D'Amico, appeals from the judgment rendered by the trial court after it granted the defendants' motion to strike. On appeal, the plaintiff claims that, because the allegations of his complaint are sufficient to state a cause of action under 42 U.S.C. § 1983, the trial court improperly granted the defendants' motion to strike. We affirm the judgment of the trial court.
The plaintiff, who had been convicted of a serious felony, earned the credits necessary to complete a college degree while he was in prison and was awarded a college degree. He was subsequently accepted by the University of Connecticut School of Social Work, where he received a graduate degree in 1989. Thereafter, he was employed for several years as a social worker at the Shelton Guidance Clinic and, subsequently, was in private practice. Since he was released from prison in 1984, the plaintiff has been neither arrested nor convicted of a crime.
On February 5, 1996, the plaintiff applied to the department for a clinical social worker license. The plaintiff meets the criteria for a license and his application was proper and complete. On April 29, 1996, Johnson denied the plaintiffs application, stating that "the Department is willing to consider further your eligibility for licensure in accordance with a Prelicensure Consent Order [which would] require that you, at your own expense, undergo a psychiatric evaluation by a psychiatrist mutually agreed upon by yourself and the Department [and upon] the conclusion of the evaluation
The plaintiff alleged that the conditions set forth in the consent order are not authorized by law. Although General Statutes § 19a-14 provides that the department may deny a license to an applicant convicted of a felony, the defendants did not purport to act under the authority of § 19a-14 by resorting to the consent order. The plaintiff alleges that the defendants' actions with respect to the plaintiff concerning the consent order constitute an abuse of discretion under § 19a-14 and that there are no administrative procedures to review the department's decision.
The plaintiff also alleged that the defendants deprived him of his right to equal protection
The defendants filed a motion to strike the plaintiffs one count complaint. The trial court granted the motion to strike, ruling that the complaint failed to state either a due process or equal protection cause of action under § 1983. After the trial court rendered judgment on its granting of the motion to strike, the plaintiff appealed. On appeal, the plaintiff claims that the trial court improperly granted the defendants' motion to strike because his complaint states a cause of action under
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaints... to state a claim upon which relief can be granted.... In an appeal from a judgment granting a motion to strike, we operate in accordance with well established principles.... [W]e must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency.... If the facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270-71, 709 A.2d 558 (1998). "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.... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Citations omitted; internal quotation marks omitted.) Holler v. Buckley Broadcasting Corp., 47 Conn.App. 764, 768, 706 A.2d 1379 (1998). "`Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the defendants' motions is plenary.' " Pamela B. v. Ment, 244 Conn. 296, 307, 709 A.2d 1089 (1998).
We begin by examining the allegations of the complaint to determine whether they state a cause of action under § 1983.
The plaintiff alleged that, in denying him a license, the defendants acted arbitrarily in that they did not act under the authority of § 19a-14.
Even if we assume, arguendo, that the department did waive its right to deny the plaintiff a license, the trial court correctly determined that the plaintiff has no property right or entitlement to a license to be a clinical social worker. The analytical framework to determine whether the plaintiff has a property right or
"The requirements of procedural due process are applicable only where a state deprives a person of a constitutionally protected property or liberty interest.... To possess a protectible interest in a benefit `a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.' ... This rule applies even where the loss suffered is great. `[T]o determine whether due process requirements apply in the first place, we must look not to the "weight" but to the nature of the interest at stake.' ...
"A person possesses a property interest when there are `such rules or mutually explicit understandings that support his claim to entitlement to the benefit and that he may invoke at a hearing.' ... The understandings that give rise to a property interest are generally grounded outside the Constitution, most often in state law.... Nevertheless, it is federal constitutional law that determines whether a particular property interest rises to the level of a legitimate claim of entitlement protected by the Due Process Clause." (Citations omitted; emphasis in original.) Id., 908-909.
"A constitutionally cognizable property interest is a prerequisite to the attachment of constitutional procedural and substantive due process rights. Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L. Ed. 2d 548 (1972). A substantive property interest arises
"Application of the test must focus primarily on the degree of discretion enjoyed by the issuing authority, not the estimated probability that the authority will act favorably in a particular case." Id. "The fact that the permit could have been denied on non-arbitrary grounds defeats the federal due process claim." Id. Here, the statute provides that the department may deny a license to a felon. Courts have determined that the word may conveys broad discretion. See Charry v. Hall, 709 F.2d 139, 144 (2d Cir. 1983). The plaintiff concedes that the department had the right to deny him a license because he was a convicted felon. The plaintiff was, therefore, not denied a property right or entitlement, and we need not apply the procedural due process test of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L. Ed. 2d 18 (1976).
The plaintiff next claims that the department's prelicensure consent order violates his substantive due process rights because the requested psychological
"In the context of sensitive public jobs, we have recognized the government's right to condition such employment on psychological evaluation if the employee's psychological fitness has been put in question." Harrington v. Almy, 977 F.2d 37, 43 (1st Cir. 1992). Substantive due process has been characterized as "`impos[ing] limits on what a state may do regardless of what procedural protection is provided.' Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir.), cert. denied, 502 U.S. 879, 112 S.Ct. 226, 116 L. Ed. 2d 183 (1991). To support a substantive due process claim, [the plaintiff] must establish either that the defendant's actions were sufficient to `[shock] the conscience,' id., quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L. Ed 183 (1952), or were `a violation of an identified liberty or property interest protected by the due process clause.' Id. That interest here is the familiar Fourth Amendment right to be free from unwarranted searches or seizures which is protected against state action through the due process clause of the Fourteenth Amendment." Harrington v. Almy, supra, 43.
"The evolving case law governing unwanted bodily intrusions or manipulations has weighed several relevant considerations. Once it is established that, as here, the state is entitled to the information the bodily intrusion is designed to obtain, the means used will be measured by its reasonableness in light of the need to obtain the evidence in this way. To the degree the procedure would not be considered offensive even by the most delicate and is routine, it will be less likely to involve a constitutional violation." Id., 44.
The plaintiff relies heavily on Harrington in support of his argument that a psychological evaluation is overly intrusive and a violation of his fourth and fourteenth
In the case before us, the plaintiff alleges that the department was willing to consider further his application if he agreed to undergo a psychological examination to be conducted by a psychiatrist to whom the plaintiff and the department mutually agreed. Unlike the physical invasion in Harrington, there is no allegation that the psychological evaluation will physically invade the plaintiffs body. On its face, the allegations of the plaintiffs complaint do not shock the conscience. See also Winston v. Lee, 470 U.S. 753, 759, 105 S.Ct. 1611, 84 L. Ed. 2d 662 (1985) (surgical procedure under general anesthetic to remove bullet lodged in chest of armed robbery suspect too intrusive on suspect's privacy interests in absence of compelling need for this particular method of obtaining evidence); Schmerber v. California, 384 U.S. 757, 760, 86 S.Ct. 1826, 16 L. Ed. 2d 908 (1966) (reaffirming holding of Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L. Ed. 2d 448 (1957)); Breithaupt v. Abram, supra, 352 U.S. 435-36 (use of hypodermic needle to extract blood from unconscious accident victim to test for alcohol not offensive); Rochin v. California, supra, 342 U.S. 172 (pumping suspect's stomach for evidence of illegal drugs possibly ingested shocks conscience).
The judgment is affirmed.
In this opinion the other judges concurred.
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"(6) Determine the eligibility of all applicants for ... licensure ... based upon compliance with the general statutes and administrative regulations. The department may deny the eligibility of an applicant ... for licensure ... if the department determines that the applicant:
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"(B) Has been found guilty or convicted as a result of an act which constitutes a felony under (i) the laws of this state ...
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"(10) Conduct any necessary review, inspection or investigation regarding qualifications of applicants for licenses ....
"(c) No board shall exist for the following professions which are licensed or otherwise regulated by the department of public health and addiction services: * * *
"(8) Certified independent social worker .... The department shall assume all powers and duties normally vested with a board in administering regulatory jurisdiction over said professions...." (Emphasis added.)
Public Acts 1996, No. 96-47, effective October 1, 1996, specifically authorized the department to issue a license pursuant to a consent order containing conditions that must be met by the applicant if he or she has been convicted of a felony. See General Statutes § 19a-14 (a) (6) (B).