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Mercer v. Rodriquez6/8/2004
ons omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988). " t is axiomatic that this court has jurisdiction to determine whether it has jurisdiction." First National Bank of Chicago v. Luecken, 66 Conn. App. 606, 610, 785 A.2d 1148 (2001), cert. denied, 259 Conn. 915, 792 A.2d 851 (2002).
"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.... A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide.... Our Supreme Court has determined that when ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bailey v. Medical Examining Board for State Employee Disability Retirement, supra, 75 Conn. App. 219.
We are mindful that " he power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute." Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952). "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. St. John, 80 Conn. App. 767, 771, 837 A.2d 841 (2004).
Because the allegations of the complaint determine whether the court has subject matter jurisdiction, our first step is to examine the allegations of the plaintiff's amended complaint. The complaint, at first blush, is unusual in that it is styled in the federal fashion, which, by itself, is not a fatal defect. The plaintiff alleges that the court had jurisdiction to hear the action pursuant to title II of the disabilities act, 42 U.S.C. § 12131 et seq., the rehabilitation act, 29 U.S.C. § 701 et seq., and the equal protection clauses of the state and federal constitutions. A party, however, cannot confer subject matter jurisdiction merely by alleging it; see Fleet National Bank v. Nazareth, 75 Conn. App. 791, 793, 818 A.2d 69 (2003); as the allegations of the complaint are controlling. The plaintiff's jurisdictional allegations invoke the sources of the remedies he seeks.
The court dismissed the plaintiff's complaint because he had failed to exhaust the administrative remedies available pursuant to the department's grievance procedures. The court, however, did not state its factual findings underlying that conclusion in its memorandum of decision and the plaintiff failed to seek an articulation. See Practice Book § 66-5. In their motion to dismiss, the defendants addressed the plaintiff's claims as an employment issue and argued that the department did not offer employment opportunities, but rather employment programs to facilitate prisoners' re-entry into society. During argument on the motion to dismiss, the plaintiff asserted that his claims were based on his classification assignment. The court found that the plaintiff's claims were grievable without identifying the department administrative directive or other remedies the plaintiff had failed to exhaust. On appeal, the plaintiff argues that the court improperly determ
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