McKinnon v. Gardner

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McKinnon v. Gardner

JAMES MCKINNON v. MR. GARDNER
CORRECTION OFFICER ET AL.
(AC 47981)
Elgo, Clark and Westbrook, Js.

Syllabus

The plaintiff appealed from the trial court’s judgment dismissing his civil
action brought against the defendants, six employees of the Department of
Correction, in both their individual and official capacities, pursuant to federal
statute (42 U.S.C. § 1983). The plaintiff claimed that the court improperly
dismissed his action for lack of personal jurisdiction. Held:

The trial court improperly granted the defendants’ motion to dismiss for
lack of personal jurisdiction, as it was undisputed that the plaintiff complied
with the service of process requirements in the relevant statutes (§§ 52-57
(a) and 52-64 (b)).

This court concluded that the doctrine of sovereign immunity deprived the
trial court of subject matter jurisdiction over the plaintiff’s claims against
the defendants in their official capacities, and, therefore, the trial court’s
dismissal of the plaintiff’s action in that regard was not improper.

This court declined to address the merits of the defendants’ alternative
ground of affirmance with respect to the doctrine of qualified immunity, as
a motion to dismiss was not the proper procedural vehicle to raise the quali-
fied immunity defense in response to claims brought pursuant to § 1983, and
the trial court did not rule on the defendants’ contention that the plaintiff’s
claims were barred by the qualified immunity defense.

Argued November 20, 2025—officially released April 28, 2026

Procedural History

Action to recover damages for alleged violations of the
plaintiff’s civil rights, and for other relief, brought to the
Superior Court in the judicial district of New London,
where the court, Spallone, J., granted the defendants’
motion to dismiss and rendered judgment thereon, from
which the plaintiff appealed to this court. Reversed in
part; further proceedings.
James McKinnon, self-represented, the appellant
(plaintiff).
McKinnon v. Gardner

Evan O’Roark, deputy solicitor general, with whom,
on the brief, was William Tong, attorney general, for
the appellees (defendants).

Opinion

ELGO, J. The self-represented plaintiff, James McKin-
non, appeals from the judgment of the trial court granting
the motion to dismiss filed by the defendants, six employ-
ees of the Department of Correction (department).1 On
appeal, the plaintiff claims that the court improperly dis-
missed his civil action for lack of personal jurisdiction. In
response, the defendants contend, as an alternate ground
of affirmance, that the dismissal of the plaintiff’s action
was proper because the plaintiff’s claims are barred by
the doctrines of sovereign and qualified immunity, which
they argue deprived the court of subject matter jurisdic-
tion. We reverse in part the judgment of the trial court.
At all relevant times, the plaintiff was an inmate at
the Corrigan Correctional Center. In April, 2023, he
commenced this action pursuant to 42 U.S.C. § 1983.
In his September 7, 2023 operative amended complaint,
the plaintiff alleged that the defendants, in both their
individual and official capacities, violated his due pro-
cess rights and his eighth amendment right to be free
from cruel and unusual punishment when moving him
to a new cell on December 30, 2021. More specifically,
he alleged that the five correctional officer defendants;
see footnote 1 of this opinion; deviated from depart-
ment policy by placing him in handcuffs and escort-
ing him to a new cell “without a supervisor being made
aware” and “without a camcorder.” The plaintiff also
alleged that the mental health worker defendant deviated
from department policy by failing to place him in mental
health housing despite his complaint that he “wasn’t
feeling well.” In addition, the plaintiff alleged that the
defendants did not conduct themselves “in a responsible
1
In his complaint, the plaintiff named as defendants five department
correctional officers, identified as “Mr. Gardner,” “Mr. Jimenez,” “Mr.
Spring,” “Mr. Nichols,” and “Mr. Speight,” and one department mental
health worker, identified as “Ms. Monica.”
McKinnon v. Gardner

respectful manner,” that the use of handcuffs “cause[d]
pain and [swelling],” and that he thereafter was unable to
“straighte[n] out [his] fingers.” In his prayer for relief,
the plaintiff requested more than $3 million in compensa-
tory damages and $120,000 in punitive damages.
The record before us indicates that the plaintiff com-
menced this action against the defendants by service of
process on April 18, 2023. The return of service pre-
pared by State Marshal Courtland Hall indicates that
Hall “made due and legal service” on all six defendants
on that date “by leaving a true and attested copy of the
original Writ, Summons, and Complaint at the office of
William Tong, Connecticut Attorney General, at least
twelve days before the session of the Court to which this
writ is returnable.” In that filing, Hall also stated that
the attorney general was “the duly authorized agent” for
the defendants. In the months that followed, no appear-
ance was filed on behalf of the defendants.2
The plaintiff thereafter filed an amended complaint,
which he served directly on the defendants.3 The record
contains a return of service prepared by Hall and dated
August 30, 2023, which was filed with the court on Sep-
tember 7, 2023. In that return of service, Hall averred
that he “left a true and attested copy” of the plaintiff’s
writ, summons, and amended complaint “with and in
the hands” of all six defendants.4
On October 27, 2023, the plaintiff filed a motion for
a default judgment due to the defendants’ failure to
2
In light of the defendants’ failure to appear, the plaintiff filed two
motions for default, on July 17 and September 18, 2023, which the
court denied.
3
At oral argument before the trial court, the plaintiff explained
that, having already served the defendants in their official capacities
in April, 2023, he served his amended complaint on the defendants in
their individual capacities in August, 2023, to ensure that they “were
served in both capacities . . . .”
4
On appeal, the defendants concede that they “waived any objection”
to the propriety of the plaintiff’s August 30, 2023 service of process
on them in their individual capacities pursuant to General Statutes §
52-57 (a). See generally Harnage v. Lightner, 328 Conn. 248, 252–54,
179 A.3d 212 (2018) (plaintiff who sues state defendant in individual
McKinnon v. Gardner

appear. In that motion, the plaintiff noted that he had
commenced this action in April, 2023, and that “more
than 150 days have elapsed since the date on which the
defendants herein were served . . . .” The court granted
that motion by order dated November 9, 2023.
On November 13, 2023, the Office of the Attorney
General filed an appearance on behalf of the defendants.
Two weeks later, the defendants filed a motion to dismiss
the plaintiff’s action for lack of personal jurisdiction. In
the accompanying memorandum of law, the defendants
alleged that the plaintiff had failed to “properly serve
the Attorney General’s Office as required by General
Statutes § 52-64.” The defendants thus asked the court
to dismiss the plaintiff’s action “in its entirety” because
the court “lacks personal jurisdiction.” The plaintiff
filed an objection to the defendants’ motion to dismiss,
to which he appended as exhibits copies of the April 18
and August 30, 2023 returns of service.
The court heard argument from the parties on the
motion on February 23, 2024. By order dated June 10,
2024, the court granted the defendants’ motion to dis-
miss due to the plaintiff’s “failure to serve process on the
attorney general . . . .” In that order, the court made no
factual findings other than stating: “The plaintiff failed
to effect proper service as required by law, therefore
depriving the court of personal jurisdiction over the
defendants.” The court thus rendered a judgment of
dismissal, and this appeal followed.
I
On appeal, the plaintiff claims that the court improp-
erly granted the defendants’ motion to dismiss for lack
of personal jurisdiction. We agree.
It is well established that “[t]he Superior Court has
no authority to render a judgment against a person who
was not properly served with process. . . . The issue of
whether a court has jurisdiction presents a question of
and official capacities is obligated to comply with service of process
requirements of both General Statutes §§ 52-57 and 52-64).
McKinnon v. Gardner

law. . . . Our review of the court’s legal conclusion is,
therefore, plenary. . . .
“[T]he Superior Court . . . may exercise jurisdiction
over a person only if that person has been properly served
with process, has consented to the jurisdiction of the
court or has waived any objection to the court’s exercise
of personal jurisdiction. . . . [S]ervice of process on a
party in accordance with the statutory requirements is
a prerequisite to a court’s exercise of [personal] jurisdic-
tion over that party. . . . Therefore, [p]roper service of
process is not some mere technicality. . . .
“[W]hen a particular method of serving process is
set forth by statute, that method must be followed.
. . . Unless service of process is made as the statute
prescribes, the court to which it is returnable does not
acquire jurisdiction. . . . [A]n action commenced by such
improper service must be dismissed.” (Citations omit-
ted; internal quotation marks omitted.) Mosby v. Board
of Education, 191 Conn. App. 280, 284, 214 A.3d 400
(2019), cert. denied, 335 Conn. 939, 237 A.3d 1 (2020).
Section 52-64 (b) prescribes the manner in which ser-
vice of process shall be effectuated in actions by incarcer-
ated individuals against state employees in their official
capacities. It provides: “In any civil action commenced by
a person who is incarcerated against the state or any insti-
tution, board, commission, department or administrative
tribunal thereof, or against any officer, servant, agent or
employee of the state or of any such institution, board,
commission, department or administrative tribunal, as
the case may be, service of process on all defendants in
such civil action, who are sued in their official capacity,
shall be accomplished by a proper officer (1) leaving one
true and attested copy of the process, including the dec-
laration or complaint, with the Attorney General at the
office of the Attorney General in Hartford, or (2) send-
ing one true and attested copy of the process, including
the summons and complaint, by certified mail, return
receipt requested, to the Attorney General at the office
McKinnon v. Gardner

of the Attorney General in Hartford.” General Statutes
§ 52-64 (b).
The record before us unequivocally indicates that the
plaintiff complied with that statutory requirement when
he commenced this action against the defendants in
April, 2023. The return of service filed with the court
specifically states that Hall “made due and legal service”
on all six defendants on that date “by leaving a true and
attested copy” of the writ, summons, and complaint at
the Office of the Attorney General. For that reason, the
defendants on appeal concede that they “mistakenly
argued the court lacked personal jurisdiction over them
in their official capacities . . . .” The defendants further
concede that the trial court’s decision to grant their
motion to dismiss on that basis was erroneous.5
Because it is undisputed that the plaintiff complied
with the service of process requirements of both General
Statutes §§ 52-57 (a) and 52-64 (b), we conclude that
the court improperly determined that it lacked personal
jurisdiction over the defendants.
II
Although the defendants agree that the court improp-
erly concluded that it lacked personal jurisdiction, they
submit, as an alternate ground of affirmance, that the
dismissal of the plaintiff’s action in its entirety was
proper because the plaintiff’s claims are barred by the
doctrines of sovereign and qualified immunity, which
allegedly deprived the court of subject matter jurisdic-
tion.6 We address each doctrine in turn.
5
In their appellate brief, the defendants state in relevant part: “The
trial court dismissed this case in its entirety for lack of proper service.
Upon further review, the defendants now concede that the plaintiff
properly served them in their official capacities. [They] also concede
that they waived any objection to individual capacity service by fail-
ing to raise it below. So, the trial court should not have dismissed on
service grounds.”
6
The defendants raised that issue in a separate motion to dismiss
filed on December 28, 2023, in which they asked the court to dismiss
the plaintiff’s action “in its entirety” due to a lack of subject matter
jurisdiction. The plaintiff filed an objection to that motion to dismiss
McKinnon v. Gardner

A
We first consider the doctrine of sovereign immu-
nity. Our courts “have long recognized the validity of
the common-law principle that the state cannot be sued
without its consent . . . . A sovereign is exempt from suit,
not because of any formal conception or obsolete theory,
but on the logical and practical ground that there can be
no legal right as against the authority that makes the
law on which the right depends.” (Citations omitted;
internal quotation marks omitted.) Horton v. Meskill,
172 Conn. 615, 623, 376 A.2d 359 (1977). Rooted in the
recognition that subjecting “state and federal govern-
ments to private litigation might constitute a serious
interference with the performance of their functions and
with their control over their respective instrumentalities,
funds and property,” the doctrine of sovereign immunity
shields the state “from unconsented to litigation, as well
as unconsented to liability.” (Internal quotation marks
omitted.) Rocky Hill v. SecureCare Realty, LLC, 315
Conn. 265, 282, 105 A.3d 857 (2015).
As our Supreme Court has explained, “[t]he doctrine
of sovereign immunity implicates subject matter juris-
diction and is therefore a basis for granting a motion to
dismiss.”7 (Internal quotation marks omitted.) Marland
v. University of Connecticut Health Center, 350 Conn.
830, 835, 326 A.3d 1096 (2024). “A determination
regarding a trial court’s subject matter jurisdiction is
a question of law.” (Internal quotation marks omitted.)
on February 5, 2024. The record indicates that the trial court never
ruled on that motion to dismiss. Following the commencement of this
appeal, the defendants filed a motion to open and vacate the judgment
granting their motion to dismiss for lack of personal jurisdiction and
asked the court to “address [their] motion to dismiss for lack of subject
matter jurisdiction.” The court denied that motion.
7
Because sovereign immunity implicates the subject matter juris-
diction of the court, it may be raised at any time. See, e.g., Lewis v.
Gaming Policy Board, 224 Conn. 693, 698, 620 A.2d 780 (1993) (“[i]t
is a fundamental rule that a court may raise and review the issue of
subject matter jurisdiction at any time”).
McKinnon v. Gardner

Machado v. Taylor, 326 Conn. 396, 403, 163 A.3d 558
(2017). Accordingly, our review is plenary. Id.
In the present case, the plaintiff brought an action for
money damages against the defendants under 42 U.S.C.
§ 1983. The doctrine of sovereign immunity generally
bars all claims brought against state officials in their
official capacities pursuant to § 1983. See Miller v. Egan,
265 Conn. 301, 311, 828 A.2d 549 (2003) (explaining
that “[a] state, as an entity having immunity under the
eleventh amendment to the United States constitution,
is not a ‘person’ within the meaning of § 1983 and thus
is ‘not subject to suit under § 1983 in either federal
court or state court’ ” and noting that “[t]his rule also
extends to state officers sued in their official capacities”).
Although three exceptions to sovereign immunity exist;
see Columbia Air Services, Inc. v. Dept. of Transporta-
tion, 293 Conn. 342, 349–50, 977 A.2d 636 (2009); the
plaintiff has not invoked any of those exceptions. More-
over, none applies in the present case—the allegations
contained in the plaintiff’s complaint do not clearly fall
within a statutory waiver of sovereign immunity and the
plaintiff seeks only monetary damages, not declaratory
or injunctive relief.
“In the absence of a statutory waiver of sovereign
immunity, the plaintiff may not bring an action against
the state for monetary damages without authorization
from the claims commissioner to do so.” Id., 351. The
complaint in the present case contains no allegation that
the plaintiff obtained permission from the claims com-
missioner to institute the action for monetary relief; see
General Statutes § 4-160; and there is no such indication
in the record before us. In light of the foregoing, we con-
clude that the doctrine of sovereign immunity deprived
the trial court of subject matter jurisdiction over the
plaintiff’s claims against the defendants in their official
capacities. The court’s dismissal of the plaintiff’s action
in that regard, therefore, was not improper.8
8
As this court has observed, “[w]e may affirm a trial court’s decision
that reaches the right result, albeit for the wrong reason.” State v.
McKinnon v. Gardner

B
In their December 28, 2023 motion to dismiss for lack
of subject matter jurisdiction, the defendants also argued
that the plaintiff’s claims against them in their indi-
vidual capacities were barred by the doctrine of qualified
immunity. On appeal, the defendants renew that chal-
lenge as an alternate ground of affirmance and ask us
to affirm the judgment of dismissal as to those claims.9
We decline that invitation.
The doctrine of qualified immunity, in the context of
claims brought pursuant to § 1983, is a matter of federal
law. See Martinez v. California, 444 U.S. 277, 284 n.8,
100 S. Ct. 553, 62 L. Ed. 2d 481 (1980); Wood v. Strick-
land, 420 U.S. 308, 315–22, 95 S. Ct. 992, 43 L. Ed. 2d
214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 238–49,
94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); see also Mawhirt
v. Ahmed, 8 Fed. Appx. 125, 127 (2d Cir. 2001) (discuss-
ing “the federal law doctrine of qualified immunity” to
§ 1983 claims), cert. denied, 534 U.S. 1080, 122 S. Ct.
810, 151 L. Ed. 2d 695 (2002). That qualified immunity
“protects government officials performing discretionary
functions from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.”10 (Internal quotation marks omitted.)
Mulligan v. Rioux, 229 Conn. 716, 728, 643 A.2d 1226
(1994). “[A] claim for qualified immunity from liability
Albert, 50 Conn. App. 715, 728, 719 A.2d 1183 (1998), aff’d, 252 Conn.
795, 750 A.2d 1037 (2000).
9
In so doing, the defendants in their appellate brief acknowledge
that “[a] motion to dismiss . . . properly attacks the jurisdiction of the
court . . . . A motion to dismiss tests, inter alia, whether, on the face
of the record, the court is without jurisdiction.” (Internal quotation
marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982
A.2d 1053 (2009).
10
As our Supreme Court has explained, the qualified immunity that
protects public officials under the common law of this state “is distinct”
from that which protects public officials from claims brought pursu-
ant to § 1983. Mulligan v. Rioux, 229 Conn. 716, 728, 643 A.2d 1226
(1994). The present case does not involve any common-law claims, but
rather only ones brought pursuant to § 1983.
McKinnon v. Gardner

for damages under § 1983 raises a question of federal law
. . . and not state law. Therefore, in reviewing . . . claims
of qualified immunity [Connecticut courts] are bound
by federal precedent, and may not expand or contract
the contours of the immunity available to government
officials.” (Citation omitted; internal quotation marks
omitted.) Schnabel v. Tyler, 230 Conn. 735, 742–43,
646 A.2d 152 (1994).
Under federal law, qualified immunity operates as a
defense to a § 1983 claim. See Harlow v. Fitzgerald,
457 U.S. 800, 815, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982) (qualified immunity “is an affirmative defense
that must be pleaded by a defendant official”); Gomez
v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 64 L.
Ed. 2d 572 (1980) (“qualified immunity is a defense” to
§ 1983 action that must be pleaded); Sebesta v. Davis,
878 F.3d 226, 233 (7th Cir. 2017) (qualified immunity “is
an affirmative defense for pleading purposes”); Askins
v. Doe No. 1, 727 F.3d 248, 254 (2d Cir. 2013) (“[q]uali-
fied immunity is a defense available . . . to individuals
sued in their individual capacity” pursuant to § 1983);
McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004)
(“[q]ualified immunity is an affirmative defense” that “is
normally asserted in an answer”). The appellate courts
of this state have long recognized that bedrock precept.
See Ham v. Greene, 248 Conn. 508, 523, 729 A.2d 740
(setting forth party’s burden “to prevail as a matter
of law on the special defense of qualified immunity”),
cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed.
2d 254 (1999); Schnabel v. Tyler, supra, 230 Conn. 742
(explaining that qualified immunity is “a defense to
civil suits brought pursuant to § 1983” and referencing
“the qualified immunity defense” throughout opinion);
see also Sullins v. Rodriguez, 281 Conn. 128, 131 nn.4
and 5, 913 A.2d 415 (2007) (defendants pleaded special
defense of qualified immunity in answer to complaint);
Mulligan v. Rioux, supra, 229 Conn. 723 (same); Camp-
bell v. Porter, 212 Conn. App. 377, 391, 275 A.3d 684
(2022) (same); Outlaw v. Meriden, 43 Conn. App. 387,
McKinnon v. Gardner

389, 682 A.2d 1112 (same), cert. denied, 239 Conn. 946,
686 A.2d 122 (1996).
In the present case, the defendants did not plead quali-
fied immunity as a special defense. Rather, they averred,
in their December 28, 2023 motion to dismiss, that the
plaintiff’s “claims must be dismissed based on a lack
of subject matter jurisdiction.” In their accompanying
memorandum of law, they argued, inter alia, that the
plaintiff’s claims for monetary damages pursuant to §
1983 were barred by the doctrine of qualified immunity.
Accordingly, the defendants maintained that “the plain-
tiff’s action should be dismissed in its entirety.”
It is well established that a motion to dismiss “properly
attacks the jurisdiction of the court, essentially assert-
ing that the plaintiff cannot as a matter of law and fact
state a cause of action that should be heard by the court.
. . . A motion to dismiss tests, inter alia, whether, on
the face of the record, the court is without jurisdiction.”
(Internal quotation marks omitted.) Spillane v. Lamont,
350 Conn. 119, 125, 323 A.3d 1007 (2024). “Subject
matter jurisdiction does not rest on the viability of the
claims that a court is asked to adjudicate. . . . 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. . . . Once it is determined that a [court]
has authority or competence to decide the class of cases
to which the action belongs, the issue of subject mat-
ter jurisdiction is resolved in favor of entertaining the
action. . . . It is well established that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.”
(Citation omitted; emphasis in original; internal quota-
tion marks omitted.) Dept. of Public Health v. Estrada,
349 Conn. 223, 236–37, 315 A.3d 1081 (2024).
As our Supreme Court has explained, “[a] motion to
dismiss is the appropriate vehicle for challenging the
jurisdiction of the court.” Zizka v. Water Pollution
McKinnon v. Gardner

Control Authority, 195 Conn. 682, 687, 490 A.2d 509
(1985). Under our rules of practice, a motion to dis-
miss properly is used to assert “(1) lack of jurisdiction
over the subject matter; (2) lack of jurisdiction over
the person; (3) insufficiency of process; and (4) insuffi-
ciency of service of process.” Practice Book § 10-30 (a).
The “qualified immunity defense” to a § 1983 action;
Schnabel v. Tyler, supra, 230 Conn. 748; is not among
the grounds enumerated therein. Accordingly, the rel-
evant question is whether that defense implicates the
subject matter jurisdiction of the court. Cf. Marland
v. University of Connecticut Health Center, supra, 350
Conn. 835 (doctrine of sovereign immunity implicates
subject matter jurisdiction and thus is proper basis for
motion to dismiss).
Federal courts that have addressed the issue have
universally rejected the proposition that the doctrine
of qualified immunity is subject matter jurisdictional in
nature. See, e.g., Nevada v. Hicks, 533 U.S. 353, 373,
121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001) (“[t]here is no
authority whatever for the proposition that . . . qualified-
immunity defenses pertain to the court’s jurisdiction”);
Neal v. Davis, 475 Fed. Appx. 690, 692 (10th Cir. 2012)
(“qualified immunity is a defense [to a § 1983 claim] on
the merits, not a jurisdictional bar”). As the United
States Court of Appeals for the Sixth Circuit observed in
the context of a § 1983 claim, qualified immunity “is an
affirmative defense which must be affirmatively pleaded;
it is not a doctrine of jurisdictional nature that deprives
a court of the power to adjudicate a claim. . . . Since
[qualified] immunity must be affirmatively pleaded,
it follows that failure to do so can work a waiver of the
defense.” (Citations omitted.) Kennedy v. Cleveland,
797 F.2d 297, 300 (6th Cir. 1986), cert. denied sub nom.
Hanton v. Kennedy, 479 U.S. 1103, 107 S. Ct. 1334,
94 L. Ed. 2d 185 (1987); accord S.A.A. v. Geisler, 127
F.4th 1133, 1140 n.9 (8th Cir. 2025) (qualified immunity
is affirmative defense that is waived if not pleaded by
defendant); Lawless v. Freetown, 63 F.4th 61, 65 (1st
Cir. 2023) (qualified immunity is affirmative defense
McKinnon v. Gardner

that “can be waived or . . . forfeited”); Sharp v. Johnson,
669 F.3d 144, 158 (3rd Cir.) (“[q]ualified immunity is
an affirmative defense and generally must be included
in a responsive pleading or may be considered waived”),
cert. denied, 567 U.S. 937, 133 S. Ct. 41, 183 L. Ed. 2d
680 (2012); Suarez Corp. Industries v. McGraw, 202
F.3d 676, 684 n.12 (4th Cir. 2000) (“unlike a claim of
qualified immunity, [e]leventh [a]mendment immunity
is jurisdictional in nature”); Dudley v. Singleton, 508
F. Supp. 3d 1118, 1126 n.1 (N.D. Ala. 2020) (“qualified
immunity is not a jurisdictional issue”); Komutanon v.
Coler, 702 F. Supp. 1406, 1408 (N.D. Ill. 1988) (quali-
fied immunity “is not a jurisdictional bar, but rather an
affirmative defense”).
In echoing a similar sentiment, the United States Court
of Appeals for the Second Circuit expressly contrasted
qualified immunity from § 1983 claims with subject mat-
ter jurisdictional ones. As it stated: “Because qualified
immunity, unlike subject matter jurisdiction, is an affir-
mative defense that can be waived, we decline to extend
the collateral order doctrine to allow immediate appeal
from an order denying as untimely a motion asserting
that defense. . . . [S]uch an expansion is unwarranted,
since it would essentially grant defendants the right
to assert a qualified immunity defense at any time . . .
as though the affirmative defense were the equivalent
of a challenge to subject matter jurisdiction.” (Cita-
tions omitted.) Maye v. New Haven, 89 F.4th 403,
407–408 (2d Cir. 2023); see also McKenna v. Wright,
supra, 386 F.3d 435 (“[q]ualified immunity is an affirma-
tive defense” that “is normally asserted in an answer”);
McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir. 1997)
(“[t]he qualified immunity defense can be waived, either
by failure to raise it in a timely fashion . . . or by failure
to raise it with sufficient particularity” (citations omit-
ted)). The Second Circuit, whose precedent is entitled
to “special consideration” on this issue; see Schnabel
v. Tyler, supra, 230 Conn. 743; plainly is of the view
McKinnon v. Gardner

that qualified immunity from § 1983 actions does not
implicate the subject matter jurisdiction of the court.
The United States District Court for the District of
Connecticut, too, has rejected a claim that the qualified
immunity defense implicates the subject matter jurisdic-
tion of the court. As that court noted: “The existence
vel non of subject matter jurisdiction presents a funda-
mental issue; if subject matter jurisdiction is absent,
no proceedings can take place in the district court. A
qualified immunity defense [to a § 1983 action] has noth-
ing to do with that. Accordingly, there is no substance
to the . . . contention that the [c]ourt may lack subject-
matter jurisdiction in this action due to the [defendant’s]
‘qualified immunity defense.’ ” Mercer v. Schriro, 337
F. Supp. 3d 109, 125 (D. Conn. 2018).
As countless federal courts have observed, “[q]ualified
immunity is an affirmative defense that may be waived.”
Bogle v. McClure, 332 F.3d 1347, 1355 n.5 (11th Cir.
2003), cert. dismissed, 540 U.S. 1158, 124 S. Ct. 1168,
157 L. Ed. 2d 1059 (2004); see also Harlow v. Fitzger-
ald, supra, 457 U.S. 815 (qualified immunity “is an
affirmative defense that must be pleaded by a defendant
official”). Connecticut law similarly provides that special
defenses and affirmative defenses are deemed waived if
not pleaded by a defendant. See, e.g., Wilcox v. Webster
Ins., Inc., 294 Conn. 206, 222, 982 A.2d 1053 (2009)
(“[c]ollateral estoppel is an affirmative defense that may
be waived if not properly pleaded”); Stokes v. Norwich
Taxi, LLC, 289 Conn. 465, 488, 958 A.2d 1195 (2008)
(“the defendants waived the special defense of federal
preemption by failing to plead it”); State v. Littlejohn,
199 Conn. 631, 640, 508 A.2d 1376 (1986) (“[the] better
reasoned approach is not to treat the statute of limita-
tions as jurisdictional and hence nonwaivable but as
an affirmative defense and hence waivable”); Oakland
Heights Mobile Park, Inc. v. Simon, 36 Conn. App. 432,
436, 651 A.2d 281 (1994) (defendant’s “failure to assert”
special defense in pleadings “constituted a waiver of that
defense”); Fuller v. Planning & Zoning Commission, 21
McKinnon v. Gardner

Conn. App. 340, 346, 573 A.2d 1222 (1990) (“[l]ack of
capacity to maintain an action must be raised by way of
special defense and in a timely manner or will be deemed
to be waived”). Accordingly, we concur with the great
weight of federal authority holding that the qualified
immunity defense to a § 1983 action, like other special
defenses, may be waived if not properly pleaded.
Subject matter jurisdiction, by contrast, can never be
waived. That is a fundamental precept of both federal and
Connecticut law. See Gonzalez v. Thaler, 565 U.S. 134,
141, 132 S. Ct. 641, 181 L. Ed. 2d 619 (2012) (“[s]ubject-
matter jurisdiction can never be waived or forfeited”);
Fairfield Merrittview Ltd. Partnership v. Norwalk, 320
Conn. 535, 548, 133 A.3d 140 (2016) (“subject matter
jurisdiction cannot be waived by any party and can be
raised at any stage in the proceedings” (internal quota-
tion marks omitted)); Practice Book § 10-33 (“[a]ny claim
of lack of jurisdiction over the subject matter cannot be
waived”). We, therefore, conclude that the qualified
immunity defense to a § 1983 action does not implicate
the subject matter jurisdiction of the court.11 To hold
11
To the extent that the precedent of this court may be read to suggest
otherwise; see, e.g., Jan G. v. Semple, 202 Conn. App. 202, 218, 244
A.3d 644, cert. denied, 336 Conn. 937, 249 A.3d 38, cert. denied, ___
U.S. ___, 142 S. Ct. 205, 211 L. Ed. 2d 88 (2021); Braham v. Newbould,
160 Conn. App. 294, 301–307, 124 A.3d 977 (2015); Traylor v. Ger-
ratana, 148 Conn. App. 605, 612, 88 A.3d 552, cert. denied, 312 Conn.
901, 91 A.3d 908, and cert. denied, 312 Conn. 902, 112 A.3d 778, cert.
denied, 574 U.S. 978, 135 S. Ct. 444, 190 L. Ed. 2d 336 (2014); Tuchman
v. State, 89 Conn. App. 745, 750 and 762–63 n.7, 878 A.2d 384, cert.
denied, 275 Conn. 920, 883 A.2d 1252 (2005); we are bound by deci-
sions of the United States Supreme Court because qualified immunity
in the context of § 1983 claims is a matter of federal law. See Schnabel
v. Tyler, supra, 230 Conn. 743 (Connecticut state courts “are bound by
federal precedent” on qualified immunity claims under § 1983); Mul-
lin v. Guidant Corp., 114 Conn. App. 279, 288, 970 A.2d 733 (United
States Supreme Court precedent is binding on this court on matters
of federal law), cert. denied, 292 Conn. 921, 974 A.2d 722 (2009). As
previously indicated in this opinion, the United States Supreme Court
in Gomez v. Toledo, supra, 446 U.S. 640, held that qualified immunity
is an affirmative defense to § 1983 claims that must be pleaded by a
defendant. Affirmative defenses, unlike subject matter jurisdiction,
may be waived under federal law. See Maye v. New Haven, supra, 89
McKinnon v. Gardner

otherwise would “expand . . . the contours of the immu-
nity available to government officials” under federal
law; Schnabel v. Tyler, supra, 230 Conn. 743; which this
state court is not permitted to do. Id.; see also Mulligan
v. Rioux, supra, 229 Conn. 756 (Berdon, J., concurring
in part) (“[W]ith regard to qualified immunity [in the
context of § 1983 claims] we are not free to chart our own
course. Rather, [Connecticut courts] must be guided by
federal precedent, and can neither expand nor contract
the scope of this defense.”); cf. Maye v. New Haven,
supra, 89 F.4th 408 (declining to expand collateral order
doctrine because “it would essentially grant defendants
the right to assert a qualified immunity defense at any
time . . . as though the affirmative defense were the
equivalent of a challenge to subject matter jurisdiction”).
For that reason, the motion to dismiss is not the proper
procedural vehicle to raise the qualified immunity defense
in our courts in response to § 1983 claims. In this state,
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 motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction.” (Internal quotation marks
omitted.) Spillane v. Lamont, supra, 350 Conn. 125;
accord Glens Falls Ins. Co. v. Somers, 146 Conn. 708,
712, 156 A.2d 146 (1959) (“[a] motion to dismiss is not a
proper vehicle for an attack on the sufficiency of a plead-
ing”); Caltabiano v. Phillips, 23 Conn. App. 258, 265, 580
A.2d 67 (1990) (“[a] motion to dismiss does not test the
sufficiency of a cause of action and should not be granted
on other than jurisdictional grounds”). Special defenses,
therefore, are not properly raised in motions to dismiss.
See, e.g., Grant v. Bassman, 221 Conn. 465, 472–73,
604 A.2d 814 (1992) (claim that injured plaintiff made
exclusive election of workers’ compensation “is properly
F.4th 407; Bogle v. McClure, supra, 332 F.3d 1355 n.5. Accordingly,
the court’s holding in Gomez can only be read to mean that the qualified
immunity defense to a § 1983 action is not jurisdictional in nature, as
numerous federal courts have held.
McKinnon v. Gardner

raised by a special defense” and motion to dismiss was not
“the proper procedural vehicle” to plead that “challenge
to the plaintiffs’ complaint”); Zizka v. Water Pollution
Control Authority, supra, 195 Conn. 687 (special defense
“may not be raised by a motion to dismiss”); Gianetti v.
Connecticut Newspapers Publishing Co., 136 Conn. App.
67, 75, 44 A.3d 191 (“[statute of limitations] defenses
are appropriately raised as special defenses . . . and not
in motions to dismiss”), cert. denied, 307 Conn. 923, 55
A.3d 567 (2012); Sullivan v. Thorndike, 104 Conn. App.
297, 309–10, 934 A.2d 827 (2007) (concluding that trial
court “improperly based its granting of the defendant’s
motion to dismiss on the defendant’s special defenses”),
cert. denied, 285 Conn. 907, 942 A.2d 415 (2008), and
cert. denied, 285 Conn. 908, 942 A.2d 416 (2008); John
H. Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn.
App. 599, 606, 821 A.2d 774 (motion to dismiss improp-
erly granted “when based on a special defense”), cert.
denied, 264 Conn. 919, 828 A.2d 617 (2003). Because
the qualified immunity defense to a § 1983 action is a
special defense, it cannot properly be raised in a motion
to dismiss in Connecticut’s state courts.
Rather, the qualified immunity defense to § 1983
actions, like other special defenses, properly is raised in
either a motion to strike, in which a party challenges the
legal sufficiency of a pleading; see Practice Book § 10-39;
or a motion for summary judgment, in which a party
contends that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of law.12
See Practice Book § 17-49. A motion to strike under our
rules of practice is the functional equivalent of a motion
to dismiss in federal court pursuant to rule 12 (b) (6) of
12
When the issue has arisen in the context of state law, this court
similarly has held that the qualified immunity conferred on attorneys
appointed to represent minor children pursuant to General Statutes §
46b-54 “is properly pleaded as a special defense and [is properly] raised
by using either a motion to strike or a motion for summary judgment.”
Carrubba v. Moskowitz, 81 Conn. App. 382, 385, 840 A.2d 557 (2004),
aff’d, 274 Conn. 533, 877 A.2d 773 (2005).
McKinnon v. Gardner

the Federal Rules of Civil Procedure,13 and, when prop-
erly asserted, “attacks the sufficiency of the pleadings.”
Egri v. Foisie, 83 Conn. App. 243, 247, 848 A.2d 1266,
cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). As this
court has noted, “[t]he distinction between the motion to
dismiss and the motion to strike is not merely semantic.
If a motion to dismiss is granted, the case is terminated,
save for an appeal from that ruling. . . . The granting
of a motion to strike, however, ordinarily is not a final
judgment because our rules of practice afford a party
a right to amend deficient pleadings.” (Citation omit-
ted.) Id., 249. That “critical distinction”; id.; provides
further support for our conclusion that the qualified
immunity defense is not properly raised in a motion to
dismiss under our rules of practice.
The qualified immunity defense to § 1983 actions also
may be raised by way of a motion for summary judgment.
As several courts have observed, summary judgment
often is a preferred method for raising that defense.
See, e.g., Mouille v. Live Oak, 977 F.2d 924, 926 (5th
Cir. 1992) (“[q]ualified immunity is normally raised
prior to trial at the summary judgment stage”), cert.
denied sub nom. Liberda v. Live Oak, 508 U.S. 951,
113 S. Ct. 2443, 124 L. Ed. 2d 660 (1993); Cartier v.
Lussier, 955 F.2d 841, 844 (2d Cir. 1992) (“The [United
States] Supreme Court has expressly encouraged the
use of summary judgment when qualified immunity is
13
See, e.g., Culverhouse v. Paulson & Co., 813 F.3d 991, 993–94 (11th
Cir. 2016) (explaining that District Court “incorrectly described [the
plaintiff’s deficient pleading] as jurisdictional” and “should have dis-
missed [the] complaint for failure to state a claim [pursuant to] Fed. R.
Civ. P. 12 (b) (6), not for lack of subject-matter jurisdiction [pursuant to]
Fed. R. Civ. P. 12 (b) (1)”); Norex Petroleum Ltd. v. Access Industries,
Inc., 631 F.3d 29, 32 (2d Cir. 2010) (challenge to legal sufficiency of
pleading “is properly analyzed as a merits question pursuant to Fed. R.
Civ. P. 12 (b) (6), not as a question of subject matter jurisdiction raised
by Fed. R. Civ. P. 12 (b) (1)”), cert. dismissed, 564 U.S. 1053, 133 S.
Ct. 21, 180 L. Ed. 2d 913 (2011); cf. Carter v. Ludwick, 139 F.4th 982,
989 (8th Cir. 2025) (“[q]ualified immunity is an affirmative defense
[that] will be upheld on a [Fed. R. Civ. P.] 12 (b) (6) motion only when
the immunity is established on the face of the complaint” (internal
quotation marks omitted)).
McKinnon v. Gardner

raised as a defense. The objective reasonableness test was
designed to facilitate this summary device as a means
quickly to extricate government officials from defend-
ing insubstantial suits.”); Mulligan v. Rioux, supra,
229 Conn. 736 n.23 (“[b]ecause the defense of qualified
immunity has been construed as an immunity from suit,
not a mere defense to liability . . . when there are no
unresolved factual issues material to its applicability,
it is preferable for the trial court to decide the issue
of qualified immunity as a matter of law on a pretrial
motion for summary judgment” (citation omitted)). In
this regard, we note that parties in this state may move
for summary judgment at any time. See Practice Book
§ 17-44 (“any party may move for a summary judgment
as to any cause of action or defense as a matter of right
at any time if no scheduling order exists and the case has
not been assigned for trial”); see also Joe’s Pizza, Inc.
v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8,
675 A.2d 441 (1996) (“a party may move for summary
judgment at any time”); Nash v. Roland Dumont Agency,
Inc., Docket No. CV-XX-XXXXXXX-S, 2018 WL 6721442,
*1 (Conn. Super. November 21, 2018) (“[p]rior to filing
an answer, the defendants filed a motion for summary
judgment, as permitted by Practice Book § 17-44”).
It is well established that “once the issue of subject
matter jurisdiction is raised, it must be immediately
acted upon by the court.” (Internal quotation marks
omitted.) Wolfork v. Yale Medical Group, 335 Conn.
448, 464 n.9, 239 A.3d 272 (2020). That is not the case
here, as the qualified immunity defense to a § 1983 action
does not implicate the subject matter jurisdiction of the
court. In addition, we note that the trial court in the
present case did not rule on the defendants’ contention
that the plaintiff’s claims were barred by the qualified
immunity defense. We also are mindful of the critical
distinction between motions to dismiss and motions to
strike under our rules of practice. See Egri v. Foisie,
supra, 83 Conn. App. 249. Were this court to affirm the
dismissal of the plaintiff’s claims against the defendants
in their individual capacities on the qualified immunity
McKinnon v. Gardner

defense—despite the fact that the qualified immunity
defense to § 1983 actions is not jurisdictional in nature—
the plaintiff would be denied his “right to amend the
deficient pleading.”14 Baskin’s Appeal from Probate, 194
Conn. 635, 640, 484 A.2d 934 (1984); see also Practice
Book § 10-44. For all of those reasons, we decline to
address the merits of the defendants’ alternate ground
of affirmance with respect to the doctrine of qualified
immunity. The defendants are free to renew that chal-
lenge on remand before the trial court.
In light of the foregoing, we conclude that the court
improperly dismissed the plaintiff’s action against the
defendants in their individual capacities for lack of per-
sonal jurisdiction.
The judgment is reversed in part and the case is
remanded for further proceedings in accordance with
this opinion.
In this opinion the other judges concurred.

14
We recognize that, on occasion, our courts have treated a procedur-
ally incorrect motion to dismiss as a motion to strike when it is uncontro-
verted that the plaintiff could not add anything to its complaint by way
of amendment to avoid the deficiencies of the original complaint. See,
e.g., Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 501–502,
815 A.2d 1188 (2003); McCutcheon & Burr, Inc. v. Berman, 218 Conn.
512, 527–28, 590 A.2d 438 (1991). We decline to do so here, as the trial
court neither heard argument on the legal sufficiency of the plaintiff’s
complaint nor ruled on that issue. Moreover, the defendants have not
argued that the right to amend a deficient pleading memorialized in
Practice Book § 10-44 would be unavailing to the plaintiff in this case.