Oliphant v. Villano et al
Filing
151
ORDER: Hamden Defendants' Motion to Dismiss 113 is DENIED in part and GRANTED in part; New Haven Defendants' Motion for Judgment on the Pleadings 115 is GRANTED in part and DENIED in part; Plaintiff's Motion to Amend 132 is GRANTED. Signed by Judge Janet Bond Arterton on 09/06/2011. (Flagg, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Anthony Wayne Oliphant,
Plaintiff,
Civil No. 3:09cv862 (JBA)
v.
Robert Villano, et al.,
Defendants.
September 6, 2011
RULING ON MOTIONS
Plaintiff Anthony Wayne Oliphant, currently incarcerated at Cheshire Correctional
Institution, filed suit pro se1 against New Haven police officers, Hamden police officers, and
State of Connecticut Department of Corrections personnel, under the Fourth, Eighth, and
Fourteenth Amendments, pursuant to 42 U.S.C. § 1983 and for common–law assault and
battery. Some of the Hamden police defendants, specifically Michael Sigmon, Joseph
Venditto, Michael Narwocki, Ronald Glifort, Eric Goclowski, Robert O’Neil, and Darlene
Passapera (collectively the “Hamden Defendants”) move [Doc. # 113] to dismiss Plaintiff’s
claims against them pursuant to Fed. R. Civ. P. 12(b)(6), and Defendants Joyner, Davis,
Howze, Smith, and Levy of the New Haven police (collectively the “New Haven
Defendants”)2 move [Doc. # 115] for judgment on the pleadings, pursuant to Fed. R. Civ. P.
12(c). In response, Plaintiff moves [Doc. # 132] for leave to amend his complaint, which
proposed amendment he says would “correct[] and remed[y] all []alleged[] deficiencies
claimed by the Defendants.” For the following reasons, Defendants’ motions to dismiss and
1
“A document filed pro se is to be liberally construed.” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
2
Defendants Robert Villano, Mark Sheppard, William Onofrio, M. McNeil, Brian
Murphy, James Dzurenda, Jeffrey McGill, Fred Levesque, Morris, Wayne Choinski, and
Mumin do not move to dismiss.
for judgment on the pleadings will be granted in part and denied in part, and Plaintiff’s
motion to amend his complaint will be granted.3
I.
Hamden Defendants
A.
Facts
The facts Plaintiff alleges are set out more fully in the Court’s [Doc. # 17] Initial
Review Order and Order on Pending Motions. Plaintiff’s only allegations relating to the
Hamden Defendants who move to dismiss are that they accompanied Hamden police
Officer Villano to Plaintiff’s home on September 25, 2006 after “Deedra Dixon told the
Hamden–Police that [P]laintiff [was] attacking Rhonda M. Dixon, falsely” (Am. Compl.
¶¶ 35–37), and that later that evening, those Defendants returned again with Villano to
Plaintiff’s home, at which point Villano “severely kick[ed Plaintiff’s] backdoor repeatedly
over–and–over” causing “egregious damage to the inside doorframe of Plaintiff’s backdoor”
and yelled obscenities at Plaintiff (Id.¶¶ 40–44). During the first visit on September 25,
2006, “Plaintiff stay[ed] inside of his dwelling until both Hamden–Police and the Dixon
family, who were making physical threats, with impunity, all had departed the area.” (Id.
3
Fed. R. Civ. P. 15(a) provides that “[t]he court should freely give leave when justice
so requires,” and “a Rule 15(a) motion [to amend a complaint] should be denied only for
such reasons as undue delay, bad faith, futility of the amendment, and perhaps most
important, the resulting prejudice to the opposing party.” Aetna Cas. & Sur. Co. v. Aniero
Concrete Co., Inc., 404 F.3d 566, 603 (2d Cir. 2005). Hamden and New Haven Defendants
oppose Plaintiff’s motion to amend on the basis that it contains nothing more than the
deficient conclusory allegations of his original Complaint. However, Plaintiff has added new
allegations that support his Fourth Amendment claims, discussed infra, such as that Villano
caused extensive damage to his door frame. Thus, absent any prejudice aside from the late
date of amendment, Plaintiff’s [Doc. # 132] Motion to Amend is granted.
2
¶ 40.) Plaintiff does not explain how the second police visit on September 25, which
continued into the early morning on September 26, ended.
Plaintiff’s only allegation as to Passapera is that when Plaintiff called 911 that night,
Passapera, a Hamden police dispatcher, would not connect him to the New Haven Police
Department, but on September 26, 2006, when he again called 911, Passapera did ultimately
connect him to the New Haven Police.
B.
Discussion4
1.
False Imprisonment
Plaintiff claims that among others, the Hamden Defendants falsely imprisoned him
in violation of the Fourth Amendment. In Connecticut, “false imprisonment, or false arrest,
is the unlawful restraint by one person of the physical liberty of another.”5 Russo v. City of
Bridgeport, 479 F.3d 196 at 204 (2d Cir. 2007) (quoting Outlaw v. City of Meriden, 43 Conn.
App. 387, 392 (1996)). The restraint must be accomplished “through the exercise of force.”
Berry v. Loiseau, 223 Conn. 786, 820 (1992). A Section 1983 claim for false arrest or false
imprisonment “rest[s] on the Fourth Amendment right of an individual to be free from
unreasonable seizures,” Weyan v. Okst, 101 F.3d 845, 852 (2d Cir. 1996), and “[a] person has
been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the
4
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, ––– U.S. ––––, ––––, 129 S.Ct. 1937, 1949 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
5
“Claims for false arrest . . . brought under § 1983 to vindicate the Fourth and
Fourteenth Amendment right to be free from unreasonable seizures, are ‘substantially the
same’ as claims for false arrest . . . under state law.” Jocks v. Tavernier, 316 F.3d 128, 134 (2d
Cir. 2003).
3
circumstances surrounding the incident, a reasonable person would have believed that he
was not free to leave,” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
Plaintiff alleges that because Officer Villano, who accompanied the Hamden
Defendants, kicked the back door of his house and screamed threatening profanities at him,
he could not leave his house until after Villano left the premises, allegations which if true
could state a claim for false imprisonment against Villano. The Hamden Defendants argue
that Plaintiff does not allege that they personally restrained him in any way, and therefore,
he has failed to state a false imprisonment or arrest claim against them. However, Plaintiff
does allege that they were present while Villano was kicking and screaming, which is
sufficient at this stage to plead failure to intervene. Police officers “have an affirmative duty
to intercede on the behalf of a citizen whose constitutional rights are being violated in their
presence by other officers.” O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). “An officer
who fails to intercede is liable for the preventable harm caused by the actions of the other
officers where that officer observes or has reason to know: (1) that excessive force is being
used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation
has been committed by a law enforcement official.” Anderson v. Branen, 17 F.3d 552, 557
(2d Cir. 1994) (internal citations omitted). Thus, Hamden Defendants’ motion to dismiss
Plaintiff’s false imprisonment claim as to Michael Sigmon, Joseph Venditto, Michael
Narwocki, Ronald Glifort, Eric Goclowski, Robert O’Neil is denied. However, there is no
allegation that Passapera, a telephone dispatcher, had a “realistic opportunity to intervene
to prevent the harm from occurring,” a necessary showing for a failure to intervene claim,
see id., and therefore, Defendants’ motion to dismiss Plaintiff’s false imprisonment claim
against Passapera is granted.
4
2.
Excessive Force
Plaintiff also claims that the Hamden Defendants used excessive force against him
in violation of the Fourth Amendment. The only physical force against Plaintiff is alleged
to have occurred later during his detention on October 6, 2006 by non–moving Defendants
Sheppard and Onofrio. Defendants’ personal involvement in alleged constitutional
deprivations is required under Section 1983. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010).
Because Plaintiff does not allege the presence of any of the Hamden Defendants during that
confrontation, that encounter cannot give rise to an excessive force claim against them.
Construing Plaintiff’s claim as related to Villano’s “severely kick[ing]” and
“egregiously damag[ing]” his doorframe as a claim of failure to intervene, the Hamden
Defendants argue that such property damage does not amount to a constitutional violation.
They rely on Hudson v. Palmer, in which the Supreme Court held that the deprivation of an
inmate’s property by a prison guard was not a Fourth Amendment violation, because he had
meaningful post–deprivation remedies under state law. 468 U.S. 517 (1984). Defendants
also point to Andulan v. City of Seattle, in which police serving a search warrant damaged
property within the plaintiff’s home, which was deemed not to constitute excessive force.
No. C07–500RBL, 2008 WL 786628, *8 (W.D. Wash. Mar. 21, 2008). Here, unlike in
Hudson, the Hamden Defendants do not claim that Plaintiff had available post–deprivation
remedy for damage to his doorframe, and thus Plaintiff’s allegations of egregiousness could
be construed as alleging unreasonable or malicious property damage, which in the Second
Circuit can give rise to an excessive force claim. See, e.g., Pina v. City of Hartford, No.
07cv657(JCH), 2009 WL 1231986, * 8 (D. Conn. Apr. 29, 2009 ) (“‘[I]t is well recognized that
officers executing search warrants on occasion must damage property in order to perform
5
their duty,’ . . . [and b]efore an officer can be liable for property damage resulting from a
lawful search, the plaintiff must establish that the police acted unreasonably or maliciously
in bringing about the damage.”) (quoting Cody v. Emllo, 59 F.3d 13, 16 (2d Cir. 1995)).
Therefore, Plaintiff has sufficiently pleaded a failure to intervene claim against Hamden
Defendants for Villano’s excessive force, see Anderson, 17 F.3d at 557,6 and the Hamden
Defendants’ motion to Plaintiff’s excessive force claims against Sigmon, Venditto, Narwocki,
Glifort, Goclowski, and O’Neil is denied. However, in the absence of any facts from which
it can be inferred that Passapera had a reasonable opportunity to intervene, this claim is
dismissed as to her.
3.
Due Process
Plaintiff claims violations of his procedural due process rights by Hamden
Defendants based on the same facts underpinning his Fourth Amendment claims. To
succeed on a claim of procedural due process deprivation under the Fourteenth
Amendment—that is, a lack of adequate notice and a meaningful opportunity to be heard—a
plaintiff must first establish that state action deprived him of a protected property interest.
Mathews v. Eldridge, 424 U.S. 319, 334 (1976).7 As Plaintiff does not allege that any of the
6
Plaintiff also alleges Villano’s yelling profane threats as examples of excessive force,
but “[v]erbal harassment itself does not rise to the level of a constitutional violation.” Tafari
v. McCarthy, 714 F. Supp.2d 317, 364 (N.D.N.Y. 2010); see also Ramriez v. Holmes, 921 F.
Supp. 204, 210 (S.D.N.Y. 1996) (“Allegations of threats or verbal harassment, without any
injury or damage, do not state a claim under 42 U.S.C. § 1983.”).
7
Property interests that are protected by the Due Process Clause of the Fourteenth
Amendment are not created by that amendment; they are defined by “existing rules or
understandings that stem from an independent source such as state law.” Bd. of Regents v.
Roth, 408 U.S. 564, 577 (1972) (cited in Spinelli v. City of New York, 579 F.3d 160, 168-69 (2d
Cir. 2009)).
6
moving Hamden Defendants have deprived him of a property or liberty interest, his
procedural due process claims against them are dismissed.
Plaintiff also claims violations of his substantive due process rights. State action is
violative of substantive due process rights where it was “‘so egregious, so outrageous, that
it may fairly be said to shock the contemporary conscience.’”
Okin v. Village of
Cornwall–On–Hudson Police Dep’t, 577 F.3d 415, 431 (2009) (quoting County of Sacramento
v. Lewis, 523 U.S. 833 (1998)). Conduct that is “intended to injure in some way unjustifiable
by any government interest is the sort of official action most likely to rise to the
conscience-shocking level.” Lewis, 523 U.S. at 849. The unconstitutional conduct Plaintiff
alleges by the moving Hamden Defendants is that they accompanied Villano to Plaintiff’s
house after Deedra Dixon’s report of assault. These factual allegations do not set forth
conduct that could shock the contemporary conscience, and Plaintiff’s substantive due
process claim against moving Hamden Defendants is dismissed.
4.
Equal Protection
Plaintiff claims violations of the Equal Protection Clause of the Fourteenth
Amendment, alleging that “Plaintiff at all times mentioned, herein, is an African–American
and a member of a racial minority [w]ho was subjected to racial discrimination and was
denied full equal benefits of the laws by defendants.” (Am. Compl. ¶ 2.) This allegation is
conclusory and does not contain any facts showing the facial plausibility of an equal
protection claim, and Plaintiff’s equal protection claim against Hamden Defendants is
therefore dismissed.
7
5.
State Law Assault and Battery
Finally, Hamden Defendants move to dismiss Plaintiff’s assault and battery claims.
A civil assault is defined as “the intentional causing of imminent apprehension of harmful
or offensive contact with another.” Dewitt v. John Hancock Mutual Life Ins. Co., 5 Conn.
App. 590, 594 (1985). The Connecticut Supreme Court has held that “[a]n actor is subject
to liability to another for battery if (a) he acts intending to cause a harmful or offensive
contact with the person of the other or a third person, or an imminent apprehension of such
a contact, and (b) a harmful contact with the person of the other directly or indirectly
results.” Alteiri v. Colasso, 168 Conn. 329, 334 n.3 (1975). Plaintiff has not alleged facts from
which it can be inferred that any Hamden Defendant intended to cause him imminent
apprehension of harmful or offensive contact or that any Hamden Defendant came into
physical contact with Plaintiff. Thus, his assault and battery claims against the Hamden
Defendants are dismissed.
II.
New Haven Defendants
A.
Facts alleged
Plaintiff also sues Officers Joyner, Davis, Smith, and Levy in their individual and
official capacities for violations of the Fourth and Fourteenth Amendments.8 He alleges that
late at night on September 26, 2006, with Rhonda Dixon, her three brothers, and Officer
8
A Section 1983 suit against a municipal officer in his official capacity is considered
a suit against the municipality itself, Brandon v. Holt, 469 U.S. 464 (1985), and therefore the
officer may be held liable only if the municipality is liable for an unconstitutional “policy”
or “custom” under the principles of Monell v. New York City Department of Social Services,
436 U.S. 658, 690–91 (1978). See Brandon, 469 U.S. at 472–73. Because Plaintiff does not
allege that New Haven Defendants acted pursuant to a policy or custom, his official–capacity
claims are dismissed and the Court will only consider his claims against New Haven
Defendants in their individual capacities.
8
Villano in his front yard, he called the New Haven Police and requested assistance, in
response to which Officers Levy, Howze, and Smith arrived at approximately 11:45 p.m.
(Compl. ¶¶ 46–51.) Plaintiff further alleges that Levy, Howze, and Smith then aided Officer
Villano in towing Plaintiff’s car. (Id. ¶¶ 54–55.) Plaintiff filed a “citizen–police complaint”
with Officer Joyner on September 28, 2006 about this towing, which he says Joyner never
processed. (Id. ¶ 56.) On September 29, 2006, he met with Officer Davis at the New Haven
Department of Police Service, who he says took down information about a criminal
complaint which Plaintiff sought to have brought against the Dixons and Officer Villano for
trespass and threatening. Although Davis assigned Plaintiff’s criminal complaint an
investigation number, Plaintiff alleges that there was ultimately no investigation. (Id. ¶ 60.)
B.
Discussion9
1.
Fourth Amendment False Arrest and Excessive Force
Plaintiff does not allege that New Haven Defendants physically restrained him or
used any force against him, nor does he describe any unconstitutional actions in which they
could have intervened. Accordingly, Plaintiff’s false arrest and excessive force claims against
New Haven Defendants are dismissed.
2.
Procedural Due Process
Plaintiff claims that the New Haven Defendants also violated his procedural due
process rights, which the New Haven Defendants characterize as based on allegations that
they failed to provide him with assistance during the altercation with the Dixons and Villano
9
Motions for judgment on the pleadings brought pursuant to Fed. R. Civ. P. 12(c)
are analyzed in accordance with the same standard used for motions to dismiss for failure
to state a claim, stated above. See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010).
9
on September 26, 2006; that the Citizen–Police Complaint filed with Joyner was never
investigated; and that the criminal complaint made to Davis against members of the Dixon
family and Villano was never investigated. Plaintiff also alleges that the New Haven
Defendants “assisted . . . Villano in ‘conversion’ of plaintiff’s vehicle parked on his private
property” by having it towed. (Compl. ¶¶ 54–55.)
Insofar as Plaintiff claims that the New Haven Defendants’ failure to intervene
during his altercation with the Dixons and Villano violated the Due Process Clause of the
Fourteenth Amendment, “the Due Process Clauses generally confer no affirmative right to
governmental aid, even where such aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the individual.” DeShaney v.
Winnebago Cnty. Dep’t Soc. Servs., 489 U.S. 189, 195–96 (1989). An exception to this rule
applies where “the officer in some way had assisted in creating or increasing the danger to
the victim,” which may implicate the victim’s rights under the Due Process Clause. Okin v.
Village of Cornwall–On–Hudson Police Dep’t, 577 F.3d 415, 437 (2d Cir. 2009) (internal
citations omitted). Plaintiff alleges no facts from which it can be inferred that New Haven
Defendants increased or created any danger posed by the Dixons or Officer Villano.
As to Plaintiff’s allegations that Officers Joyner and Davis failed to investigate his
complaints, “a private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another,” and therefore “lacks standing to contest the policies of the
prosecuting authority when he himself is neither prosecuted nor threatened with
prosecution.” See In re Attorney Disciplinary Appeal, No. 10-90018, ––– F.3d –––– , 2011 WL
2090822 (2d Cir. May 27, 2011) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)).
10
Plaintiff’s allegations of failure to conduct criminal investigations therefore do not implicate
violations of his Fourteenth Amendment rights.
However, Plaintiff’s allegations that Officers Levy, Howze, and Smith helped Officer
Villano illegally tow Plaintiff’s car, depriving him of a property interest, without providing
him an opportunity to be heard before or after, are sufficient at this stage to state a
procedural due process Fourteenth Amendment claim. See, e.g., Perry v. McDonald, 280
F.3d 159, 173–74 (2d Cir. 2001) (revocation of obscene vanity plates did not violate the
plaintiff’s procedural due process rights where she was given notice and afforded a
post–revocation hearing, as “[t]he essence of due process is the requirement that ‘a person
in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet
it.’”) (quoting Mathews, 424 U.S. at 348). Thus, New Haven Defendants’ motion to dismiss
is denied as to Plaintiff’s allegations that Officers Levy, Howze, and Officer Smith helped
Villano unlawfully tow his car.
3.
Equal Protection
The deficiencies in Plaintiff’s equal protection claim against Hamden Defendants
apply to his equal protection claim against New Haven Defendants as well. Although he
proposes amending his complaint to allege that his car was towed from his property as “overt
discrimination” and that such treatment is different “from others similarly situated”
(Proposed Am. Compl. ¶¶ 56–57), Plaintiff does not allege any basis for inferring either a
discriminatory intent or effect related to New Haven Defendants’ actions, nor the existence
of any comparators or how he was treated differently from them. He has therefore failed to
state a claim under the Equal Protection Clause against New Haven Defendants.
11
4.
Assault and Battery
For the same reasons Plaintiff’s assault and battery claims against the Hamden
Defendants are dismissed, so too are his assault and battery claims against New Haven
Defendants; Plaintiff does not allege any facts giving rise to an inference that New Haven
Defendants exchanged threatening communications with him or came into physical contact
with him.
III.
Conclusion
Accordingly, Hamden Defendants’ [Doc. # 113] Motion to Dismiss is DENIED in
part as to Plaintiff’s false imprisonment and excessive force claims against Sigmon, Venditto,
Narwocki, Glifort, Goclowski, and O’Neil and GRANTED as to all other claims again them
and as to all claims against Officer Passapera; and New Haven Defendants’ [Doc. # 115]
Motion for Judgment on the Pleadings is DENIED in part, as to Plaintiff’s Fourteenth
Amendment procedural due process claims against Smith, Howze, and Levy and GRANTED
as to all other claims. Plaintiff’s [Doc. # 132] Motion to Amend is GRANTED.
IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 6th day of September, 2011.
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?