Martorelli v. Cossette

Filing 43

ORDER: Defendant's Motion [Doc. # 34] for Summary Judgment is GRANTED. Signed by Judge Janet Bond Arterton on 3/30/2012. (Flagg, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
David Martorelli,
Plaintiff,

Civil No. 3:10cv236 (JBA)

v.
Jeffrey W. Cossette,
Defendant.

March 30, 2012

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff David Martorelli has brought this lawsuit against Defendant Jeffrey W.
Cossette, Chief of Police of the City of Meriden, in both his individual and official capacities.
Plaintiff alleges that Defendant’s actions deprived Plaintiff of property, his pawnbroker
license, without due process of law; that Defendant carried out this deprivation in such an
“outrageously arbitrary” manner so as to deprive Plaintiff of substantive due process of law;
and that Defendant has violated Plaintiff’s right to equal protection of the laws, all in
violation of the Fourteenth Amendment. Defendant moves [Doc. # 34] for summary
judgment on all of Plaintiff’s claims,1 and Plaintiff opposes [Doc. # 39] this motion, claiming
that there is a genuine dispute between the parties regarding certain material facts. For the
following reasons, Defendant’s motion will be granted.
I.

Factual Background
Beginning in 2001, Plaintiff owned and operated the New Cook Avenue Pawnshop

in Meriden, Connecticut. (Pl.’s Dep., Ex. 1 to Pl.’s Loc. R. 56(a)2 Stmt [Doc. # 38] at 31.)

1

In Defendant’s Memorandum in Support of his motion for summary judgment, he
asserts the defense of governmental immunity under Conn. Gen. Stat. § 52-557n(b)(7).
However, at oral argument Defendant conceded that Connecticut statutory governmental
immunity was inapposite here. Thus, this argument is deemed withdrawn.

Several years later, Plaintiff purchased the building in which the pawnshop was located. (Pl.’s
Dep. at 16–17.) On June 3, 2009, Plaintiff and several of his employees were arrested
following an undercover investigation of the New Cook Avenue Pawnshop conducted by a
task force of various Connecticut law enforcement agencies, in which an undercover police
officer sold a pallet of power tools represented to be stolen to Plaintiff’s clerk.2 (Investigation
Report, Ex. A to Def.’s 56(a)1 Stmt. [Doc. # 36] at 1–3.) As a result of this investigation,
Plaintiff was arrested on charges of felony larceny, conspiracy to commit larceny, and
receiving stolen property. (Pl.’s Dep., Ex. H to Def.’s 56(a)1 Stmt. at 23:21–24:5.) Two
employees of Julie’s Pawn (also known as “J.B.’s Pawn”), a neighboring pawnshop also
located in the City of Meriden, were also arrested by the task force in a similar investigation.
(Id. at 38:7–38:11.) The owner of Julie’s Pawn was not arrested. (Id. at 38:12–38:13.)
On June 25, 2009, while the charges were pending, Plaintiff applied for a renewal of
his pawnshop and precious metals licenses, and received a receipt that stated “this license
may be revoked as provided by city by–laws” and designated a license period running from
June 28, 2009 to June 28, 2010. (License Application Receipt, Ex. G to Def.’s 56(a)1 Stmt. at
1–2.) On September 16, 2009, Plaintiff received a letter from Defendant that a “Due Process
Hearing” was scheduled for October 1, 2009, at which Plaintiff’s “suitability to operate as a
pawn broker/precious metal dealer within the City of Meriden” would be determined. (Sept.
16, 2009 Ltr From Cossette to Martorelli, Ex. C to Def.’s 56(a)1 Stmt. at 1.) At the “Due
Process Hearing” presided over by Defendant, both Plaintiff and his attorney argued

2

According to the investigation report, Plaintiff’s clerk was told on the date of the
sale that these power tools “fell off a truck,” an expression which is “commonly used by
person(s) who are involved in the buying or selling of stolen merchandise to hide the fact
that the merchandise is stolen.” (See Ex. A at 2.)
2

Plaintiff’s suitability to continue to operate as a pawn broker, making the following
arguments: (1) Plaintiff was innocent until proven guilty; (2) Plaintiff had not been
convicted of a crime; (3) the criminal investigators on the task force had misrepresented facts
to Defendant; (4) Plaintiff had been a law–abiding pawn shop operator for eight years; (5)
Plaintiff documented all business transactions and provided weekly reports to the police
department; (6) Plaintiff had always cooperated fully with police, and “had an open–door
policy” with the police; (7) Plaintiff had worked with other police departments by purchasing
stolen goods at their direction to aid investigations; (8) local businesspeople, police, and
politicians provided character references for Plaintiff; (9) Plaintiff was undergoing expensive
treatments for multiple sclerosis, and needed medical insurance; and (10) it was common
knowledge that anyone was able to buy pallets of merchandise from stores such as Home
Depot and Lowes. (Cossette Aff. ¶ 9; Pl.’s Dep. at 31:5–32:23.)
After the hearing, Defendant concluded that Plaintiff’s arguments “rang[ed] from
what I found to be unpersuasive to frivolous in light of the evidence underlying his pending
criminal charges” (Cossette Aff. ¶ 8), and notified Plaintiff that “[n]othing that you or your
attorney had to offer in your defense convinced me that you were not engaging in a fencing
operation” (Oct. 22, 2009 Ltr from Cossette to Martorelli at 2). Defendant found by on a
preponderance of the evidence that Plaintiff was “unsuitable” to operate as a pawn broker.
(Id.) As a result, Defendant informed Plaintiff that “[e]ffective immediately, your license to
operate in the capacity of a Pawnbroker and/or Precious Metals dealer is hereby revoked.”
(Id.) Plaintiff did not appeal Defendant’s determination, as there was no mechanism for
appeal. (See Pl.’s Dep. 34:13–34:20.)

3

Plaintiff then attempted to sell the New Cook Avenue Pawnshop to Brim Enterprises,
owned by his friend, Brian Dickson. (Pl.’s Dep. at 38:14–38:25.) Dickson was a Connecticut
corrections officer and did not own any businesses at the time. (Id. at 39:16–40:1.) Mr.
Dickson applied for a precious metals permit and pawnbroker’s license, and included either
his and Plaintiff’s sales and tax numbers, or only Plaintiff’s. (Id. at 43:5–45:1.) In either case,
Defendant denied Dickson’s application because use of Plaintiff’s sales and tax numbers, led
Defendant to believe that “[Dickson] was simply trying to perpetuate the plaintiff’s
operation.” (Cossette Aff. ¶ 16.) Plaintiff’s girlfriend Cindy Kenealy’s application for a
pawnshop license using Plaintiff’s sales and use tax number was also denied. (Cossette Aff.
¶¶ 17, 18; Pl’s Dep. at 47:25–48:01). At his deposition, Plaintiff was vague about the terms
and could not give a “ballpark” figure for selling the business to Mr. Dickson, and said the
terms of any sale to Ms. Kenealy would have been “personal.” (Pl.’s Dep. at 39:1–39:11,
49:14–49:19, 46:5–46:8.)
Plaintiff had a verbal agreement with another friend, Mike Cozzolino, to purchase
the New Cook Avenue Pawnshop, which also fell through because Mr. Cozzolino was told
by the police department that if Plaintiff was seen in the building in which the pawnshop was
located, Mr. Cozzolino’s license would be revoked. (Pl.’s Dep. at 46:1–46:1, 46:10–46:19.)
Defendant states that he told Mr. Cozzolino his license application would be granted so long
as Plaintiff did not operate the pawn shop. (Cossette Aff. ¶ 21.)
Plaintiff also believes that a retired officer named “Pete,” from Southington, CT, was
also interested in purchasing the pawnshop. (Id. at 46:24–47:2.) Plaintiff did not know if
“Pete” had actually applied for pawnbroker and precious metals licenses, but believes that
Defendant had refused to meet with “Pete” for eight months. (See id. at 47:3–47:20.)
4

Plaintiff maintains he gave to Defendant the “slips” or forms that the undercover
officer signed certifying that the goods Plaintiff purchased were not stolen, and Defendant
lied and said he had never received them. (Pl.’s Dep. at 28:10–30:17.) Plaintiff’s suspicion
that Defendant’s decision to revoke or not renew his pawnbroker license was influenced by
both the City Manager and Mayor of Meriden lack any evidence. (Id. at 57:14–58:3.)
Plaintiff claims that these facts could support a reasonable inference that Defendant
has deprived Plaintiff of his property without due process of law; that Defendant engaged
in outrageously arbitrary actions which have deprived Plaintiff of substantive due process
of law; and that Defendant deprived Plaintiff of equal protection of the law by treating him
differently than other similarly–situated persons. (Pl.’s Compl. [Doc. # 1]¶ 15.)
II.

Discussion3
A.

Procedural Due Process Claim

Defendant argues that Plaintiff had no constitutionally protected property interest
in either keeping or renewing his pawnbroker’s license, or in the alternative, that Plaintiff
received all the process he was due. Plaintiff claims that once a pawnbroker license had been
granted in accordance with section 21-40 of the Connecticut General Statutes, he had a
constitutionally protected property interest in the license, and it could not be revoked except

3

“Summary judgment is appropriate where, construing all evidence in the light most
favorable to the non-moving party,” Pabon v. Wright, 459 F.3d 241, 247 (2d Cir. 2006), “the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law,” Fed. R. Civ. P. 56(c)(2). An issue of fact is “material” if it “might affect the
outcome of the suit under the governing law,” and is “genuine” if “a reasonable jury could
return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “Unsupported allegations do not create a material issue of fact.”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
5

for cause. Plaintiff also claims that the hearing he was afforded prior to the revocation of his
license was constitutionally inadequate.
1. Whether Plaintiff Has a Constitutionally Protected Property Interest in His
License
“Property interests are created, and their dimensions defined, by state law.” RR
Village Ass’n, Inc. v. Denver Sewer Corp., 826 F.2d 1197, 1201 (2d Cir. 1987)(citing Cleveland
Bd. Of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)). “A state–created entitlement that
cannot properly be eliminated except for cause is a property right of which the holder may
not be deprived without procedural due process. Id. (citing Memphis Gas & Water Div. v.
Craft, 436 U.S. 1, 9 (1978)). However, “if state law makes the pertinent official action
discretionary, one’s interest in a favorable decision does not rise to the level of a property
right entitled to procedural due process protection.” Id. at 1202 (citing Schwartz v. Mayor’s
Comm. on the Judiciary of the City of New York, 816 F.2d 54, 56 (1987); Sullivan v. Town of
Salem, 805 F.2d 81, 84 (2d Cir. 1986)).
Prior to the 2011 amendments, Connecticut General Statute § 21-40 stated, in
relevant part: “the chief of police of any city may grant licenses to suitable persons to be
pawnbrokers . . . and may revoke such licenses for cause; . . . Each license . . . shall continue
one year unless sooner revoked.”4 While applicants for pawnbroker licenses may have no
4

As amended in February 2011, the statute now provides:
(a) The licensing authority of any town or city may grant licenses to suitable
persons to be pawnbrokers in such town or city respectively, and may
suspend or revoke such licenses for cause, which shall include, but not be
limited to, failure to comply with any requirements for licensure specified by
the licensing authority at the time of issuance. . . .
(g) The licensing authority may suspend, revoke or modify any license issued
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constitutionally protected property interest in actually being issued a license, see Aurilio v.
Sweeney, No. CV 980357150S, 1999 WL 171414 at *4 (Conn. Super. Mar. 11, 1999) (aff’d, 761
A.2d 801 (Conn. App. Ct. 2000)), once a license is granted, the license–holder is entitled to
procedural due process if revocation of it is sought prior to its natural expiration date of one
year. See Kuck v. Danaher, 600 F.3d 159, 165 (2d Cir. 2010) (“[P]ermit renewal applicants
are entitled to basic due process protections, including a meaningful opportunity to be heard
after a denial or revocation.”); Spinelli v. City of New York, 579 F.3d 160,169 (2d Cir. 2009)
(“[W]hile a person does not have a protected interest in a possible future business license,
the situation changes once the license is obtained.”).
Because the parties do not dispute that Mr. Martorelli has an unexpired pawnbroker
license at the time it was revoked, (see Ex. E to Def.’s 56(a)1 Stmt), he had an protected
property interest in his license to invoke Due Process protections. The question that remains
is whether the process that he received was constitutionally adequate.
2.

Constitutional Adequacy of the Due Process Hearing

Defendant asserts that Plaintiff received all the process that was due to him, as he was
given a pre–revocation “Due Process Hearing” with prior notice, and an opportunity to be

under this section at any time during the period of the license for good cause
shown, upon notice to the licensee and following a hearing. The licensing
authority shall hold any such hearing not later than five days after the date
of issuance of such notice, and shall issue a decision not more than fourteen
days after any hearing. Any person aggrieved by any action of the licensing
authority in denying, suspending, revoking, modifying or refusing to renew
a license issued pursuant to this section may appeal from such action to the
Superior Court.
Conn. Gen. Stat. § 21-40 (2011).
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meaningfully heard at a meaningful time. Plaintiff claims that the procedural safeguards
employed at the hearing resulted in an “enormous” erroneous deprivation, and he was given
no opportunity to confront and cross–examine his accusers, or to appeal the judgment of
Defendant.
“The touchstone 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.’’” Spinelli,
579 F.3d at 169 (quoting Mathews v. Eldridge, 424 U.S. 319, 348–49 (1976)); see also Joint
Anti–Fascist Comm. v. McGrath, 341 U.S. 123, 171–72 (1951) (Frankfurter, J., concurring)
(“The right to be heard before being condemned to suffer grievous loss of any kind, even
though it may not involve the stigma and hardships of a criminal conviction, is a principle
basic to our society.”). However, due process “‘is not a technical conception with a fixed
content unrelated to time, place, and circumstances.’” Mathews, 424 U.S. at 334 (quoting
Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)). Instead, “‘[d]ue process is flexible
and calls for such procedural protections as the particular situation demands.’” Id. (quoting
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Confronted with the ‘flexible’ nature of due
process, the Supreme Court held in Mathews that the procedural protections required in a
given situation are to be determined by weighing three factors:
“[f]irst, the private interest that will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.”
Id.

8

At oral argument, Defendant claimed that the purpose of Conn. Gen. Stat. § 20-40
is “to ensure or to protect the general welfare from people that are dangerous to the public
welfare, i.e., people who are selling stolen goods,” and that it was important that the Chief
of Police be able to make discretionary decisions quickly in order to protect “the general
welfare.” In Spinelli, the Second Circuit found that the “‘exigent’ circumstances necessitating
‘very prompt action’ on the part of the City were sufficient to justify the City’s failure to
provide Spinelli with pre–deprivation notice or a hearing” before her gun dealer license and
firearms were taken, 579 F.3d at 170, but that she was entitled to a “prompt post–deprivation
hearing.” Id. at 175.
While there is arguably a difference between the public welfare exigencies of revoking
a firearms dealer’s license because of inadequate security at the firearms dealership5 and
revoking a pawnbroker’s license used to fence stolen goods, Plaintiff, unlike Ms. Spinelli,
was given full notice of the hearing to determine his “suitability” to maintain a pawn shop
license (see Cossette Aff. ¶ 7), and he was given the opportunity to be heard “at a meaningful
time and in a meaningful manner,” Mathews, 424 U.S. at 902, in that he was represented by
counsel and had the opportunity to present his “side of the story,” all before his pawnbroker
license was revoked. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“We
have described “the root requirement” of the Due Process Clause as being “that an individual
be given an opportunity for a hearing before he is deprived of any significant property
interest.”).

5

The Second Circuit noted, “[w]ere we to conclude that prompt action was not
required, we would tie the hands of police faced with obvious security lapses at gun stores
until a hearing could be held, and thereby ‘substantially undermine the state interest in
public safety.’” Spinelli, 579 F.3d at 171 (quoting Mackey v. Montrym, 443 U.S. 1, 18 (1979)).
9

Although Plaintiff claims that his pre–deprivation process was inadequate because
he was not permitted to cross–examine adverse witnesses or to present his own witnesses,
he has cited to no cases in which a similar property deprivation required the right to
cross–examine. Further, Plaintiff has put forward no evidence to support his argument that
cross–examination would have made any difference in the Defendant’s decision to revoke
his license, and thus has not shown that the “risk of erroneous deprivation” requires more
process than what he received, that is, a hearing at which he was represented by counsel and
could present his own evidence on his suitability to maintain a pawn shop. See Loudermill,
470 U.S. at 543 n.8 (“[W]here there is an entitlement, a prior hearing facilitates the
consideration of whether a permissible course of action is also an appropriate one. This is
one way in which providing “effective notice and informal hearing permitting the
[employee] to give his version of the events will provide a meaningful hedge against
erroneous action.”). As the Court concludes that Mr. Martorelli has received all of the
process which he was due prior to the revocation of his license, summary judgment will be
granted on this claim.
B.

Substantive Due Process Claim

Defendant also moves for summary judgment on Plaintiff’s substantive due process
claim, arguing that there are no allegations in the Complaint specific to substantive due
process, and that the conduct alleged does not rise to the level of actionable conduct.

10

1.

Duplicativeness Argument

As this Court has previously held, when a plaintiff brings a substantive due process
claim in conjunction with other constitutional claims against a defendant, the substantive
due process claim must raise allegations beyond those encompassed by his or her other
constitutional causes of action. See Saltarella v. Town of Enfield, 427 F. Supp. 2d 62, 75 (2006)
(aff’d, 227 F. App’x 67 (2d Cir. 2007)).
Here, viewing the record in the light most favorable to Plaintiff, the Plaintiff has
alleged facts that go beyond the allegations of his equal protection and procedural due
process claims: specifically, his allegations that Defendant unjustifiably denied the
applications for pawnbroker licenses of potential purchasers of Plaintiff’s business after the
revocation of Plaintiff’s license so that he could not sell his business. (See Compl. ¶¶ 11, 12,
13.) Summary judgment is thus not warranted on this basis.
2.

Substantive Due Process Standard

“Substantive due process is an outer limit on the legitimacy of governmental action.”
Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999). In order to establish a
violation of a right to substantive due process, a plaintiff must demonstrate not only
deprivation of a constitutionally cognizable property right by government action, but also
that the government action was “so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8
(1998). Substantive due process does not protect against government action that is merely
“incorrect or ill–advised,” Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994), and
“substantive due process standards are violated only by conduct that is so outrageously

11

arbitrary as to constitute a gross abuse of governmental authority.” Natale, 170 F.3d at 262
(2d Cir. 1999).
Here, drawing all reasonable inferences in favor of Plaintiff, the record shows that
Plaintiff was unable to sell his business because Defendant refused to grant permit
applications to the individuals interested in purchasing the Cook Avenue Pawnshop from
Plaintiff.6 Defendant apparently concluded that one of the individuals, Mr. Cozzolino, was
a suitable individual for a pawnbroker license, but Defendant wished to be certain that
Plaintiff would not be employed by Mr. Cozzolino,7 and therefore denied Mr. Cozzolino’s
application. Even if Cozzolino would otherwise be considered a “suitable” person for
purposes of Conn. Gen. Stat. § 21-40, if Defendant denied Mr. Cozzolino’s license
purposefully because of suspicion that Cozzolino would employ the Plaintiff, this action does
not rise to the level of an “exercise of [governmental] power without any reasonable
justification in the service of a legitimate governmental objective.” Velez v. Levy, 401 F.3d
75, 94 (2d Cir. 2005) (quoting Sacramento, 523 U.S. at 845–46).
The factual record does not support the shocks–the–conscience standard for
substantive due process violations, and the Court therefore grants Defendant’s motion for
summary judgment.
6

Of the three applicants, “Pete,” of an unknown last name, never applied for a
pawnbroker’s license, and Brim Enterprises and Ms. Kenealy both initially used Plaintiff’s
sales and tax identification number, which caused Defendant to believe that they were both
“trying to perpetuate the plaintiff’s operation.” (See Cossette Aff. ¶¶ 16, 19.) Because of that,
the only real issue would be with respect to Defendant’s denial of a permit to Mr. Cozzolino.
7

Defendant stated in his affidavit that he told Mr. Cozzolino that he would grant his
license application “so long as Mr. Martorelli was not operating the pawnshop.” (Cossette
Aff. ¶ 21.) Plaintiff also claims that Mr. Cozzolino was told that his license would be revoked
if Plaintiff was “seen in that building.” (Pl.’s Dep. at 46:11.)
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C.

“Class of One” Equal Protection Claim

Defendant also argues that summary judgment should be granted on Plaintiff’s “class
of one” equal protection claim, as there is no evidence of disparate treatment or
discriminatory intent on the part of the Defendant, and a rational basis supported
Defendant’s actions. In opposition, Plaintiff argues that his business was treated differently
from Julie’s Pawn, another pawnshop within the City of Meriden.
“The Supreme Court has ‘recognized successful equal protection claims brought by
a ‘class of one,’ where the plaintiff alleges that she [or he] has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference
in treatment.’” Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 58 (2d Cir. 2010)
(cert. denied, 131 S. Ct. 824 (2010)) (quoting Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000) (per curiam)). Within the Second Circuit, “‘[c]lass–of–one plaintiffs must show
an extremely high degree of similarity between themselves and the persons to whom they
compare themselves.’” Id. at 59 (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.
2006)). “‘[T]he standard for determining whether another person’s circumstances are similar
to the plaintiff’s must be . . . whether they are prima facie identical.’” Id. (quoting Neilson v.
D’Angelis, 409 F.3d 100, 104 (2d Cir. 2005) (internal quotation marks omitted), overruled on
other grounds, Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008)). Accordingly, to succeed on
a class–of–one claim, a plaintiff must establish that:
(i) no rational person could regard the circumstances of the plaintiff to differ
from those of a comparator to a degree that would justify the differential
treatment on the basis of a legitimate government policy; and (ii) the

13

similarity in circumstances and difference in treatment are sufficient to
exclude the possibility that the defendants acted on the basis of a mistake.8
Id. at 59–60 (quoting Clubside, 468 F.3d at 159 (internal quotation marks omitted)).
Here, all of Plaintiff’s proposed comparators differ from him in material respects. In
his deposition, Plaintiff identified five pawnshops that did not have their licenses revoked
after being targeted by the same task force that arrested him. Defendant had licensing
authority pursuant to section 21-40 over only one of these establishments, Julie’s Pawn. (See
Pl.’s Dep. at 36:1–36:23, 38:5–38:10.) Although both the manager and an employee of Julie’s
Pawn were arrested by the same task force that targeted Plaintiff, the owner of Julie’s Pawn
was not arrested (id. at 38:7–38:13), and Defendant “did not believe [he] had a legal or
factual basis to revoke the license for J.B.’s [Julie’s] Pawn as the owner was not arrested”
(Cossette Aff. ¶ 14). Plaintiff, the holder of the pawnbroker license for New Cook Pawnshop
was arrested, and the owner (and presumably the holder of the pawnbroker license) of Julie’s
Pawn was not. Further, the decision to arrest Plaintiff, and not the owner of Julie’s Pawn,
cannot be attributed to Defendant, as there is no evidence that either he or any member of
his police department were involved with the task force that conducted the operation which
led to Plaintiff’s arrest. (See Investigation Report at 1.) Accordingly, Plaintiff and the owner

8

The Second Circuit also noted in Ruston that there may now be a third requirement
to succeeding on “class of one” equal protection claims: “The Supreme Court arguably added
a third requirement to ‘class of one’ claims in Engquist v. Or. Dep’t of Agric., 553 U.S. 591
(2008): that the offending governmental action at issue be non–discretionary.” Ruston, 610
F.3d at 58 n.3. Judge Bryant applied this third “non–discretionary” requirement to a case in
which the plaintiff claimed he was treated differently from other similarly–situated
individuals by being arrested. See Faulks v. City of Hartford, No. 3:08–cv–270 (VLB) 2010
WL 259076 at *6–*8 (D. Conn. Jan. 19, 2010) (Bryant, J.).
14

of Julie’s Pawn are not sufficiently similarly situated to permit Plaintiff to succeed on his
“class of one” equal protection claim, and summary judgment will enter for Defendant.
III.

Conclusion
For the reasons discussed above, Defendant’s Motion [Doc. # 34] for Summary

Judgment is GRANTED. The Clerk is directed to close this case.

IT IS SO ORDERED.

/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 30th day of March, 2012.

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