Marshall v. Middlefield et al
RULING granting in part and denying in part 32 Motion for Summary Judgment; denying 36 Motion to Appoint Counsel ; denying 25 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 2/23/2012. (Oliver, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TOWN OF MIDDLEFIELD, et al.,
CIVIL CASE NO.
FEBRUARY 23, 2012
RULING RE: PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
(DOC. NO. 25), DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT
(DOC NO. 32) & PLAINTIFF’S MOTION TO APPOINT COUNSEL (DOC. NO. 36)
The plaintiff, Kerry Marshall (“Marshall”), brings this pro se action against the
Town of Middlefield, Connecticut (“Middlefield”) and Scott Halligan, a Middlefield Town
Constable (“Halligan”), alleging numerous violations of his federal and state
constitutional and statutory rights, as well as a common law tort, in connection with his
receipt of tickets for Operating an Unregistered Motor Vehicle and Failure to Provide
Proof of Insurance on March 10, 2011.
On July 25, 2011, Marshall filed a Motion for Partial Summary Judgment on his
claims of unlawful detention under the Fourth Amendment to the United States
Constitution and Article First, sections seven and nine of the Connecticut Constitution,
as well as his claims of retaliation against protected speech in violation of the First
Amendment to the United State Constitution and Article First, section 4 of the
Connecticut Constitution. Doc. No. 25. Two days after filing the Motion, Marshall was
detained in connection with unrelated federal criminal charges, of which he had been
convicted on May 13, 2011. See Detention Order Pending Sentencing (Doc. No. 180),
United States v. Marshall, Case No. 3:10-cr-14 (JCH) (D. Conn. July 27, 2011); Jury
Verdict (Doc. No. 133), United States v. Marshall, Case No. 3:10-cr-14 (JCH) (D. Conn.
May 13, 2011). He did not, however, file a notice of his change of address until
November 9, 2012. Doc. No. 35.
On October 31, 2011, the defendants filed a Cross Motion for Summary
Judgment on all counts of the Complaint. Doc. No. 32. On December 5, Marshall filed
a Motion to Appoint Counsel. Doc. No. 36. On January 5, 2012, the court issued an
Order directing the clerk to mail copies of the defendants’ Cross Motion and
accompanying submissions to Marshall at the Metropolitan Detention Center in
Brooklyn, New York, and granting Marshall twenty-one days to file a response. Doc.
No. 37. Marshall responded on January 20. See Plaintiff’s Memorandum in Opposition
(Doc. No. 39) (“Pl.’s Mem. in Opp.”).
For the following reasons, the court now denies Marshall’s Motion for Partial
Summary Judgment, grants in part and denies in part the defendants’ Cross Motion for
Summary Judgment, and, finally, denies Marshall’s Motion to Appoint Counsel.
The following facts are undisputed: On the morning of March 10, 2010, Halligan
pulled into the driveway of Marshall’s resident at 465 Main Street, Middlefield,
Connecticut, and parked behind Marshall’s motor vehicle. Affidavit of Kerry L. Marshall,
July 23, 2011 (Doc. No. 25-2) ¶ 3 (“First Marshall Aff.”); Affidavit of Scott Halligan (Doc.
No. 32-1) ¶ 9 (“Halligan Aff.”). Halligan asked Marshall for his license, registration, and
proof of insurance. First Marshall Aff. ¶ 5; Halligan Aff. ¶ 10. Halligan subsequently
ticketed Marshall for Operating an Unregistered Motor Vehicle and Failure to Provide
Proof of Insurance. First Marshall Aff. ¶¶ 4-5; Halligan Aff. ¶¶ 11-13. At some point
during this interaction, Marshall’s brother, Alford Marshall, emerged from the house.
First Marshall Aff. ¶ 6; Halligan Aff. ¶ 11. Also at some point during this interaction,
Halligan contacted additional officers who joined him in Marshall’s driveway. First
Marshall Aff. ¶ 8; Halligan Aff. ¶ 12.
While the parties generally agree on what happened after Halligan pulled into
Marshall’s driveway, they offer entirely divergent narratives of the events that preceded
Halligan’s arrival. Halligan’s account runs as follows: On the morning of March 10, he
was parked in the parking lot of 480 Main Street, running random license plate checks
with his police cruiser’s mobile data terminal. Halligan Aff. ¶ 3. One of the cars in the
parking lot, which Halligan recognized as belonging to Marshall, came up as an
unregistered vehicle. Id. ¶ 5. Halligan waited, parked next to Marshall’s car, for
Marshall to emerge from the adjacent convenience store to discuss the issue of
registration. Id. ¶ 6. Marshall saw Halligan and, upon exiting the store, ran behind the
building in which the store was located. Id. ¶¶ 7-8. Halligan unsuccessfully attempted
to follow Marshall to the rear of the building in his police cruiser. Id. ¶ 8. Marshall
circled the building, got into his car, and drove away. Id. Halligan then followed
Marshall, with his cruiser’s lights flashing, to Marshall’s driveway at 365 Main Street. Id.
Marshall, on the other hand, denies that he was present at any convenience
store on the morning of March 10, denies that he attempted to evade Halligan, denies
that Halligan followed him with activated police lights, and, finally, denies that he had, at
any point that morning, “engaged via key the motor of either [his] Chevy Blazer Truck or
Lexus IS300 or had removed either vehicle onto any public roadway.” Affidavit of Kerry
L. Marshall, January 20, 2012 (Doc. No. 39) ¶¶ 2-3 (“Second Marshal Aff.”). Instead,
Marshall maintains that, when Halligan arrived at his driveway, he was simply “standing
alongside and inspecting [his Lexus].” Id. ¶ 2.
At the time he was ticketed by Halligan, Marshall had a pending civil action
against the Town of Middlefield in connection with a tax dispute. See State Complaint
(Doc. No. 25-4). Marshall claims that, when he suggested that Halligan was ticketing
him in retaliation for filing the suit, Halligan “became nervous and recoiled back to his
police cruiser.” Plaintiff’s Local Rule 56 Statement of Material Facts Not in Dispute
(Doc. No. 25-2) ¶ 4 (“Pl.’s 56(a)(1) St.”). Halligan claims that he “had and still [has] no
personal knowledge or involvement in [Marshall’s] alleged tax dispute with the Town of
Middlefield .” Halligan Aff. ¶ 17.
SUMMARY JUDGMENT STANDARD
On a motion for summary judgment, the burden is on the moving party to
establish that there are no genuine issues of material fact in dispute and that it is
entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986); White v. ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir. 2000). Once
the moving party has met its burden, in order to defeat the motion, the nonmoving party
must “set forth specific facts showing that there is a genuine issue for trial,” Anderson,
477 U.S. at 255, and present such evidence as would allow a jury to find in his favor.
Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
In assessing the record to address questions of fact, the trial court must resolve
all ambiguities and draw all inferences in favor of the party against whom summary
judgment is sought. Anderson, 477 U.S. at 255; Graham, 230 F.3d at 38. Summary
judgment “is properly granted only when no rational finder of fact could find in favor of
the non-moving party.” Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir.
2000). “When reasonable persons, applying the proper legal standards, could differ in
their responses to the question” raised, on the basis of the evidence presented, the
question must be left to the finder of fact. Sologub v. City of New York, 202 F.3d 175,
178 (2d Cir. 2000).
Where a party is proceeding pro se, the court reads the pro se party's papers
liberally and interprets them to raise the strongest arguments suggested therein. See
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Despite this liberal interpretation,
however, an unsupported assertion cannot overcome a properly supported motion for
summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
Section 1983 Claims
Fourth Amendment Claims
Claim Against Halligan
Marshall claims, pursuant to 42 U.S.C. § 1983, that he was unlawfully detained
by Halligan in violation of the Fourth Amendment to the United States Constitution.
Compl. ¶ 15. The Fourth Amendment states that the “right of the people to be secure in
their persons, houses, papers, and effects against unreasonable searches and
seizures, shall not be violated.” U.S. Const., amend. 4. A police officer may briefly
In his Complaint, Marshall does not explicitly state which of his claims are made against
Halligan alone and which are made against both Halligan and Middlefield. In light of its obligation to read
Marshall’s pro se submissions liberally, the court construes every claim as being made against both
Halligan and Middlefield.
detain a suspect, consistent with the Fourth Amendment, when the officer has a
reasonable suspicion that “criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30
(1968). In the context of traffic laws, “reasonable suspicion of a traffic violation provides
a sufficient basis under the Fourth Amendment for law enforcement officers to make a
traffic stop.” U.S. v. Stewart, 551 F.3d 187, 193 (2d Cir. 2009).
While reasonable suspicion is a less demanding standard than probable cause,
“the Fourth Amendment requires at least a minimal level of objective justification for
making the stop.” Illinois v. Wardlaw, 528 U.S. 119, 123 (2000). In assessing the
reasonableness of a Terry stop, the court must consider “‘the totality of the
circumstances’ [in the] case to see whether the detaining officer has a particularized
and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S.
266, 273 (2002) (citations omitted).
The defendants argue that the results of Halligan’s random license plate check in
the parking lot of the convenience store, as well as Marshall’s attempt to evade Halligan
upon exiting the store, provided reasonable suspicion to support a Terry stop. See
Defs.’ Reply Memorandum (Doc. No. 41) at 1-2. The court agrees that, if Halligan’s
testimony were undisputed, no rational trier of fact could find that he lacked a
particularized and objective basis for detaining Marshall.2 Marshall, however, denies
being present at any convenience store on the morning of March 10 and denies that he
Marshall argues that a random license plate check itself amounts to an unreasonable search.
Pl.’s Mem. in Opp. at 1. The court disagrees. The Supreme Court has held that “the exterior of a car . . .
is thrust into the public eye, and thus to examine it does not constitute a search.” New York v. Class, 475
U.S. 106, 114 (1986). The same logic applies to a license plate, which, of course, is affixed to the
exterior of a car. See, e.g., U.S. v. Ellison, 462 F.3d 557, 563 (6th Cir. 2006) (“[S]o long as the officer had
a right to be in a position to observe the defendant’s license plate, any such observation and
corresponding use of the information on the plate does not violate the Fourth Amendment.”);
Olabisiomotosho v. City of Houston, 185 F.3d 521, 529 (5th Cir. 1999) (“A motorist has no privacy interest
in her license plate number.”).
made any attempt to evade Halligan. Thus, the court finds disputed issues of material
fact with regard to the question of whether Halligan’s actions were supported by
reasonable suspicion. Accordingly, the court cannot grant summary judgment to either
party as to Marshall’s Fourth Amendment claim against Halligan.
Claim Against Middlefield
Pursuant to the Supreme Court’s decision in Monell v. Department of Social
Services, a “local government may not be sued under [section 1983] for an injury
inflicted solely by its employees or agents.” 436 U.S. 658, 694 (1978). In other words,
“a city cannot be held liable under [section 1983] on a theory of respondeat superior.”
Amnesty America v. Town of West Hartford, 361 F.3d 113, 125 (2d Cir. 2004). Instead,
section 1983 relief against municipal entities is limited to cases in which a plaintiff’s
injuries are caused by “execution of a government’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy.” Monell, 436 U.S. at 694.
One method of implicating a policymaking official in a subordinate’s actions is to
demonstrate “that the policymaking official was aware of subordinate’s unconstitutional
actions, and consciously chose to ignore them, effectively ratifying the actions.”
Amnesty America, 361 F.3d at 126. “To prove such deliberate indifference, the plaintiff
must show that the need for more or better supervision to protect against constitutional
violations was obvious.” Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995).
“An obvious need may be demonstrated through proof of repeated complaints of civil
rights violations; deliberate indifference may be inferred if the complaints are followed
by no meaningful attempt on the part of the municipality to investigate or to forestall
further incidents.” Id. However, proof of repeated complaints is not required. Amnesty
America, 361 F.3d at 128. A policymaker’s failure to respond to a single incident may
constitute a municipal policy if the plaintiff’s evidence established that the incident,
standing alone, made the need for corrective action or supervision “obvious,” and that
the policymaker’s failure to investigate or rectify the situation was the result of a
conscious choice “rather than mere negligence or bureaucratic inaction.” Id.
In his Complaint, Marshall alleges that, “having previously received complaints
with respect to the conduct of it[s] Constable(s), [Middlefield] failed or neglected to
sufficiently supervise Halligan with respect to having sufficient reasonable cause to
conduct a Terry stop . . . .” Compl. ¶ 20(d). In his response to the defendants’ Cross
Motion for Summary Judgment, however, Marshall points to no evidence of these past
complaints, nor does he specify how many were made, when they were made, or by
whom they were made. The only complaint regarding Halligan of which there is any
evidence in the record is Marshall’s own. Marshall attests that, following the March 10
incident, he contacted Halligan’s superior, the Middlefield Resident Trooper, and “was
met with what amounted to a rebuke and no actions taken.” First Marshall Affidavit ¶ 9.
He described this interaction in more detail in his Complaint, noting that the Resident
Trooper, Thomas Topulos (“Topulos”), engaged in “about 45 minutes of alleged
investigation” and then told Marshall “that he believed Halligan and would do nothing
further about the matter.” Compl. ¶ 11.
No rational trier of fact could find that Marshall’s complaint to the Resident
Trooper, standing alone, put Topulos on notice of an “obvious” need for additional
supervision or other corrective action. Nor could a rational trier of fact find that
Topulos’s decision, after a brief investigation, to accept Halligan’s version of events over
Marshall’s amounted to deliberate indifference to Marshall’s constitutional rights. Cf.
Amnesty America, 361 F.3d at 128 (finding that the need for corrective action could be
considered obvious where a police supervisor allegedly witnessed a brutal and
“blatantly unconstitutional” beating of the plaintiff demonstrators by his subordinates).
Accordingly, the court grants summary judgment for the defendants with respect to
Marshall’s Fourth Amendment claim against Middlefield.
First Amendment Retaliation Claims
The court next addresses Marshall’s claim that Halligan and Middlefield violated
the First Amendment to the United States Constitution by detaining him in retaliation for
his pending civil suit against the town. Compl. ¶ 16. To prevail on a First Amendment
retaliation claim, a plaintiff must prove that “(1) he has an interest protected by the First
Amendment; (2) defendants’ actions were motivated or substantially caused by his
exercise of that right; and (3) defendants’ actions effectively chilled the exercise of his
First Amendment right.” Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
Based on the record before the court, no rational juror could find that Halligan’s
actions were “motivated or substantially caused” by Marshall’s exercise of his First
Amendment rights. As noted earlier, Halligan denies any knowledge of Marshall’s
pending action against Middlefield. Halligan Aff. ¶ 17. The only evidence Marshall
offers to refute that claim is his observation that, when he accused Halligan of
retaliation, Halligan “appeared nervous.” First Marshall Aff. ¶ 8. This is insufficient to
survive summary judgment. See Curley, 268 F.3d at 73 (“Specific proof of improper
motivation is required in order for plaintiff to survive summary judgment on a First
Amendment retaliation claim.”).
Additionally, Marshall has failed to establish that his First Amendment rights were
actually chilled by Halligan’s actions. Marshall claims that Halligan’s actions caused
him “public embarrassment, diminished health, pain and suffering, diminished health,
emotional distress and duress,” Compl. ¶ 16(d), but he does not claim that they led to
any change in his behavior. He does not allege, for instance, that he dropped his suit
against Middlefield in response to his receipt of the tickets, or even that he pursued the
suit with less vigor. Curley, 268 F.3d at 73 (“Where a party can show no change in his
behavior he has quite plainly shown no chilling of his First Amendment right to free
speech.”); see also Spear v. Town of West Hartford, 954 F.2d 63, 67 (2d Cir. 1992)
(finding no chill where, after the filing of a lawsuit against him in response to a critical
editorial, the plaintiff continued to write similar editorials).
Because Marshall has failed to adduce sufficient evidence to establish either (1)
that Halligan’s actions were motivated by Marshall’s filing of a lawsuit against
Middlefield, or (2) that Halligan’s actions had any effect on Marshall’s subsequent
exercise of his First Amendment rights, the court grants summary judgment for the
defendants with respect to Marshall’s First Amendment retaliation claims.
Equal Protection Claims
Marshall does not specifically plead that Halligan violated his right to equal
protection under the Fourteenth Amendment of the United States Constitution. He
does, however, make multiple references to racial profiling, Compl. ¶¶ 1, 20(d), and
cites a Connecticut statute, the Alvin W. Penn Racial Profiling Prohibition Act, as
providing the court with jurisdiction over his case. 3 Compl. ¶ 4. Such claims are
properly subject to equal protection analysis. See Simmons v. Love, No. 3:09-cv-1218
(WWE), 2012 WL 113665, at *5 (D. Conn. Jan. 12, 2012) (“Constitutional claims
alleging racial profiling are subject to the analysis of the Fourteenth Amendment Equal
Protection Clause.”). Additionally, Marshall alleges that “Middlefield acted with
deliberate indifference to [his] equal protection . . . rights” by failing to supervise
Halligan. Compl. ¶ 20(d). This necessarily implies that Halligan’s own actions, which
Middlefield failed to supervise, violated Marshall’s equal protection rights. Accordingly,
the court construes the Complaint as alleging equal protection violations by both
Halligan and Middlefield.
“To state a race-based claim under the Equal Protection Clause, a plaintiff must
allege that a government actor intentionally discriminated against him on the basis of his
race.” Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000). “A plaintiff alleging
a claim of selective prosecution in violation of the Equal Protection Clause must plead
and establish the existence of similarly situated individuals who were not prosecuted;
that is because courts grant special deference to the executive branch in the
performance of the core executive function of deciding whether to prosecute.” Pyke v.
Cuomo, 258 F.3d 107, 109 (2d Cir. 2001); see also Azana v. City of West Haven, No.
3:10-cv-883 (JBA), 2012 WL 264559, at *9-10 (D. Conn. Jan. 27, 2012) (granting
summary judgment for defendants where Hispanic plaintiffs alleging that they were
arrested as a result of racial profiling could point to no facts in the record showing that
The Alvin W. Penn Racial Profiling Prohibition Act prohibits law enforcement officers from
engaging in racial profiling and imposes certain reporting requirements on municipalities with regard to
racial profiling complaints. See generally Conn. Gen. Stats. § 54-1l & 54-1m. The court finds no authority
to suggest that the statute provides a private right of action to enforce its requirements.
similarly situated non-Hispanic individuals were treated differently).
Here, Marshall’s claims of racial profiling amount to allegations that facially
neutral traffic laws were applied to him in a racially discriminatory manner. Yet he
presents no evidence that he was treated differently than individuals of other races with
unregistered vehicles. As a result, the court grants summary judgment for the
defendants with respect to Marshall’s equal protection claims.
Marshall next alleges that Halligan “conspired with Middlefield Town Officials to
injure, oppress, and intimidate [him] in the free exercise of his First Amendment right
regarding his motor vehicle tax actions against Middlefield.” Compl. ¶ 18. As a basis
for this claim, Marshall cites a criminal conspiracy statute, 18 U.S.C. § 241. Id. Section
241, however, is a criminal statute and does not provide a private right of action. Burke
v. APT Foundation, 509 F. Supp. 2d 169, 173 (D. Conn. 2007).
Earlier in his Complaint, however, Marshall alleges that the court has jurisdiction
over this action under 42 U.S.C. § 1985, a civil conspiracy statute. Compl. ¶ 4. In light
of its obligation to interpret Marshall’s submissions to raise the strongest arguments
they suggest, the court construes Marshall’s Complaint as alleging violations of section
1985 by Halligan and Middlefield.
There are two subsections of section 1985 that might be considered applicable to
this case. The second clause of section 1985(2) is specifically aimed at attempts to
interfere with state court proceedings. It provides a right to sue “if two or more persons
conspire for the purpose of impeding, hindering, obstructing, or defeating, in any
manner, the due course of justice in any State or Territory, with intent to deny to any
citizen the equal protection of the laws, or to injure him or his property for lawfully
enforcing, or attempting to enforce, the right of any person, or class of persons, to the
equal protection of the laws . . . . .” 42 U.S.C. § 1985(2). Section 1985(3) provides a
more general right to sue “[i]f two or more persons in any State or Territory conspire . . .
for the purpose of depriving, either directly or indirectly, any person or class of persons
of the equal protection of the laws, or of equal privileges and immunities under the
laws.” 42 U.S.C. § 1985(3).
The court finds it unnecessary to decide which subsection is best applied to
Marshall’s claim because, under either provision, a plaintiff “states a viable cause of
action . . . only by alleging a deprivation of his rights on account of his membership in a
particular class of individuals.” Zemsky v. City of New York, 821 F.2d 148, 151 (2d. Cir.
1987). In other words, in order to make out a valid section 1985 claim, Marshall must
adduce evidence sufficient to establish not only that defendants conspired to violate his
Fourth or First Amendment Rights, but also that this conspiracy was motivated by
“some racial or perhaps otherwise class-based, invidiously discriminatory animus.”
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)
As already discussed in the context of Marshall’s equal protection claims,
Marshall makes conclusory allegations of racial profiling, but he adduces no specific
evidence to support an inference that the defendants were motivated by racial animus.
See Grillo v. New York City Transit Authority, 291 F.3d 231, 234 (2002) (holding that in
order to survive summary judgment on a section 1985 claim, a plaintiff must come
forward with “at least some credible evidence” that the actions of the defendants were
motivated by racial animus); Young v. McGill, No. 09-cv-1205 (CSH), 2011 WL
6223042, at *5 (D. Conn. Dec. 8, 2011) (granting summary judgment where the plaintiff
failed to allege “any facts suggesting that any actions were taken because of his race”
but instead “contend[ed] that treatment was denied in retaliation for his many complaints
and grievances”). Accordingly, the court grants summary judgment for the defendants
with respect to Marshall’s conspiracy claims.
Marshall next alleges that Halligan “caused a libelous report to generate publicly
on the internet via the court’s electronic docket . . . as a result of his unlawful Terry Stop
or detention.” Compl. ¶ 17.
As the Connecticut Supreme Court has noted, “it has long been established that
there is an absolute privilege for statements made in judicial proceedings.” Petyan v.
Ellis, 200 Conn. 243, 245 (1986). “The effect of an absolute privilege is that damages
cannot be recovered for a defamatory statement even if it is published falsely and
maliciously.” Id. at 256. Because any documents that Halligan uploaded to a state
court docket regarding Marshall’s tickets would undoubtedly be considered made in the
course of a judicial proceeding, the court finds that Halligan is entitled to absolute
privilege with regard to any statements contained therein and grants summary judgment
for the defendants with regard to Marshall’s libel claims.
Connecticut Constitutional Claims
Along with his claims under the First, Fourth, and Fourteenth Amendments of the
United States Constitution, Marshall alleges violations of parallel provisions of the
Connecticut Constitution: Article First, sections four, seven, nine, and twenty. 4 Compl.
¶ 4. As explained below, the court finds that Marshall is not entitled to an action for
money damages under any of these state constitutional provisions.
Article First, Sections Seven and Nine
Article First, sections seven and nine prohibit, respectively, unreasonable
searches and seizures and unlawful arrests and detentions.5 In Binette v. Sabo, 244
Conn. 23 (1998), the Connecticut Supreme Court recognized a private right of action
under sections seven and nine for a pair of plaintiffs who claimed that they were
severely brutalized by police officers during a warrantless entry of their home. See
Binette, 244 Conn. at 45-46 (recognizing right of action); id. at 26 (detailing plaintiffs’
allegations that an officer repeatedly slammed one plaintiff’s head against a car and
then struck him on the head and kicked him while he was lying on the ground
experiencing an epileptic seizure).
The Binette Court expressly “declined to create an all-encompassing damages
action for any and all alleged violations of state constitutional provisions.” ATC
Partnership v. Town of Windham, 251 Conn. 597, 613 (1999). Instead, it held that
Marshall cites Article XXI of the Amendments to the Connecticut Constitution to support his
state equal protection claim, rather than Article First, section twenty. Compl. ¶ 4. Article XXI of the
Amendments, however, served simply to amend the existing equal protection clause of Article First,
section twenty to include discrimination based on physical and mental disability. See State v. Riddick, 61
Conn. App. 275, 285 (2001) (“The equal protection clause of the Connecticut constitution, article first, §
20, as amended by article twenty-one of the amendments, provides: ‘No person shall be denied the equal
protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his
or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or
mental disability.’”). Consequently, the court reads Marshall’s Complaint as raising a claim under Article
First, section twenty.
Article First, section seven states: “The people shall be secure in their persons, houses, papers
and possessions from unreasonable searches or seizures; and no warrant to search any place, or to
seize any person or things, shall issue without describing them as nearly as may be, nor without probable
cause supported by oath or affirmation.” Article First, section nine states: “No person shall be arrested,
detained or punished, except in cases clearly warranted by law.”
“whether such a cause of action should be recognized would be determined on a caseby-case basis.” Id. In subsequent cases, Connecticut courts have emphasized the
extreme nature of the alleged conduct in Binette and declined to recognize a private
right of action for less egregious violations. See, e.g., id. at 613 (noting that the Binette
decision was made “in the context of allegations of an egregiously unreasonable search
and seizure”); Bauer v. City of Hartford, No. 3:07-cv-1375 (PCD), 2010 WL 4429697, at
*12 (D. Conn. Oct. 29, 2010) (holding that, even if the defendant police officers’ entry
into the plaintiff’s home “were illegal . . . that fact does not rise to the level of
egregiousness necessary to sustain a claim under the Connecticut Constitution”);
Faulks, Jr. v. City of Hartford, No. 3:08-cv-270 (VLB), 2010 WL 259076, at *10 (D.
Conn. Jan. 19, 2010) (finding no right of action where defendant officers’ alleged
misconduct “involve[d] no physical confrontation akin to the level of force at issue in
Binette”); Martin v. Brady, 64 Conn. App. 433, 442 (2001) (“Apart from the illegality of
the entry, the plaintiff complains of having been pushed to the ground on one occasion
and of having windows and doors smashed on another occasion. We are not
persuaded that these allegations, if true, rise to the legal of egregious misconduct.”).
Here, Marshall claims that Halligan unlawfully entered his private driveway and
detained him without reasonable suspicion, but he does not allege that Halligan
physically abused him or even attempted to physically restrain him in any way. Nor
does Marshall allege that Halligan entered his house. The court finds that this alleged
conduct is insufficiently egregious to justify a Binette claim. Summary judgment is thus
granted for the defendants with respect to Marshall’s claims under Article First, sections
seven and nine.
Article First, Sections Four and Twenty
Article First, section four provides that “[e]very citizen may freely speak, write,
and publish his sentiments on all subjects, being responsible for the abuse of that
liberty.” Article First, section twenty states that “[n]o person shall be denied the equal
protection of the law nor be subjected to segregation or discrimination in the exercise or
enjoyment of his civil or political rights because of religions, race, color, ancestry or
The court finds no cases in which a Connecticut court has recognized a private
right of action for money damages under either section four or twenty and multiple
cases in which courts have expressly declined to recognize such claims. See, e.g.,
Spector v. Board of Trustees of Community-Technical Colleges, 463 F. Supp. 2d 234,
254 (D. Conn. 2006) (finding no private right of action under section twenty); Wylie v.
West Haven, No. CV065006403, 2010 WL 2196493, at *2 (Conn. Super. Apr. 21, 2010)
(collecting Superior Court cases finding no private right of action under section twenty);
McKiernan v. Amento, No. CV010453718S, 2003 WL 22333200, at *4 (Conn. Super.
Oct. 2, 2003) (collecting Superior Court cases finding no private right of action under
section four); Lopez v. Smiley, 375 F. Supp. 2d 19, 24 n.2 (D. Conn. 2005) (finding no
cases in which a Connecticut state court recognized a claim for money damages under
section four). Accordingly, the court grants summary judgment for the defendants with
respect to Marshall’s claims under Article First, sections four and twenty.
Motion to Appoint Counsel
Finally, the court addresses Marshall’s Motion to Appoint Counsel. Doc. No. 36.
In a civil matter, “the court may request an attorney to represent any person unable to
employ counsel.” 28 U.S.C. § 1915(e)(1). A district judge has “[b]road discretion . . . in
deciding whether to appoint counsel pursuant to this provision.” Hodge v. Police
Officers, 802 F.2d 58, 60 (2d Cir. 1986). In deciding whether to appoint counsel, the
should first determine whether the indigent's position seems likely to be of
substance. If the claim meets this threshold requirement, the court should
then consider the indigent's ability to investigate the crucial facts, whether
conflicting evidence implicating the need for cross-examination will be the
major proof presented to the fact finder, the indigent's ability to present the
case, the complexity of the legal issues and any special reason in that
case why appointment of counsel would be more likely to lead to a just
Id. at 61-62. The Second Circuit has stressed that “courts should not grant [Motions to
Appoint Counsel] indiscriminately.” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172
(2d Cir. 1989); see also id. (“Volunteer lawyer time is a precious commodity . . . . [and]
should not be allocated arbitrarily, or on the basis of the aggressiveness of and tenacity
of the claimaint.”).
In considering whether Marshall’s position is “likely to be of substance,” the court
notes that one count of the Complaint—Marshall’s claim that Halligan detained him
without reasonable suspicion in violation of the Fourth Amendment—has withstood a
motion for summary judgment. However, this fact alone does not entitle Marshall to
counsel. Crenshaw v. Herbert, 409 Fed. Appx. 428, 430 (2d Cir. 2011) (“[W]ithstanding
a motion for summary judgment is not always enough.”); Hodge, 802 F.2d at 60 (“If
mere bald assertions by an indigent, which technically put a fact in issue and suffice to
avert summary judgment, required appointment of [counsel], the demand for such
representation could be overwhelming.”). Here, the only material evidence in support of
Marshall’s claim is that featured in his own affidavit.
Furthermore, even assuming that Marshall’s case does pass the threshold
requirement of merit, the court finds that other Hodge factors weigh against appointing
counsel. First, the primary issue in dispute—whether Halligan had reasonable
suspicion to justify entering Marshall’s driveway and ticketing him—is not legally
complex and ultimately rests on a credibility determination with regard to Marshall’s and
Halligan’s competing testimony. Crenshaw v. Herbert, 409 Fed. Appx. 428, 430 (2d Cir.
2011) (finding a case “suitable for pro se litigation” where “it was clear that [the
plaintiff’s] claims lacked procedural, technical, or legal complexity, required little or no
factual investigation, and ultimately rested on a pure credibility determination”).
Additionally, the court has no doubt of the plaintiff’s “ability to present the case.”
Hodge, 802 F.2d at 62. The court is familiar with Marshall, having presided over his
recent criminal trial. In that case, the court made three successive appointments of CJA
counsel for Marshall, but he ultimately chose to represent himself. At his subsequent
trial and sentencing, Marshall demonstrated that he is fully capable of researching and
presenting both written and oral legal arguments. See Crenshaw, 409 Fed. Appx. at
431 (finding that district court did not abuse its discretion by refusing to appoint counsel
for an incarcerated plaintiff who had demonstrated competence at past conferences and
via written submissions to the court).
In light of the case’s lack of legal complexity and Marshall’s demonstrated ability
(and desire) to litigate on his own behalf, the Motion to Appoint Counsel is denied.
For the foregoing reasons, the plaintiff’s Motion for Partial Summary Judgment
(Doc. No. 25) and Motion to Appoint Counsel (Doc. No. 36) are denied. Additionally,
the defendants’ Cross Motion for Summary Judgment (Doc. No. 32) is granted in part
and denied in part. Summary judgment is granted for the defendants with respect to all
counts of the Complaint except Marshall’s Fourth Amendment claim against defendant
Dated at Bridgeport, Connecticut, this 23rd day of February, 2012.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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