Westbrook v. Meriden et al
ORDER granting 17 Motion to Dismiss. See Ruling on Defendants' Motion to Dismiss, attached. Signed by Judge Thomas P. Smith on January 16, 2013. (Pylman, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICKIE WESTBROOK, SR.,
CIVIL NO. 3:10-CV-1329 (TPS)
CITY OF MERIDEN,
MICHAEL S. ROHDE, MAYOR
MERIDEN POLICE DEPARTMENT,
CHIEF JEFFRY COSSETTE,
SERGEANT LESTER ZIMNOCH and
OFFICER GARY SZLACHETKA,
RULING ON DEFENDANTS' MOTION TO DISMISS
The pro se plaintiff, Rickie Westbrook, Sr., brings this
action against defendants City of Meriden ("City"), Meriden Police
Department1, Michael S. Rohde, Mayor of Meriden ("Mayor Rohde"),
Chief Jeffry Cossette ("Chief Cossette"), Sergeant Lester Zimnoch
Szlachetka") in their individual and official capacities.
Although a municipality is subject to suit pursuant to 42
U.S.C. § 1983, a municipal police department is not a
municipality. See Monell v. Department of Social Services, 436
U.S. 658, 690 (1978). A police department is a sub-unit or agency
of the municipal government through which the municipality
fulfills its policing function. See Cowras v. Hard Copy, Case
No. 3:95cv99 (AHN), slip op. at 25 (D. Conn. Sept. 29, 1997).
Because a municipal police department is not an independent legal
entity, it is not subject to suit under § 1983. Accordingly, the
plaintiff's claims against the Meriden Police Department are
defendants under the United States Constitution and the Americans
with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), pursuant
to 42 U.S.C. § 1983.
Currently pending before the Court is the
defendants' motion to dismiss plaintiff's complaint for failure to
state a claim upon which relief can be granted pursuant to Fed.R.
For the reasons stated below, the defendants'
Motion to Dismiss (Dkt. # 17) is GRANTED.
The following facts are taken from the plaintiff's complaint
approximately 1:00 a.m., officers of the Meriden Police Department,
residence and found a bag of marijuana under a bed in which the
controlled substance in violation of Connecticut General Statutes
§ 21a-279 (c). Prior to his conviction, the plaintiff was detained
for about three days by the Meriden Police Department. Thereafter,
on August 23, 2010, the plaintiff commenced this action, alleging
various violations of his rights by the defendants during his
arrest and detention.
Standard of Review
A motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) is designed “merely to assess the legal feasibility
of a complaint, not to assay the weight of evidence which might be
offered in support thereof.”
Ryder Energy Distribution Corp. v.
Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)
(quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)).
When deciding a motion to dismiss pursuant to Rule 12(b)(6),
the Court must accept the material facts alleged in the complaint
as true, draw all reasonable inferences in favor of the plaintiffs,
and decide whether it is plausible that plaintiffs have a valid
claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Leeds v.
Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
Under Twombly, “[f]actual allegations must be enough to raise
a right to relief above the speculative level,” and assert a cause
of action with enough heft to show entitlement to relief and
“enough facts to state a claim to relief that is plausible on its
550 U.S. at 555, 570; see also Iqbal, 556 U.S. at 679
(“While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”). The plausibility
standard set forth in Twombly and Iqbal obligates the plaintiffs to
“provide the grounds of [their] entitlement to relief” through more
than “labels and conclusions, and a formulaic recitation of the
(quotation marks omitted).
Plausibility at the pleading stage is
complaint may proceed even if it strikes a savvy judge that actual
proof of [the claims] is improbable, and . . . recovery is very
remote and unlikely.”
Id. at 556 (quotation marks omitted).
Although the plaintiff's claims are neither divided into
separate counts nor directed against the various defendants with
any specificity, the plaintiff appears to allege the following
against the City and its employees in their individual and official
cruel and unusual
violation of the Eighth Amendment, (2) claims for unlawful search,
wrongful arrest and "failure to read . . . rights," ostensibly in
violation of the Fourth and/or Fifth Amendments, (3) claims for
Protection clauses of the Fourteenth Amendment and (4) a claim for
discriminatory treatment under the ADA.
The defendants have moved
to dismiss these claims on the basis that the plaintiff has failed
to state any claim upon which relief can be granted, as well as for
the additional reasons that under
Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 694 (1978), other relevant law and the defense of
qualified immunity, neither the City nor its employees in their
individual or official capacities can be held liable in this
"In order to prevail on a claim against a municipality under
section 1983 based on acts of a public official, a plaintiff is
required to prove: (1) actions taken under color of law; (2)
deprivation of a constitutional or statutory right; (3) causation;
(4) damages; and (5) that an official policy of the municipality
caused the constitutional injury."
Roe v. City of Waterbury, 542
f.3d 31, 36 (2d Cir. 2008) (citing Monell, 436 U.S. at 690-91).
this end, the plaintiff's pleading is deficient in two major
The plaintiff has failed to adequately state a claim
upon which relief can be granted such that a jury might plausibly
find a deprivation of a constitutional or statutory right in this
The legal insufficiency of those claims are detailed
Moreover, the plaintiff has failed to plead that his
purported injuries were the result of an official municipal policy
or custom, nor does the isolated incident recounted here plausibly
lend itself to the conclusion that the City engaged in such
Accordingly, this Court concludes that the
Plaintiff's Constitutional Claims
The Eighth Amendment protection against cruel and unusual
punishment, which the plaintiff invokes here, applies only after
See generally City of Revere v. Massachusetts General
Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605
(1983); Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir. 1991).
one whose rights were purportedly violated prior to conviction, the
plaintiff's recourse is through the Due Process Clause, not the
See generally City of Revere v. Massachusetts
General Hospital, 463 U.S. at 244, 103 S.Ct. at 2983; Bryant v.
Maffucci, 923 F.2d at 983.
Accordingly, the plaintiff has failed
in this instance to state a claim upon which relief can be granted.
Likewise, the plaintiff's allegations that his rights were
wrongful arrest, and failure to render a Miranda warning are also
In regard to the plaintiff's allegation of
unlawful search, the United States Supreme Court has stated in Heck
v. Humphrey, 512 U.S. 477 (1994), that "in order to recover damages
for . . . harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct appeal . .
. or called into question by a federal court's issuance of a writ
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983."
controlled substance in violation of General Statutes § 21a-279 (c)
consequently the plaintiff has failed to state a claim upon which
relief can be granted in this respect.
In regard to the plaintiff's wrongful arrest claim, it is well
settled in the Second Circuit that in order to prevail on a cause
of action for false arrest or malicious prosecution, a plaintiff
must prove that the underlying criminal proceeding terminated in
Roesch v. Otarola, 980 F.2d 850, 852 (2d Cir. 1992).
A criminal proceeding terminates in favor of the plaintiff only
when its "final disposition is such as to indicate the accused is
Singleton v. City of New York, 632 F.2d 185, 193 (2d
In this case, the plaintiff plead guilty to the
possession charge and as a result, the plaintiff's allegation of
wrongful arrest is not a claim upon which relief can be granted.
The plaintiff has also failed to state a cognizable claim for
the defendants' purported failure to read his rights to him at his
arrest. Failure to inform plaintiffs of their rights under Miranda
. . . does not, without more, result in § 1983 liability.
constitutional right to receive Miranda warnings.
See New York v.
Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)
(defendant does not have a constitutional right to receive Miranda
warnings because warnings are only a procedural safeguard designed
to protect a person's right against self-incrimination).
remedy for a violation of the right against self-incrimination is
"the exclusion from evidence of any ensuing self-incriminating
statements" and "not a § 1983 action."
Neighbour v. Covert, 68
F.3d 1508, 1510 (2d Cir. 1995) (per curiam), cert. denied, 516 U.S.
1174, 116 S.Ct. 1267, 134 L.Ed.2d 214 (1996).
may exist under the Fifth Amendment self-incrimination clause if
coercion was applied to obtain a waiver of . . . plaintiff['s]
rights against self-incrimination," such an allegation was not made
Deshawn E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998).
plaintiff has therefore failed in this respect to state a claim
upon which relief can be granted.
Nor will the plaintiff find the reprieve he seeks in the Due
protection by selective enforcement arises if: (1) the person,
compared with others similarly situated, was selectively treated;
and (2) . . . such selective treatment was based on impermissible
considerations such as race, religion, intent to inhibit or punish
the exercise of constitutional rights, or malicious or bad faith
intent to injure a person.
LaTrieste Restaurant & Cabaret Inc. v.
Village of Port Chester, 40 F.3d 597, 590 (2d Cir. 1994) (quoting
LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980), cert.
denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981).
this instance, the plaintiff does not allege selective treatment
based upon any kind of impermissible consideration. In the absence
of the essential allegation that others were treated differently
based on an unlawful consideration, the plaintiff's complaint is
wholly insufficient to state an equal protection claim.
Parts v. Johnson, 758 F.2d 54, 61 (2d Cir. 1985).
To prevail on a procedural due process claim, which the
plaintiff also asserts here, one must first identify a property
establish whether that property interest was deprived without due
See Mathews v. Eldrige, 424 U.S. 319, 96 S.Ct. 893, 47
L.Ed.2d 18 (1976).
Here, the plaintiff has not asserted that he
was deprived of a constitutionally protected property interest,
much less identified a property interest at stake in this matter.
In the absence of alleging what sort of process he is entitled to
or how it was denied, the plaintiff has failed to adequately state
a claim upon which relief can be granted.
See Russo v. City of
Hartford, 158 F.Supp.2d 214, 232 (D. Conn. 2001) (concluding that
plaintiff who failed to allege the sort of process he was entitled
or how such entitlement was denied to him asserted nothing more
than bald assertions and conclusions of law, which did not suffice
to state a claim).
"It is for violations of . . . constitutional and
statutory rights that 42 U.S.C. § 1983 authorizes redress; that
section is not itself a source of substantive rights, but a method
for vindicating federal rights elsewhere conferred by those parts
of the United States Constitution and federal statutes that it
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).
sufficiently plead a violation of a federal right, and as a result,
his substantive due process claim is also legally insufficient.
Plaintiff's ADA Claim
The plaintiff also argues that the defendants violated his
rights under the ADA by denying him medication and warm clothing
during his term of detention. In order for the plaintiff to
disability, (2) that the defendants are subject to the ADA, and (3)
that he was denied the opportunity to participate in or benefit
otherwise discriminated against by the defendants, by reason of his
See Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998).
For the following reasons, this Court concludes that the plaintiff
has failed to state a prima facie ADA claim upon which relief can
As an initial matter, and in regard to the second criterion,
a claim under the ADA cannot be asserted against an individual,
regardless of whether it is made against that individual in her
official or individual capacity.
See e.g., Menes v. CUNY Univ. Of
New York, 92 F.Supp.2d, 306 (S.D.N.Y 2000).
Rather, by its terms,
the ADA prohibits a "public entity," such as a municipality, from
discriminating against a qualified individual with a disability.
42 U.S.C. § 12131. Accordingly, the plaintiff cannot assert an ADA
claim against Mayor Rohde, Chief Cossette, Sergeant Zimnoch and
Officer Szlachetka in their individual or official capacity.
Yet even the plaintiff's ADA claim against the City is legally
Crucially, the plaintiff does not establish that he
is a qualified individual with a disability.
"Merely having an
impairment does not make one disabled for purposes of the ADA.
Claimants also need to demonstrate that the impairments limits a
major life activity.
See 42 U.S.C. § 12012(2)(A) (1994 ed.). . .
To qualify as disabled, a claimant must further show that the
limitation on the major life activity is "substantia[l]."
U.S.C. § 12012(2)(A). See Toyota Motor Mfg., Ky. Inc. v. Williams,
534 U.S. 184, 195, 122 S.Ct. 681 (2002).
Here, the plaintiff generally alleges that he suffers from
"health problems," "medical conditions an[d] disabilities." To the
extent the plaintiff identifies specific ailments– namely, angina,
lactose intolerance and fourteen missing teeth– he fails to plead
that these physical conditions substantially limit a major life
"Major [l]ife activities means functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing,
1630.2(i). A jury could not plausibly conclude that any of the
plaintiff's purported ailments qualify him as disabled within the
meaning of, and to the extent contemplated by, the Act.
more, this Court cannot find that the plaintiff has stated a prima
facie ADA claim against the City upon which relief can be granted.
Plaintiff's Claims are Barred
Defense of Qualified Immunity.
The plaintiff's allegations under the ADA and United States
Constitutions are legally insufficient as a matter of law, but the
dismissal of those claims against the City and its employees in
both their official and individual capacities are doubly justified
under Monell and the defense of qualified immunity.
even assuming, arguendo, that the plaintiff has stated a claim upon
which relief can be granted, his claims against the defendants are
Section 1983 claims brought against municipal employees sued
in their official capacity are treated as claims against the
See Seri v. Town of Newtown, 573 F.Supp.2d
661, 671 (D. Conn. 2008).
A plaintiff can only sue a municipality
1983 for constitutional
employees occurring pursuant to an official policy or custom.
"Specifically, Monell's policy or custom requirement is satisfied
where a local government has acquiesced in or tacitly authorized
its subordinates' unlawful actions . . . Such a pattern, if
sufficiently persistent or widespread as to acquire the force of a
law, may constitute a policy or custom within the meaning of
Reynolds v. Guiliani, 506 F.3d 183, 192 (2d Cir. 2007)
Moreover, in order to state a cognizable
claim against a municipality, a plaintiff must allege facts showing
that he was denied his constitutional right as a result of an
official policy or custom. See Garcia v. Rosario, No. 3:10-cv-795,
2010 WL 3724281, at *1 (D. Conn. Sept. 15, 2010) ("The city cannot
be held liable just because it employs the officers who allegedly
violated [plaintiff's] rights. There must be a direct casual link
between municipal policy or custom, and the alleged constitutional
deprivation.") (Internal quotation marks and citation omitted).
Here, the plaintiff has failed to allege facts showing that
his rights were denied as a result of the City's official policy or
custom, much less even superficially plead that such a policy or
custom exists in the first place.
Nor is it conceivable that such
a claim could be plead in this instance with the requisite legal
sufficiency to survive a motion to dismiss.
purported injuries stem from a single, isolated incident, namely,
Without alleging more than one solitary occurrence of
misconduct, the plaintiff cannot establish that he was denied a
constitutional or statutory right as the result of an official
municipal policy or custom.
See Villante v. Dept. of Corrections
of City of New York, et al., 786 F.2d 516, 519 (2d Cir. 1986)
(stating "an isolated act of excessive force by a single, nonpolicymaking municipal employee, standing alone, is insufficient
evidence" to establish policy or custom).
Therefore, even if the
plaintiff had stated a claim upon which relief could be granted,
the plaintiff would, nonetheless, have no recourse against the City
and its employees in the absence of an official policy or custom
infringing upon those rights.
The plaintiff's claims against the
City and its employees in their official capacity must therefore be
Nor, even if a claim had been stated, could the plaintiff
recover from the City's employees in their individual capacity.
The plaintiff has alleged no facts that can plausibly lead this
Court to the conclusion that the defense of qualified immunity
would not be available in this instance to the arresting officers,
Sergeant Zimnoch and Officer Szlachetka.
See Lennon v. Miller, 66
entitled to summary judgment on qualified immunity grounds when "no
favorable to, and drawing all inferences most favorable to, the
plaintiffs, could conclude that it was objectively unreasonable for
the defendant" to believe that he was acting in a fashion that
did not clearly violate an established federally protected right).
Nor, for that matter is there a plausible argument why Mayor Rohde
and Chief Cossette should be subjected to liability in their
supervisory capacity for their attenuated involvement in this
See Rogoz v. City of Hartford, Slip Copy, 2012 WL
4372189 (D.Conn. September 24, 2012) (stating that dismissal of
plaintiff's claims against supervisor in individual capacity is
appropriate where plaintiff fails to establish factors indicating
supervisory liability set forth in Colon v. Couglin, 58 F.3d 865,
873 (2d. Cir.1995)).
Accordingly, the plaintiff's claims against
Szlachetka, in their individual capacities, must be dismissed.
constitutional claims against the City, and its employees in both
their official and individual capacities, are dismissed.
defendants' Motion to Dismiss (Dkt. # 17) is GRANTED.
This case is before the undersigned pursuant to 28 U.S.C. §
636 (c) and D. Conn. Magis. R. 73(A)(1).
As such, this is a final
ruling directly appealable to the United States Court of Appeals
for the Second Circuit.
§ 636 (c)(3); D. Conn. Magis R.
The clerk is directed to close this case.
IT IS SO
Dated at Hartford, Connecticut, this 5th day of January, 2013.
/s/ Thomas P. Smith
Thomas P. Smith
United States Magistrate Judge
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