Badolato v. Adiletta et al

Filing 39

ORDER: Defendants' Motion 33 for Summary Judgment is GRANTED. Signed by Judge Janet Bond Arterton on 07/24/2012. (Budris, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Stephanie Badolato,
Plaintiff,

Civil No. 3:10cv1855 (JBA)

v.
Joseph Adiletta, Rebecca Garcia, and Joseph
Badolato,
Defendants.

July 24, 2012

RULING ON MOTION FOR SUMMARY JUDGMENT
On November 29, 2010, Plaintiff Stephanie Badolato filed a Complaint against
Defendants Joseph Adiletta, Rebecca Garcia, and Joseph Badolato, claiming that Defendants
deprived her of her rights to family association and to be free from a deprivation of
substantive due process of law in violation of the First, Fourth, Ninth, and Fourteenth
Amendments, deprived her of her rights of equal protection of the laws and access to the
courts in violation of the First and Fourteenth Amendments, and are liable for intentional
infliction of emotional distress (“IIED”). Defendants move [Doc. # 33] for summary
judgment on all of Plaintiff’s claims. For the reasons stated below, Defendants’ motion for
summary judgment will be granted.
I.

Relevant Undisputed Facts
Defendants Joseph Badolato, Rebecca Garcia, and Joseph Adiletta are employed as

officers with the Bridgeport Police Department; Lieutenant Garcia and Sergeant Adiletta
work in the Office of Internal Affairs (“OIA”). Plaintiff Stephanie Badolato and Defendant
Joseph Badolato married January 31, 1998 (Separation Agreement, Ex. D to Defs.’ Loc. R.
56(a)1 Stmt [Doc. # 33-2] at 1), but separated on December 15, 2007 (Pl.’s Dep., Ex. B to
Defs.’ 56(a)1 Stmt at 19:22–20:5) and divorced July 23, 2009 (Badolato v. Badolato Docket,

FBT–FA08–4023666–S, Ex. E to Defs.’ 56(a)1 Stmt). On January 13, 2009, Stephanie and
Joseph Badolato entered into a Separation Agreement, which provided that Joseph would
retain possession of their home and that they would have joint legal custody of their six
children, whose primary residence would be with Joseph. (Separation Agreement, Ex. D to
Defs.’ 56(a)1 Stmt at 4, 8.) They signed an Amendment to the Separation Agreement on
June 3, 2010 that provided that Stephanie would no longer be allowed to visit with their
children in Joseph’s home. (Amendment, Ex. F to Defs.’ 56(a)1 Stmt at 1–2.)
Ms. Badolato testified during her deposition that in July 2008 she went to OIA at the
Bridgeport Police Department to have OIA investigate Joseph Badolato’s treatment of her,
including alleged threats, rape, and a false police report that he filed against a Captain
McCarthy in the Bridgeport Police Department. (Pl.’s Dep. at 41:15–42:10.) She spoke with
Sergeant Adiletta and Lieutenant Garcia and testified that the officers “seemed to listen” to
her concerns. (Id. at 43:25–45:24.) According to Ms. Badolato, she told Sergeant Adiletta
and Lieutenant Garcia that in June 2007 Mr. Badolato engaged in non–consensual anal
intercourse with her by holding her down after she told him “No,” but that she had not
previously reported the incident because she was afraid of him. (Id. at 45:20–50:2.) She
testified that after the sexual assault, she said to Mr. Badolato “I have to call someone,” to
which he responded “Don’t do it” while he was holding his police belt, with his gun in it, in
his hands. (Id. at 54:15–55:10.) Ms. Badolato perceived this as a threat. (Id. at 55:11–21.)
She also testified that she told the OIA officers that Mr. Badolato had hit her and thrown her
into a wall when she was seven months pregnant with their third daughter. (Id. at 50:3–12.)
Ms. Badolato also claims that she told Sergeant Adiletta and Lieutenant Garcia that
Joseph Badolato had previously filed a false complaint against Captain McCarthy in which
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Mr. Badolato claimed that Captain McCarthy had assaulted him. (Id. at 50:19–54:14.) She
testified that her ex–husband had told her that in his complaint he accused Captain
McCarthy of physically assaulting him, and that she was present at the incident that gave rise
to the complaint and knew that there was no physical assault. (Id.)
Ms. Badolato testified that after she described these incidents to Adiletta and Garcia,
they told her “that there were no witnesses. That it was my word against his. And also that
if I were to pursue this, that it would probably go nowhere.” (Id. at 56:19–24.) She also
stated that they told her that pursuing any claims against Mr. Badolato would cost her a lot
of money, and that it “would be a long, drawn–out thing.” (Id. at 56:25–57:19.) Sergeant
Adiletta and Lieutenant Garcia called in Captain James Baraja, but Ms. Badolato testified
that he just stood in the doorway, and “didn’t take so much as a pencil out,” but told her “if
I wanted to pursue it, that it would be my word against his, and that it would be a very
difficult case to prove.” (Id. at 57:20–60:11.) She testified that she then left OIA “[b]ecause
I didn’t feel anybody would help me”; she added that she did speak to her attorney while she
was at OIA and that her attorney told her “We will deal with this.” (Id. at 63:9–23.)
In a transcribed statement that Ms. Badolato gave to Sergeant Adiletta and
Lieutenant Garcia on December 8, 2008, however, she stated that she felt they attempted to
help her during the July 2008 meeting, but that they also told her “how difficult it would be
because there were no police reports.” (OIA Report, Ex. G to Defs.’ 56(a)1 Stmt at 33.) She
further stated that she did not follow through on her July 2008 complaints because the
officers advised her to speak to her attorney, which she did, and her attorney “had said to
wait until [the] divorce proceeding was over because that was a whole other issue to focus
on.” (Id. at 34.)
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Ms. Badolato also claims that in the days after she visited OIA, Mr. Badolato
threatened her friends, telling her “If I ever see Phil Mascendaro or James Lancia again, I will
shoot them on sight.” (Pl.’s Dep. at 73:6–19.) She testified that she spoke with Sergeant
Adiletta on the phone after she returned to Florida on August 4th or 5th and told him about
the death threat, and that Sergeant Adiletta said he would look into it. (Id. at 77:14–78:7.)
Ms. Badolato further testified that she called OIA again in October to ask “what was going
on with that death threat,” and that Sergeant Adiletta denied having spoken with her about
the death threat in August. (Id. at 80:3–81:14.) Lieutenant Garcia and Sergeant Adiletta
confirmed in memoranda written to the OIA file that Sergeant Adiletta denied having ever
spoken with Ms. Badolato in August 2008 about threats made by Mr. Badolato. (OIA Report
at 11, 15.) Sergeant Adiletta also wrote in a memorandum to Chief Gaudett that both Lancia
and Mascendaro stated that they did not feel threatened by Joseph Badolato, and that they
declined to cooperate with the investigation. (Id. at 16.)
Ms. Badolato testified that she went to OIA in November 2008 and that Sergeant
Adiletta and Lieutenant Garcia informed her they would only talk to her about her “death
threat” complaint and not her other complaints because Chief Gaudett told them they “have
to investigate this death threat.” (Pl.’s Dep. at 88:5–89:13.) Ms. Badolato gave the officers
a recorded statement, but did not feel that they did an adequate job taking the statement
because, according to Ms. Badolato, they asked “irrelevant” and “intimidating” questions
and Lieutenant Garcia made a “laughing noise” when Ms. Badolato claimed that she had
reported the threat to Sergeant Adiletta in August. (Id. at 89:14–91:2.) She was informed
by letter that she would have to come back to OIA to sign the transcript of her recorded
statement, but testified that she did not know that if she did not sign the transcript, her
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complaint would be dismissed. (Id. at 93:19–94:4.) The OIA investigation into her
complaint of Mr. Badolato’s threats against Lancia and Massendero was closed on March 5,
2010 because “[b]oth intended victims refused to cooperate with [the] investigation” and
because Ms. Badolato “refused to return to [OIA] to [notarize] her statement.” (OIA Report
at 4.)
Ms. Badolato also testified during her deposition that in February 2010, she was
visiting her children in her and Mr. Badolato’s former “marital home” and was scheduled
to stay with them for a week from Sunday to Saturday. (Pl.’s Dep. at 112:10–19.) She alleged
that Mr. Badolato came to the house “a couple of times” during the week and told her that
she would have to leave on Friday, rather than Saturday, and that if she didn’t she “would
be arrested and the police were already in place.” (Id. at 112:25–113:19.) She further
testified that Mr. Badolato “changed his mind” and that she stayed until Saturday. (Id. at
114:24–115:6.) Ms. Badolato also alleged that in August 2010 she was scheduled to visit her
children during the day for a few days, but not overnight, and that Mr. Badolato called her
and said “If you step foot on my property or my family’s property, you will be arrested.” (Id.
at 115:7–117:6, 119:24–120:8.) She “did not recall” whether she actually visited her children
on the scheduled days after Mr. Badolato’s threats. (Id. at 120:25–121:16.)

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II.

Discussion1
A.

Substantive Due Process

Defendants argue that they are entitled to summary judgment on Plaintiff’s
substantive due process claims because neither Ms. Badolato’s allegations nor the undisputed
material facts demonstrate that any of the Defendants engaged in behavior that is
conscience–shocking, that Defendants Garcia or Adiletta denied her access to the courts, or
that Defendant Badolato deprived her of her right to family association. Plaintiff argues that
the evidence supports her claim that Defendants Adiletta and Garcia infringed her right of
access to the courts and her claim that Defendant Badolato infringed her right of family
association, and that Adiletta’s and Garcia’s conduct “sanctioning or condoning sexual
assault” and Mr. Badolato’s using “the power of his badge to deprive a mother of
court–ordered visitation rights with her six minor children” shock the conscience (Opp’n
[Doc. # 34] at 10).
1.

Defendants Garcia and Adiletta

An individual has a constitutional right of access to the courts, protecting him or her
from actions that hinder a plaintiff’s efforts to pursue a legal claim. Monsky v. Moraghan,
127 F.3d 243, 246–47 (2d Cir. 1997). This right extends only to a plaintiff’s efforts to bring

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“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).
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a civil claim, however, as “a private citizen does not have a constitutional right to bring a
criminal complaint against another individual.” Price v. Hasly, 04–CV–0090S(SR), 2004 WL
1305744, *2 (W.D.N.Y. June 8, 2004) (citing Leeke v. Timmerman, 454 U.S. 83 (1981); Linda
R.S. v. Richard D., 410 U.S. 614 (1973); Ostrowski v. Mehltretter, 20 F. App’x 87 (2d Cir.
2001)) (dismissing plaintiff’s claims that corrections officer and prison administrator failed
to pursue criminal charges against a fellow inmate who assaulted him because he had no
constitutional right to have those charges brought); see also Linda R.S., 410 U.S. at 619 (“[A]
private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of
another.”); Pigott v. Lynn Police Dep’t, 7 F.3d 218, 1993 WL 375821, *7 (1st Cir. 1993)
(“[T]he right of access to the courts does not import an absolute right to institute criminal
proceedings. Insofar as Pigott contends that the Lynn Police Department violated this right
simply by refusing to accept his criminal complaint, he has alleged the violation of a legal
interest that does not exist.”).
As Plaintiff argues in her opposition to Defendants’ motion for summary judgment,
her “access to the courts” claim arises from Garcia and Adiletta “persuading her not to
pursue her criminal complaint against the defendant Badolato for sexual and physical
assaults committed within the applicable five–year statute of limitations for felonies in
Connecticut.” (Opp’n at 6.) Her counsel reiterated at oral argument that this claim is
related only to Ms. Badolato’s desire to have a criminal complaint brought against Joseph
Badolato; Ms. Badolato does not claim that Sergeant Adiletta or Lieutenant Garcia hindered
her efforts to bring a civil action against her ex–husband. Ms. Badolato’s counsel further
agreed at oral argument that there is no constitutional right of access to the courts for
criminal matters. Without a constitutional right to bring a criminal complaint, Ms. Badolato
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does not have a cognizable claim against Defendants Adiletta and Garcia for a violation of
her right of access to the courts.
To the extent that Plaintiff claims that Adiletta’s and Garcia’s actions violated her
substantive due process rights by sanctioning or condoning sexual assault, “[s]ubstantive due
process protects against government action that is arbitrary, conscience–shocking, or
oppressive in a constitutional sense, but not against government action that is incorrect or
ill advised.” Cunney v. Bd. of Trustees, 660 F.3d 612, 626 (2d Cir. 2011). Substantive due
process will only apply where the alleged right at issue is “so rooted in the traditions and
conscience of our people as to be ranked as fundamental.” Local 342 v. Town of Huntington,
31 F.3d 1191, 1196 (2d Cir. 1994) (quoting Reno v. Flores, 507 U.S. 292, 303 (1993)). Here,
Adiletta and Garcia’s failure to pursue a criminal complaint against Defendant Badolato was
neither conscience–shocking nor oppressive in a constitutional sense, nor did it violate any
right of Ms. Badolato to a criminal complaint that is rooted “in the traditions and conscience
of our people.” See Fedor v. Kudrak, 421 F. Supp. 2d 473, 483–84 (D. Conn. 2006) (Droney,
J.) (defendant police officers’ failure to investigate a husband’s criminal complaint against
his wife “could hardly be deemed such as to ‘shock the conscience’”).
Plaintiff argues in her Opposition that conduct “sanctioning or condoning sexual
assault . . . typically will be found to violate substantive due process” (Opp’n at 10), however
the cases she cites for this proposition are inapposite. Doe v. Taylor Independent School Dist.,
15 F.3d 443, 454–55 (5th Cir. 1994) addressed liability of supervisory school officials for a
subordinate’s violation of a student’s constitutional right to bodily integrity in a physical
sexual abuse case. Doe v. Claiborne Cnty., 103 F.3d 496, 508 (6th Cir. 1996) concerned
municipal liability for a school teacher’s violation of a student’s constitutional right to bodily
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integrity. In Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1076 (11th Cir. 2000), the
Eleventh Circuit held that the plaintiff’s claim that his high school football coach struck him
in the face with a “weight lock,” resulting in the “utter destruction” of his eye constituted
corporal punishment of such an egregious nature that it would violate plaintiff’s substantive
due process rights. None of the cases cited by Plaintiff support the proposition that a law
enforcement officer’s decision not to pursue a criminal complaint can constitute
conscience–shocking conduct in the sense of a substantive due process violation, particularly
in light of fact that Ms. Badolato has no cognizable constitutional right to bring a criminal
complaint.
Defendants’ motion for summary judgment as to the access to the courts and
substantive due process claims against Adiletta and Garcia is therefore granted.
2.

Defendant Badolato

Plaintiff claims that Defendant Badolato violated her substantive due process right
to family association by threatening to arrest her if she exercised visitation rights with her
children. “Family members have, in general terms, a substantive right under the Due
Process Clause to remain together without the coercive interference of the awesome power
of the state.” Anthony v. City of New York, 339 F.3d 129, 142–43 (2d Cir. 2003) (internal
quotation marks and citations omitted). To succeed on a family association claim, a plaintiff
must demonstrate that his or her separation from family members “was so shocking,
arbitrary, and egregious that the Due Process Clause would not countenance it even were
it accompanied by full procedural protection.” Id. at 143.
A temporary separation of a child from his or her parents does not ordinarily violate
the parents’ substantive due process rights. Tenenbaum v. Williams, 193 F3d 581, 600–01
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(2d Cir. 1999) (“The temporary separation of Sarah from her parents [to determine whether
or not she was abused] did not result in the Tenenbaums’ wholesale relinquishment of their
right to raise Sarah. The interference was not severe enough to constitute a violation of their
substantive due–process rights.”). Although the Second Circuit has not addressed the
circumstances under which the infringement of a parent’s visitation rights can constitute a
substantive due process violation, several other circuits have held that “minor
infringements” in visitation rights do not rise to the level of constitutional violations. See
Brittain v. Hansen, 451 F.3d 982, 993–96 (9th Cir. 2006) (“[W]e do not believe a single
instance of visitation, of a single week in duration, is a ‘fundamental’ right. As such,
substantive due process does not provide a remedy in this case.”); Zakrzewski v. Fox, 87 F.3d
1011, 1014–15 (8th Cir. 1996) (defendants did not “intentionally infringe[] upon
Zakrzewski’s liberty interest in a manner that shocks the conscience” where “his visitation
period was temporarily cut short on one occasion when law enforcement officials were
confronted with a complaint that Zakrzewski had violated the visitation terms of the
decree”); Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1982) (“[a]ny deprivation of Wise’s
visitation rights was so insubstantial in duration and effect to rise to a federal constitutional
level” where his “extended visit” with his daughter was cut short when police officers took
the girl and returned her to her mother).
Here, the right to family association that Plaintiff claims was violated by Defendant
Badolato’s arrest threats were her short–term visits with her children in February and
August 2010. Ms. Badolato’s visit in February 2010 was not cut short (Pl.’s Dep. at
114:24–115:6), and she does not recall whether she cancelled her August 2010 visit due to
his threats (id. at 120:25–121:16). Even if the August 2010 visitation, scheduled for a “few
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days,” had been cut short or cancelled, under the holdings in Brittain, 451 F.3d at 993–96,
Zakrzewski, 87 F.3d at 1014–15, and Wise, 666 F.2d 1333, such a short–term infringement
on visitation rights does not shock the conscience in a constitutional sense such that it
violates the guarantees of the substantive due process clause.
Defendant Joseph Badolato’s motion for summary judgment on Ms. Badolato’s
family association substantive due process claim is therefore granted.
B.

Equal Protection

Defendants argue that they are entitled to summary judgment in their favor on Ms.
Badolato’s equal protection claim because there is no evidence in the record to support an
inference that they treated her differently than other individuals similarly situated to her in
all material respects. Ms. Badolato argues that there is sufficient evidence to support a claim
that “Adiletta and Garcia subjected the plaintiff to disparate treatment on the basis of her
complaint being against a member of the police department rather than against a civilian”
(Opp’n at 7), however her counsel conceded at oral argument that there is nothing in the
evidentiary record that would show how any other individuals were treated by the
Bridgeport Police Department.2 Instead, her counsel argued that this claim should survive
summary judgment based on the “inference” that if Ms. Badolato lodged a complaint against
a civilian, rather than a member of the Bridgeport Police Department, her complaint would
have been pursued.

2

Although it is unclear from Plaintiff’s Complaint whether she also claims that
Defendants Adiletta and Garcia treated her differently on account of her gender, her counsel
clarified at oral argument that she is not pursuing an equal protection claim on the basis of
gender.
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Plaintiff relies entirely on Myers v. County of Orange, 157 F.3d 66, 75–76 (2d Cir.
1998), in which the Second Circuit held that Orange County’s first–come first–served policy
under which the County District Attorney’s office directed police not to entertain “any
complaint by a person named as a wrongdoer in a prior related civilian complaint—until the
initial complaint had been either dismissed or prosecuted” violated the Equal Protection
Clause because it ran contrary to the objectives of law enforcement, created “an unnecessary
risk that innocent persons will be prosecuted and possibly convicted,” and served no
legitimate government interest. Myers is readily distinguishable from this case, however, as
Myers was essentially a selective prosecution case in which the plaintiff was subject to a
criminal investigation and prosecution, whereas the individual against whom he complained
was not. Importantly, Plaintiff has not alleged that there exists, nor is there any evidence in
the record of, any Bridgeport Police Department policy of pursuing some complaints but not
others. See Cantave v. New York City Police Officers, 09–CV–2226(CBA)(LB), 2011 WL
1239895, *5–6 (E.D.N.Y. Mar. 28, 2011) (distinguishing plaintiff’s claim that officers arrested
and prosecuted him while not arresting the individual against whom he complained from
Myers on the ground that “plaintiff has made no showing that the defendants acted in
accordance with a policy favoring a first-filed complaint or, indeed, any other policy that can
be evaluated on the basis of its relationship to a legitimate governmental interest”).
Because her equal protection claim does not allege membership in a protected class
or group, Ms. Badolato must demonstrate that she “has been intentionally treated differently
from others similarly situated and that there is no rational basis for the difference in
treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). “In order to succeed
on a ‘class of one’ claim, the level of similarity between plaintiffs and the persons with whom
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they compare themselves must be extremely high.” Neilson v. D’Angelis, 409 F.3d 100, 104
(2d Cir. 2005), abrogated on other grounds, Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008).
Such a plaintiff must show 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 similarity
in circumstances and difference in treatment are sufficient to exclude the possibility that the
defendants acted on the basis of a mistake.” Id.
As Ms. Badolato’s counsel agreed at oral argument, there is no evidence in the record
that Defendants treated Ms. Badolato any differently than individuals who brought
complaints against civilians rather than police officers. The absence of such evidence is fatal
to her claim. Defendants’ motion for summary judgment on Plaintiff’s equal protection
claim is therefore granted.
C.

Intentional Infliction of Emotional Distress3

To prevail on her IIED claim against Joseph Badolato, Plaintiff has the burden of
establishing four elements:
(1) that the actor intended to inflict emotional distress; or that he knew or
should have known that emotional distress was a likely result of his conduct;
(2) that the conduct was extreme and outrageous; (3) that the defendant's
conduct was the cause of the plaintiff’s distress and (4) that the emotional
distress sustained by the plaintiff was severe.
Petyan v. Ellis, 200 Conn. 243, 253 (2006). “Liability for intentional infliction of emotional
distress requires conduct exceeding all bounds usually tolerated by decent society, of a

3

Plaintiff’s counsel clarified at oral argument that Ms. Badolato is only pursuing her
IIED claim against Defendant Joseph Badolato.
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nature which is especially calculated to cause, and does cause, mental distress of a very
serious kind.” Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 712 (2000).
Plaintiff claims that she suffered severe emotional distress as a result of Defendant
Badolato’s threats to arrest her in February and August, 2010. (Compl. ¶ 8.) Her counsel
further asserted at oral argument that Ms. Badolato’s IIED claim is based on each of the
alleged acts committed by Joseph Badolato, including the arrest threats and the sexual
assault. With respect to Mr. Badolato’s arrest threats, a police officer’s verbal harassment
and arrest threats do not rise to the level of extreme and outrageous conduct in the context
of an IIED claim. See Winter v. Northrop, 3:06cv216(PCD), 2008 WL 410428, *7 (D. Conn.
Feb. 12, 2008) (Woodbury Constable Howard Northrop’s actions, “yell[ing] and scream[ing]
at Plaintiff over the phone, threatening him with arrest,” did not go beyond all possible
bounds of decency). With respect to the alleged sexual assault, Ms. Badolato claimed that
her ex–husband engaged in non–consensual intercourse in June 2007 (Pl.’s Dep. at
45:20–50:2), more than three years prior to her filing the Complaint in this case, on
November 29, 2010. Pursuant to Conn. Gen. Stat. § 52-577, “[n]o action founded upon a
tort shall be brought but within three years from the date of the act or omission complained
of,” therefore her IIED claim based on Mr. Badolato’s assault is time–barred.
Defendants’ motion for summary judgment on Plaintiff’s IIED claim is therefore
granted.

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III.

Conclusion
For the reasons stated above, Defendants’ motion [Doc. # 33] 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 24th day of July, 2012.

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