Clack v. Torre et al
ORDER: Defendants' Motion 100 for Summary Judgment is GRANTED and Plaintiff's Motion 113 to Strike is DENIED. The Clerk is directed to enter judgment for Defendants and to close this case. Signed by Judge Janet Bond Arterton on 03/17/2014. (Bonneau, J)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EDWARD ALLEN CLACK, III,
MICHAEL TORRE, et al.,
Civil No. 3:10cv1905 (JBA)
March 17, 2014
RULING ON MOTION FOR SUMMARY JUDGMENT
On December 3, 2010, Plaintiff Edward Allen Clack, III, proceeding pro se,
brought this action against Defendants Michael Torre, Mark O’Connor, Sandra Brooks,
Frances D’Orazio, the Guilford Police Department, the New Haven County Superior
Court, Whalley Jail, New Haven County and the State of Connecticut.1 Specifically, the
Court has construed Plaintiff’s multiple complaints to allege the following causes of
action against Defendants O’Connor, Brooks, and the Guilford Police Department: false
arrest pursuant to 42 U.S.C. § 1983; unconstitutional search and seizure pursuant to 42
U.S.C. § 1983; selective enforcement and disparate treatment in violation of the Equal
Protection Clause of the Fourteenth Amendment; peonage in violation of the Thirteenth
Amendment; civil rights conspiracy pursuant to 42 U.S.C. § 1985; a Monell claim; and
state law claims for false imprisonment, malicious prosecution, assault and battery,
As the Court has previously noted (see Rul. on Mot. Dismiss [Doc. # 80] at 1 n.1;
Rul. on Defs.’ Mot. Summ. J. [Doc. # 96] at 1 n.1), a review of the docket entries in this
matter reveals that Frances D’Orazio, the New Haven County Superior Court, Whalley
Jail, New Haven County, and the State of Connecticut were never served, and no request
for additional time beyond the requirements of Fed. R. Civ. P. 4(m) has been made. (See
D’Orazio USM-285 Process Receipt and Return [Doc. # 17]; State of Connecticut USM285 Process Receipt and Return [Doc. # 17]; New Haven County Superior Court USM285 Process Receipt and Return [Doc. # 17].) Furthermore, the Court granted summary
judgment in favor of Defendant Torre on September 9, 2013. (See Rul. on Defs.’ Mot.
Summ. J.). Therefore, Defendants O’Connor, Brooks, and the Guilford Police
Department are the only remaining Defendants in this case.
defamation, evidence tampering, entrapment, intentional infliction of emotional distress,
negligent infliction of emotional distress, coercion, harassment, and threatening. (See
Rul. on Defs.’ Mot. Summ. J. at 12–13.)2 Defendants O’Connor, Brooks, and the Guilford
Police Department now move [Doc. # 100] for summary judgment on each of Plaintiff’s
remaining claims against them.3 In connection with this motion, Plaintiff moves [Doc. #
113] to strike several of the exhibits attached to Defendants’ motion for summary
judgment, and to disqualify defense counsel, and to add defense counsel and his law firm
as defendants in this case. For the following reasons, Plaintiff’s motion to strike is denied,
and Defendants’ motion for summary judgment is granted.
In his memorandum in opposition to the pending motion for summary
judgment, Plaintiff raises many claims that were not asserted in his previous complaints,
and addresses his claims against Defendants who were never properly served in this
action. Some of these claims are not cognizable in a § 1983 action. For example, Plaintiff
claims that his Miranda rights were violated. However, as the Second Circuit has noted,
“the failure to give Miranda warnings does not create liability under § 1983.” Neighbour
v. Covert, 68 F.3d 1508, 1510 (2d Cir. 1995). The Court has attempted to liberally
construe Plaintiff’s multiple complaints, and to that end, included a detailed list of what it
considered to be the remaining claims in its ruling denying Defendants’ first motion for
summary judgemt. (See Rul. on Defs.’ Mot. Summ. J. at 12–13.) However, Plaintiff
cannot amend his pleadings to include additional claims and parties simply by
mentioning these claims in his briefing. Olde Monmouth Stock Transfer Co., Inc. v.
Depository Trust & Clearing Corp., 485 F. Supp. 2d 387, 393 (S.D.N.Y. 2007) (“It is longstanding precedent in this circuit that parties cannot amend their pleadings through
issues raised solely in their briefs.” (internal citations and quotation marks omitted)).
Thus, because these claims are not properly before the Court, they will not be addressed
in the context of this ruling.
These Defendants had previously moved [Doc. # 84] for summary judgment, but
the Court denied the motion without prejudice to renew for failure to address each of
Plaintiff’s claims. (See Rul. on Defs.’ Mot. Summ. J. at 12–14.)
Plaintiff worked as a sub-contractor for Comcast installing cable service for
approximately two years without incident prior to July 2009. (See Pl.’s Stmt., Ex. 2 to Pl.’s
Loc. R. 56(a)2 Stmt. [Doc. # 92] at 2.) On July 1, 2009, Plaintiff was assigned to a job in
Guilford, Connecticut, at the residence of Mr. Torre, who is a detective in the New Haven
Police Department, his wife, and his mother-in-law, Frances D’Orazio. (Id.) Plaintiff
parked his truck in the parking lot of a soccer field near the home and Mrs. D’Orazio let
him inside. (See id.; D’Orazio Stmt, Ex. C to Defs.’ Loc. R. 56(a)1 Stmt. [Doc. # 100-2].)
Mrs. D’Orazio showed Plaintiff the room where the new cable line was to be installed,
and then Plaintiff asked her to show him the basement so he could locate the main cable
feed. (See Pl.’s Stmt. at 2; D’Orazio Stmt.) Mrs. D’Orazio accompanied Plaintiff to the
basement while he looked for the main cable feed. (See Pl.’s Stmt. at 2; D’Orazio Stmt.)
Once Plaintiff determined what would need to be done to complete the installation, he
returned to his truck to get his tools. (See Pl.’s Stmt. at 2.)
Upon returning to the residence, Mrs. D’Orazio again accompanied Plaintiff to
the room where the new cable line would be installed so that he could locate the best spot
to drill. (See id.) Plaintiff asked Mrs. D’Orazio to tap on the floor in that spot so he could
locate it when drilling up from the basement. (See id.; D’Orazio Stmt.) Plaintiff then
went into the basement and drilled the hole to run the cable line upstairs. (See Pl.’s Stmt.
at 2; D’Orazio Stmt.) Plaintiff was alone in the basement for several minutes. (See Pl.’s
This Court relied on the documents submitted in connection with all three of the
summary judgment motions in this case when drafting the factual summary. The Court
has drawn on the summary of the facts in its previous summary judgment ruling, and has
adapted that summary to address the additions to the record in connection with the
Stmt. at 2; D’Orazio Stmt.)5 Plaintiff completed the installation and at Mrs. D’Orazio’s
request, confirmed that the internet service was still working, after which she signed off
on his work and he left. (See Pl.’s Stmt. at 3; Pl.’s Dep. Tr., Ex. A to Defendant Torre’s
Loc. R. 56(a)1 Stmt. [Doc. # 83-5] at 22–23.)
On July 3, 2009 at about 9:30 a.m., Defendant O’Connor, a Detective for the
Guilford Police Department, received a call from Mr. Torre reporting that his off-duty
Glock 26 9mm pistol had gone missing from his residence. (See Arrest Warrant Appl.,
Ex. A1 to Defs.’ 56(a)1 Stmt. at 1; see also Torre Aff., Ex. B to Torre’s 56(a)1 Stmt. ¶ 7.)
Mr. Torre told Defendant O’Connor over the phone that he had gone into his basement
between 7:30 a.m. and 8:00 a.m. that morning to retrieve his pistol from the gun case
where he stored it, and found that the pistol, the holster, and the spare magazine were
missing. (See Arrest Warrant Appl.; see also Torre Stmt., Ex. B to Defs.’ 56(a)1 Stmt.;
Torre Aff. ¶¶ 4–5.) Mr. Torre also stated that he thought he may have left the pistol at
work, but his gun was not in his locker when he went there to check. (See Arrest Warrant
Appl. at 1; see also Torre Stmt; Torre Aff. ¶ 6.)
Upon receiving the call, Defendant O’Connor visited Mr. Torre’s home and
interviewed him, his wife Sylvia, and his mother-in-law, Mrs. D’Orazio. (See Arrest
Warrant Appl. at 1; see also Torre Aff. ¶ 8.) Mr. Torre told Defendant O’Connor that he
had stored his personal off-duty pistol in the gun case in his basement on the evening of
June 30, 2009, that he had worn his duty weapon to work on July 1, 2009, that he had
stayed home on July 2, 2009, and that he discovered the pistol was missing on July 3,
The parties disagree as to how long Plaintiff was in the basement by himself.
Mrs. D’Orazio wrote in her statement to the Guilford Police Department that Plaintiff
was alone for “a period of 20 min[utes] total” (D’Orazio Stmt.), while Plaintiff states he
was alone for no more than a couple of minutes (Pl.’s Dep. Tr., Ex. A to Torre’s Loc. R.
56(a)1 Stmt. [Doc. # 83-5] at 23).
2009. (See Arrest Warrant Appl. at 1; see also Torre Aff. ¶¶ 9–12; Torre Stmt.) Mr. Torre
also stated that there was no sign of a break-in or forced entry, and that the house had
always been locked during the time period in question. (See Arrest Warrant Appl. at 1;
see also Torre Aff. ¶ 13; Torre Stmt.) Mrs. D’Orazio told Defendant O’Connor that only
her housekeeper and a Comcast technician had been in the house between June 30 and
July 3, 2009, and that her housekeeper did not go into the basement and was never alone
in the house. (See Arrest Warrant Appl. at 2; see also D’Orazio Stmt. at 2.) Mrs. D’Orazio
also stated that the Comcast technician was the only person other than the residents of
the home who had been alone in the basement, and stated that he had worked in the area
where the gun case was located. (See Arrest Warrant Appl. at 2.)6 Defendant Torre stated
that neither his wife nor his mother-in-law knew he stored the pistol in the basement.
(See id. at 3.) There were no signs of burglary or forced entry at the home. (See id.)
After interviewing Mr. Torre and his family, Defendant O’Connor took pictures
of the area where the gun case was located, and processed the gun case for fingerprints
and DNA, which were sent to the state crime laboratoy for analysis. (See id; see also
Request for Examination of Physical Evidence I, Ex. D to Defs.’ 56(a)1 Stmt.) Defendant
O’Connor contacted Comcast Security and spoke with Plaintiff’s supervisor, who
identified Plaintiff as the technician who had completed the cable installation at Mr.
Torre’s home. (See Arrest Warrant Application at 2.) Defendant O’Connor checked
Plaintiff’s criminal record and determined that he was a convicted felon whose arrest
The parties dispute how close Plaintiff actually was to the gun case when he
installed the new cable line in the basement. Mrs. D’Orazio claims that Plaintiff worked
on the wire that ran across the shelf on which the gun case was located and that Plaintiff
worked within one to two feet of the gun case. (See Arrest Warrant Application at 2.)
Plaintiff claims that the wire near the gun case was actually an old wire, and that he was
never closer than five to ten feet from the gun case when he was in the basement alone.
(See Pl.’s Dep. Tr. at 71–72.)
history included charges for theft, terroristic threatening, resisting arrest, and assaulting a
police officer. (See id.) Defendant O’Connor also confirmed that Plaintiff did not have a
gun license. (See id. at 3.)
On July 8, 2009, after returning home from work as usual, Plaintiff answered a
knock at his door and found Defendant O’Connor and his partner standing outside. (See
Pl.’s Stmt. at 5.)
Plaintiff let the detectives into his home and they discussed the
investigation into the missing pistol. (See id.; see also Arrest Warrant Appl. at 3.)
Plaintiff confirmed that he had performed the installation at Mr. Torre’s home, and that
he had worked in the basement. (See Pl.’s Stmt. at 5; Arrest Warrant Appl. at 3.)
However, Plaintiff stated that he had not seen any gun box, and when Defendant
O’Connor showed him a picture of the gun case, he said he had not touched or opened
the case and his fingerprints should not be on it. (See Pl.’s Stmt. at 5; Arrest Warrant
Appl. at 3.)7 Plaintiff told the detectives that he had “a small daughter and [he] ha[d] no
interest in obtaining a gun.” (See Pl.’s Stmt. at 5; see also Arrest Warrant Appl. at 3.)
Plaintiff also admitted that he was a convicted felon and had served time in jail in
Defendant O’Connor also showed Plaintiff a picture of the cable that ran across
the shelf where the gun case was located. (See Pl.’s Stmt. at 5; Arrest Warrant Appl. at 3.)
Plaintiff claims he told Defendant O’Connor “repeatedly that [he] didn’t remember
working in that area and that [his] prints shouldn’t be in that area.” (See Pl.’s Stmt. at 5.)
However, Defendant O’Connor wrote in the application for the arrest warrant that
Plaintiff said “his fingerprints should not be on that box though he had been working in
the area.” (See Arrest Warrant Appl. at 3.) Plaintiff claims that he did not work in the
immediate vicinity of the gun case, but rather worked between five and ten feet away
from the shelving unit on which it was stored. (See Pl.’s Dep. Tr. at 71–72.) However,
when Plaintiff was asked about the paragraph of the arrest warrant application in which
this statement was located, he confirmed that there was nothing false in that paragraph.
(See Pl.’s Dep. Tr. at 68.)
Georgia, but did not know if his DNA was on file there. (See Arrest Warrant Appl. at 3.)8
Plaintiff refused to provide a DNA sample or to sign a written statement describing the
interview, but did offer to submit to a lie detector test. (See id.; Pl.’s Dep. Tr. at 69–70.)
On July 17, 2009, Defendant O’Connor prepared an application for a warrant to
arrest Plaintiff in relation to the alleged theft of Mr. Torre’s pistol, and on July 22, 2009,
Connecticut Superior Court Judge Vitale signed the warrant. (See Arrest Warrant Appl.
at 4.) The next day around 8:30 a.m., Plaintiff was in his work truck on the way to his
first job of the day when Defendant O’Connor and his partner pulled up in a green sports
car. (See Pl.’s Stmt. at 7.) Defendant O’Connor asked Plaintiff to step out of his vehicle,
and placed Plaintiff under arrest. (See id.) Plaintiff was careful to comply with all of
Defendant O’Connor’s requests and cooperated fully during his arrest. (See id.) After his
arrest and processing, Defendant Brooks interviewed Plaintiff. (See id.) In order to
convince Plaintiff to speak with her, she informed him that he had a very high bond of
$150,000 and indicated that she would advocate for a reduced bond in order to assist him
in being released.
Plaintiff maintained his innocence throughout the
interrogation despite Defendant Brooks’s repeated attempts to get him to confess to the
alleged theft. (See id. at 8–9.)
On July 23, 2009, Defendants O’Connor and Brooks submitted a search warrant
application to search Plaintiff’s home and truck for the missing gun, which was signed
that same day by Judge Vitale. (See Gun Search Warrant Appl., Ex. J to Defs.’ 56(a)1
Plaintiff claims that Defendant O’Connor was not aware of his criminal history
prior to this interview, but admitted that Defendant O’Connor may have confirmed his
criminal status after the interview. (See Pl.’s Stmt. at 5; Pl.’s Dep. Tr. at 55–56, 61–62.)
The arrest warrant application does not indicate whether Defendant O’Connor checked
Plaintiff’s criminal record before or after interviewing Plaintiff. (See Arrest Warrant
Application at 2.)
Stmt.) Defendant O’Connor was present for the search of Plaintiff’s home and truck.
(See O’Connor Aff., Ex. L to Defs.’ 56(a)1 Stmt. ¶ 3; Jackson Aff., Attachment to Pl.’s
Resp. to Defs.’ 56(a)1 Stmt. [Doc. # 110] (describing the search of her home in July
2009).) Defendants did not locate the gun during the search of either location, and the
police did not seize any evidence pursuant to the search warrant. (See Return of Warrant,
Ex. K to Defs.’ 56(a)1 Stmt. (noting “nothing seized”); O’Connor Aff. ¶¶ 4–5.) When
Plaintiff was released from jail nearly three weeks later, his home computer had
malfunctioned, indicating that the hard drive was missing, and his GPS device had gone
missing from his truck, which had been left in the Comcast parking lot. (See Pl.’s Stmt. at
13; Pl.’s Resp. to Defs.’ 56(a)1 Stmt. [Doc. # 110].) Plaintiff claims that the police stole his
hard-drive and GPS during the search of his home and his truck.
On July 24, 2009, Plaintiff was arraigned on the charges and his bond was set at
$150,000. (See id. at 10.) Plaintiff was detained in the Whalley Jail, where he was denied
visitation and telephone privileges, and had difficulty accessing legal and religious
materials. (See id. at 10–12.) On July 28, 2009, Defendant O’Connor obtained a warrant
to take a DNA sample from Plaintiff. (See DNA Search Warrant Appl., Ex. A2 to Defs.’
56(a)1 Stmt.) On July 30, 2009, a DNA swab was taken from Plaintiff while he was
detained, and was submitted to the state crime laboratory that same day. (See Request for
Examination of Physical Evidence II, Ex. E to Defs.’ 56(a)1 Stmt.; see also Pl.’s Stmt. at
11). On August 4, 2009, Plaintiff was brought back to court, where his attorney moved to
reduce his bond. (See Aug. 4, 2009 Tr., Ex. to Dec. 30, 2010 Compl. [Doc. # 1] at 1–2.)
While Plaintiff’s bond was not reduced, the judge admonished the State to process the
fingerprint evidence as soon as possible. (See id. at 3.)
Plaintiff was in court again on August 6, 2009, when the State indicated that the
state crime laboratory had inadvertently compared the print on the gun case to Defendant
Torre’s fingerprints rather than to Plaintiff’s. (See Aug. 6, 2009 Tr., Ex. to Dec. 30, 2010
Compl. at 1–2.) The judge again admonished the State to process Plaintiff’s fingerprint
evidence as quickly as possible, indicating that the case would be very weak without
fingerprint evidence, and that if the evidence was not processed quickly, he would feel
compelled to lower Plaintiff’s bond as he had doubts about the State’s ability to prove its
case beyond a reasonable doubt without this evidence. (See id. at 3; see also Nov. 12, 2009
Tr., Ex. to Dec. 30, 2010 Compl. at 1.) On August 13, 2013, when the fingerprint analysis
determined that he had not touched the gun case, Plaintiff was released on bail pending
the results of the DNA tests. (See Pl.’s Stmt. at 12–13.) After some delay in processing
the DNA evidence, on November 19, 2009, the State represented that the results of the
DNA test excluded Plaintiff, and nolled the charges. (See Nov. 19, 2009 Tr., Ex. to Dec.
30, 2010 Compl. at 1.) Plaintiff’s attorney moved for a dismissal on the merits, which the
court promptly granted. (See id. at 1–2.) The record is devoid of any other evidence that
could tie Plaintiff to the alleged theft of the pistol.
Motion to Strike
After filing his opposition to the pending motion for summary judgment, Plaintiff
filed a motion [Doc. # 113] he styled as a “Motion to Strike Defendants Elliot Spector
Training Documents and Motion to Strike Elliot Spector and Associates as Counsel for
the Defense; Motion to Determine Statute of Limitations of Potential Co-Defendants
Elliot Spector and Nobel, Spector & O’Connor Attorneys at Law Law Firm.” The Court
will construe this motion as an objection to Defendants’ summary judgment exhibits, a
motion to disqualify Attorney Spector, and a motion to amend the Complaint to add
Attorney Spector and his law firm as parties to this action. The gravamen of Plaintiff’s
claim appears to be that because Attorney Spector, who represents Defendants in this
action, taught some of the police training courses attended by Defendants O’Connor and
Brooks, he should be disqualified from this action, the training records should be struck
from the summary judgment record, and Plaintiff should be permitted to add Attorney
Spector and his law firm as defendants in this suit. Defendants oppose this motion,
arguing that Plaintiff has not raised valid grounds for his objection to the training
records, Plaintiff has failed to meet the strict standard necessary for disqualification of
opposing counsel, and Plaintiff has not asserted any facts to support a claim against
Attorney Spector or his law firm, and that in any event, such a claim is time-barred.
Plaintiff moves to strike Defendant Brooks’s and O’Connor’s police training
records (Exs. H, I1, and I2) from the summary judgment record, arguing that because
Attorney Spector, opposing counsel in this case, taught some of the training courses
attended by Defendants, this created a conflict of interest that has tainted their records.
Courts in this district have previously addressed why a motion to strike exhibits from a
summary judgment record is improper:
Pursuant to Federal Rule of Civil Procedure 12(f), a court may strike any
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter from a party’s pleading. Such motions are disfavored.
Most importantly, Rule 12(f) allows a court to strike pleadings only.
Declarations and affidavits are not pleadings. It is inappropriate for a
court to strike material contained in exhibits to motions. . . . [A] motion to
strike is improper with respect to summary judgment. The Federal Rules
of Civil Procedure do not explicitly allow motions to strike in the context
of summary judgment. Specifically, Rule 56, which governs summary
judgment, does not provide a motion to strike as a tool in the summary
judgment process. Rather, Rule 56(c) provides a means to object to
inadmissible evidence referenced by the opposing party as follows: A
party may object that the material cited by the party’s opponent to support
or dispute a fact cannot be presented in a form that would be admissible in
evidence. Federal Rule 56(c) thus contemplates that the parties will flag
for the court material cited by opposing counsel which is not admissible,
and hence not properly considered on summary judgment.
Cummings v. Bradley, No. 3:11cv751 (AVC), 2013 WL 1149985, at *1 (D. Conn. Mar. 19,
2013) (internal citations and quotation marks omitted). Thus, Plaintiff’s motion to strike
may not be used to strike the training records from the summary judgment record.
However, even if this Court were to construe his motion as an objection to the
admissibility of the documents, Plaintiff has not raised any legal grounds for his
There mere fact that opposing counsel may have personal knowledge
regarding the training records of Defendants O’Connor and Brooks does not render those
records inadmissible. Furthermore, because the Court concludes that no underlying
constitutional violation has been shown, it does not reach the merits of Plaintiff’s Monell
claim for failure to train, and thus, the Court has not relied on any of the training records
in ruling on the motion for summary judgment. Therefore, Plaintiff’s motion to strike
the exhibits is denied.
Disqualification of Defense Counsel
Plaintiff also moves to disqualify Attorney Spector, arguing that he has a conflict
of interest in this matter because he provided some of the police training on which
Defendants rely in their defense to Plaintiff’s Monell claim. “In deciding whether to
disqualify an attorney, a district court must balance a client’s right freely to choose his
counsel against the need to maintain the highest standards of the profession.” GSI
Commerce Solutions, Inc. v. BabyCenter, L.L.C., 618 F.3d 204, 209 (2d Cir. 2010) (internal
citations and quotation marks omitted). “In view of their potential for abuse as a tactical
device, motions to disqualify opposing counsel are subject to particularly strict scrutiny.”
Scantek Med., Inc. v. Sabella, 693 F. Supp. 2d 235, 238 (S.D.N.Y. 2008). Some of the
recognized circumstances that would justify disqualification are a violation of
professional disciplinary codes, or an attorney’s representation of one client in a matter
adverse to another existing or previous client. GSI Commerce Solutions, 618 F.3d at 209.
However, “disqualification is warranted only if an attorney’s conduct tends to taint the
underlying trial.” Id. Plaintiff has not alleged any such conduct on the part of Attorney
Spector that would warrant his disqualification from this case. The fact that Attorney
Spector provided some of the police training attended by Defendants Brooks and
O’Connor does not create a conflict of interest with respect to his representation of those
clients in this matter.
Furthermore, as noted earlier, consideration of the training
program implemented by the Guilford Police Department is not necessary to the
resolution of this case. Therefore, Plaintiff’s motion to disqualify Attorney Spector is
Request to Add Additional Parties
Finally, Plaintiff moves for “determination of statute of limitations of potential codefendants Elliot Spector and Nobel, Spector and O’Connor.” This appears to be a
request by Plaintiff to add Attorney Spector and his law firm as co-defendants to this case.
Fed. R. Civ. P. 21 governs the addition of new parties to an action, and provides that
parties may be added by court order “on such terms as are just.” Under Rule 21 “courts
must consider judicial economy and their ability to manage each particular case, as well
as how the amendment would affect the use of judicial resources, the impact the
amendment would have on the judicial system, and the impact the amendment would
have on each of the parties already named in the action.” Sly Magazine, LLC v. Weider
Publ’ns, LLC, 241 F.R.D. 527, 532 (S.D.N.Y. 2007). However, courts are guided by “the
same standard of liberality afforded to motions to amend pleadings under [Fed. R. Civ.
P.] 15,” when determining whether a plaintiff should be permitted to add parties to an
action. Soler v. G & U, Inc., 86 F.R.D. 524, 527–28 (S.D.N.Y. 1980). “The Second Circuit
has held that a Rule 15(a) motion ‘should be denied only for such reasons as undue delay,
bad faith, futility of the amendment, and perhaps most important, the resulting prejudice
to the opposing party.’” Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566,
603–04 (2d Cir. 2005) (quoting Richardson Greenshields Secs., Inc. v. Lau, 825 F.2d 647,
653 n.6 (2d Cir. 1987)).
Plaintiff does not articulate exactly what claims he wishes to assert against these
parties, has not submitted a proposed amended complaint, and does not allege any
additional facts in support of his new claims, except to point out that Attorney Spector
taught police training courses attended by Defendants O’Connor and Brooks. To the
extent that Plaintiff seeks to add Attorney Spector and his firm to his § 1983 claims, the
statute of limitations on those claims expired in 2012, and therefore such amendment
would be futile. See Walker v. Jastremski, 430 F.3d 560, 562 (2d Cir. 2005) (noting the
three-year statute of limitations for § 1983 actions). Plaintiff also mentions a possible
antitrust claim in his motion to strike, but it is unclear what facts could give rise to this
claim, or why such a claim is so related to the underlying facts of this case that Plaintiff
should be permitted to add it to this action, as opposed to pursuing a separate suit against
Attorney Spector and his firm. Furthermore, to the extent that Plaintiff seeks to assert
any claim against the proposed co-defendants, such amendment would prejudice the
existing defendants in this suit. Discovery had already closed and multiple dispositive
motions had been filed when Plaintiff filed his motion seeking to add the new defendants.
Adding new parties at this point would be inequitable to the remaining defendants in this
action, and would be an inefficient use of judicial resources. Therefore, Plaintiff’s motion
Motion for Summary Judgment
Plaintiff has asserted claims against Defendants pursuant to § 1983 for false arrest
and illegal search and seizure in violation of his Fourth Amendment rights, for selective
enforcement and disparate treatment in violation of his Fourteenth Amendment rights,
and for peonage, in violation of his Thirteenth Amendmenth rights, in addition to a civil
rights conspiracy claim pursuant to § 1985, a Monell claim against the Guilford Police
Department, and several of state-law claims. Defendants argue that they are entitled to
summary judgment on each of these claims.
Plaintiff brings a claim for false arrest against Defendants Brooks and O’Connor
for his July 23, 2009 arrest pursuant to an arrest warrant. False arrest claims under § 1983
are “substantially the same as claims for false arrest or malicious prosecution under state
law.” Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003) (internal quotation marks
omitted). Under Connecticut law, “false imprisonment, or false arrest, is the unlawful
restraint by one person of the physical liberty of another.” Green v. Donroe, 186 Conn.
265, 267 (1982). To establish a claim for false arrest under 42 U.S.C. § 1983, a plaintiff is
required to show that “the defendant intentionally confined him without his consent and
without justification.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal
quotation marks omitted). A false arrest claim will fail if the defendant-officer had
probable cause to arrest the plaintiff. See, e.g., Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996) (noting that probable cause is “a complete defense to an action for false arrest”).
“While an arrest pursuant to a facially valid arrest warrant is presumed to be made with
probable cause, a plaintiff can demonstrate that his right not to be arrested without
probable cause was violated where the officer submitting the probable cause affidavit
acted with reckless disregard for the truth.” Martinetti v. Town of New Hartford, 12 F.
App’x 29, 32 (2d Cir. 2001) (internal citations and quotation marks omitted).
Furthermore, “[a]n arrest warrant procured by fraud, perjury or the misrepresentation or
falsification of evidence can overcome the presumption of probable cause.” Id. at 33
(internal citations and quotation marks omitted).
Plaintiff argues that the arrest warrant application submitted by Defendant
O’Connor contained knowing misrepresentations and false statements, and failed to
include potentially exculpatory evidence, such that the presumption of probable cause no
longer applies in this case. Specifically, Plaintiff disputes that he was working in the
direct area of the gun case in Mr. Torre’s basement, and claims that Mr. Torre lied about
the whereabouts of the firearm when he reported it missing. However, at his deposition,
Plaintiff admitted that he had no evidence that Defendant O’Connor knew anything in
the arrest warrant application was false:
The only single question that I have is, at the time that Detective
O’Connor drafted the arrest warrant, do you have any evidence
that indicates that he knew that anything in [it] was false?
No; that’s just an assumption. He’s saying like he just realized like
he didn’t have it, and he was saying—I remember, like I said, it
ain’t a crime to assume, but—No; I don’t think he—Just going off
of this, this is my first time seeing the police report, so I’m kind of
processing, but from what I’m reading, it looks like he’s not like—
Hold on. Ask the question one more time.
Okay. The question is not whether or not anything in there is true
or false; the only question that I have is, at the time Detective
O’Connor drafted the arrest warrant application, is there any
evidence that you have that shows that he knew that this statement
I don’t have no evidence.
(Pl.’s Dep. Tr. at 150–51.)
“A police officer may rely upon the statements of victims
and witnesses to determine the existence of probable cause for the arrest, regardless of the
ultimate accurateness or truthfulness of the statements.” Ritz v. Breen, No. 3:99CV2267
(CFD), 2002 WL 519095, at *5 (D. Conn. Mar. 11, 2002). As Plaintiff himself admitted,
there is no evidence in the record that Defendants knew or should have known that Mr.
Torre’s and Mrs. D’Orazio’s statements were false or misleading such that a jury could
reasonably conclude that Defendant O’Connor acted in reckless disregard of the truth
when he relied on these statements in the arrest warrant application.
Furthermore, Plaintiff has not put forth any evidence to indicate that Defendant
O’Connor himself misrepresented the facts in the arrest warrant application or ignored
potentially exculpatory evidence. The arrest warrant application indicates that Plaintiff
denied that he had seen the gun case or taken the gun and that he offered to take a lie
detector test to prove his innocence. (See Arrest Warrant Appl. at 3.) The application
also indicates that Mr. Torre initially believed he may have left his gun at work and
checked there before reporting it stolen. (See id. at 1.) Plaintiff also appears to argue that
Defendants failed to follow up on other potentially exculpatory evidence. For example,
Plaintiff claims that Defendants should have waited until his DNA and fingerprints could
be compared to the samples taken from the gun case before applying for an arrest
warrant. However, “[o]nce a police officer has a reasonable basis for believing there is
probable cause, he is not required to explore and eliminate every theoretically plausible
claim of innocence before making an arrest.” Ricciuiti v. N.Y.C. Transit Auth., 124 F.3d
123, 128 (2d Cir. 1997). Thus, Defendants’ failure to pursue every possible lead before
submitting the arrest warrant does not constitute fraud or misrepresentation and does
not indicate that they lacked probable cause for the arrest. Plaintiff has failed to put forth
any evidence from which a jury could conclude that his arrest warrant was procured by
fraud or perjury such that the presumption of probable cause is overcome in this case.
Even if Plaintiff did not commit the crimes for which he was arrested, that does not mean
that Defendants lacked probable cause at the time he was arrested. See Bernard v. United
States, 25 F.3d 98, 102 (2d Cir. 1994) (“[P]robable cause can exist even where it is based
on mistaken information, so long as the arresting officer acted reasonably and in good
faith in relying on that information.”) Therefore, Defendants’ motion for summary
judgment is granted on Plaintiff’s claim for false arrest.
Illegal Search and Seizure
Plaintiff asserts a claim against Defendants for illegal search and seizure.
Defendants obtained two search warrants in the course of their investigation of this case.
First, on July 23, 2009, Defendants O’Connor and Brooks submitted a search warrant
application to search Plaintiff’s home and truck for the missing gun, which was signed
that same day by Judge Vitale. (See Gun Search Warrant Appl., Ex. J to Defs.’ 56(a)1
Stmt.) Second, on July 28, 2009, Defendant O’Connor obtained a warrant to take a DNA
sample from Plaintiff. (See DNA Search Warrant Appl., Ex. A2 to Defs.’ 56(a)1 Stmt.)
Searches were conducted pursuant to both of these warrants and Defendants seized a
DNA sample from Plaintiff. Plaintiff appears to challenge the probable cause in support
of both of the warrants.
“In deciding whether probable cause exists for a search warrant, a judge must
determine whether ‘there is a fair probability that contraband or evidence of a crime will
be found in a particular place.’” United States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998)
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). A reviewing court must “accord
‘great deference’ to a judge’s determination that probable cause exists, and [ ] resolve any
doubt about the existence of probable cause in favor of upholding the warrant.” Id.
Plaintiff has not put forth any evidence based on which a jury could conclude that
Defendants lacked probable cause to search his home and truck and to obtain a DNA
sample. Based on the statements of Mr. Torre and Mrs. D’Orazio, Defendants Brooks
and O’Connor were able to determine that Plaintiff was the only individual other than the
residents of the home who had unsupervised access to the location where the firearm was
stored during the short time period in which it went missing. Furthermore, based on a
search of Plaintiff’s criminal records, they determined that he had a prior history of theft.
Thus, Defendants had probable cause to believe that Plaintiff had stolen the gun and
currently possessed the gun, such that they could obtain a warrant for Plaintiff’s DNA
and a warrant to search his home and truck for the missing firearm. To the extent that
Plaintiff argues that the witness statements on which Defendants relied were false, or that
Defendants failed to fully investigate the reported crime, which would undermine the
probable cause on which the warrants were based, the Court has already addressed and
rejected that argument.
Plaintiff also argues that Defendants seized his hard drive and GPS in the course
of their search of his home and truck. The search warrant for these locations did not
include these devices in its description of the items to be seized. The description of the
items to be seized under a warrant must be “sufficiently specific to permit the rational
exercise of judgment [by the executing officers] in selecting what items to seize.” United
States v. LaChance, 788 F.2d 856, 874 (2d Cir. 1986) (quoting United States v. Vargas, 621
F.2d 54, 56 (2d Cir. 1980)) (alterations in original). “If the scope of the search exceeds
that permitted by the terms of a validly issued warrant . . . the subsequent seizure is
unconstitutional.” Horton v. California, 496 U.S. 128, 140 (1990). Thus, these alleged
seizures were not conducted pursuant to the validly issued search warrant in this case.
However, Plaintiff has not put forth sufficient evidence based on which a
reasonable jury could infer that Defendants did in fact seize these devices. Defendant
O’Connor avers that the police did not seize Plaintiff’s hard drive or GPS device during
the course of their search (O’Connor Aff. ¶¶ 4–5), and the return of the search warrant
indicates that no items were seized (Return of Warrant). In his affidavit, Plaintiff states
only that these items were missing when he returned home, after spending twenty-one
days in jail. Plaintiff indicates that his truck had been left in the Comcast parking lot
during this time and that he could not locate his GPS device in his truck the day after his
release. He also states that his computer malfunctioned when he returned home, and
displayed an error message regarding the hard drive.
He does not allege that he
personally observed that the hard drive had been physically removed from the computer.
(See Pl.’s Stmt. at 13; Pl.’s Resp. to Defs.’ 56(a)1 Stmt. [Doc. # 110].) These statements do
not support the inference that Defendants Brooks and O’Connor seized the devices.
There is nothing in the record to indicate that Defendant Brooks was even present during
the search. Furthermore, nearly a month elapsed between the search of Plaintiff’s home
and truck and his discovery that the items were missing, during which time an untold
number of people had access to those locations. In the absence of evidence supporting a
reasonable conclusion that Defendants seized the devices or were involved in their
disappearance, Plaintiff cannot point to an outstanding question of material fact that
would preclude summary judgment on this claim. Therefore, Defendants’ motion for
summary judgment is granted with respect to Plaintiff’s search and seizure claims.
Selective Enforcement and Disparate Treatment
Plaintiff also brings a claim against Defendants for selective enforcement and
disparate treatment in violation of his rights under the Equal Protection clause of the
Fourteenth Amendment. To prevail on an equal protection claim, the Second Circuit
requires that a plaintiff show both (1) that he or she was treated differently from other
similarly situated individuals, and (2) that such differential 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.
Harlen Ass. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (internal citations
and quotation marks omitted). Defendants argue that Plaintiff has failed to point to any
similarly situated individuals who were not arrested under similar circumstances, and
therefore his equal protection claim fails. While the Second Circuit has noted that “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,” “[a] plaintiff alleging an equal protection claim under a theory of
discriminatory application of the law or under a theory of discriminatory motivation
underlying a facially neutral policy or statute, generally need not plead or show the
disparate treatment of other similarly situated individuals.” Pyke v. Cuomo, 258 F.3d 107,
108–09 (2d Cir. 2001).
Even if Plaintiff need not establish that similarly situated individuals were not
arrested under similar circumstances to sustain his equal protection claim, he has failed to
offer any evidence based on which a jury could reasonably conclude that Defendants
acted based on racial animus or other bad faith intent when they investigated and arrested
Plaintiff. The gravamen of Plaintiff’s claim appears to be that his arrest was racially
motivated. However, there is no evidence in the record that either Defendant Brooks or
Defendant O’Connor exhibited any racial animus toward Plaintiff. As discussed above,
Defendants, relying in good faith on witness statements and the results of their
investigation, had probable cause to suspect that Plaintiff had stolen Mr. Torre’s missing
firearm. There is nothing in the record to suggest that anything other than this probable
cause was the motivating factor for Plaintiff’s arrest. Therefore, Defendants’ motion for
summary judgment is granted with respect to Plaintiff’s equal protection claim.
Defendants move for summary judgment on Plaintiff’s peonage claim, arguing
that there is no evidence in the record based on which a jury could conclude that they
forced Plaintiff into compulsory service. In his memorandum in opposition, Plaintiff has
indicated that he plans to abandon his peonage claim. (See Pl.’s Opp’n [Doc. # 106] at 6–
7.) Therefore, Defendant’s motion for summary judgment is moot with respect to this
Civil Rights Conspiracy
Plaintiff also brings a claim for civil rights conspiracy in violation of 42 U.S.C.
§ 1985 against Defendants. “Section 1985(3) provides a civil cause of action only when
some other defined federal right has been violated; it creates no substantive rights.”
Knight v. City of New York, 303 F. Supp. 2d 485, 501 (S.D.N.Y. 2004) aff’d, 147 F. App’x
221 (2d Cir. 2005). Therefore, because the Court has granted summary judgment on each
of Plaintiff’s underlying constitutional claims, summary judgment must also be granted
on Plaintiff’s civil rights conspiracy claim under § 1985. See J.E. ex rel. Edwards v. Ctr.
Moriches Union Free Sch. Dist., 898 F. Supp. 2d 516, 555 (E.D.N.Y. 2012) (“Given the
undersigned has concluded that plaintiffs have failed to prove any claim establishing a
violation of a federal or constitutional right, there is no basis on which plaintiffs can seek
recovery under § 1985(3).”).
Plaintiff also alleges a Monell claim for municipal liability against the Guilford
Police Department. Because the Court has granted summary judgment on each of
Plaintiff’s constitutional claims, summary judgment must also be granted on Plaintiff’s
Monell claim. “Monell does not provide a separate cause of action for the failure by the
government to train its employees; it extends liability to a municipal organization where
that organization’s failure to train, or the policies or customs that it has sanctioned led to
an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d
Cir. 2006). Thus, Defendants’ motion for summary judgment is granted as to Plaintiff’s
State Law Claims
Having granted summary judgment on all of Plaintiff’s federal claims, the Court
declines to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims
for false imprisonment, malicious prosecution, assault and battery, defamation, evidence
tampering, entrapment, intentional infliction of emotional distress, negligent infliction of
emotional distress, coercion, harassment, and threatening. See 28 U.S.C. § 1367(c)(3);
Carnegie Mellon Univ. Cohill, 484 U.S. 343, 350 (1988) (“[I]n the usual case in which all
federal-law claims are eliminated before trial, the balance of factors to be considered
under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and
comity—will point toward declining to exercise jurisdiction over the remaining state-law
For the foregoing reasons, Plaintiff’s Motion [Doc. # 113] to Strike is DENIED
and Defendants’ Motion [Doc. # 100] for Summary Judgment is GRANTED on Plaintiff’s
§ 1983 claims, and supplemental jurisdiction over his state-law claims is declined. The
Clerk is directed to enter judgment for Defendants and to close this case.
IT IS SO ORDERED.
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 17th day of March, 2013.
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