Grenier et al v. West Haven et al

Filing 46

ORDER: Defendants' Motion 35 to Dismiss is GRANTED. Signed by Judge Janet Bond Arterton on 09/17/2012. (Flagg, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Grenier et al.,
Plaintiffs,

Civil No. 3:11cv808 (JBA)

v.
City of West Haven et al.,
Defendants.

September 17, 2012

RULING ON DEFENDANTS’ MOTION TO DISMISS
Plaintiffs Marc Grenier, administrator of the estate of Shengyl Rasim and James T.
Brennan, representative of Rasim’s minor children SCO and OCO filed suit against the City
of West Haven, Colleen Smullen, former Chief of the West Haven Police Department,
Sergeant Robert Urrata and Officer Christopher Stratton, and WHPD dispatchers Robert
Guthrie and Frank Meyer. Defendants move [Doc. # 28] to dismiss: (1) minor Plaintiffs’ loss
of consortium claim and constitutional claims in Count One; (2) Plaintiffs’ claims of
substantive due process violations, supervisory liability and municipal liability in Count One;
(3) Plaintiffs’ negligence claims against Smullen and Urrata in Count Two; and (4) Plaintiffs’
recklessness claims against Smullen and the City of West Haven in Count Three. Defendants
do not move to dismiss Plaintiffs’ equal protection claims in Count One. For the reasons
discussed below, Defendants’ motion [Doc. # 28] will be granted.1

1

Plaintiffs indicated in their opposition that they do not object to the dismissal of
Count Three as to the City of West Haven. At oral argument, Plaintiffs’ counsel agreed to
voluntarily withdraw several additional claims, without prejudice:
(1) Count One: Monell claim against the City of West Haven;
(2) Count One: Supervisory liability claim against Chief Smullen;
(3) Count Two: Negligence claim against Chief Smullen;
(4) Count Three: Recklessness claim against all Defendants (i.e., all of Count Three).

I.

Factual Allegations
Plaintiffs allege the following in their Amended Complaint. Selami Ozdemir was the

father of the minor plaintiffs SCO and OCI, and their mother was the plaintiffs’ decedent,
Ms. Shengyl Rasim. (Am. Compl. ¶ 7.) On January 17, 2010, “defendant dispatchers were
made aware on numerous instances that Shengyl Rasim was in dire need of police assistance
to protect her from imminent harm and death at the hands of Selami Ozdemir.” (Id. ¶ 8.)
Defendant dispatchers were “warned by telephone on numerous occasions” that
Selami Ozdemir was intoxicated and armed, and was pursuing his wife “for the purpose of
attacking her and inflicting severe bodily harm or death.” (Id. ¶ 9.) Defendant dispatchers
“failed to communicate the impending attack on Shengyl Rasim to officers of the West
Haven police department,” and Plaintiffs allege that the officers were “at or in the area of the
plaintiff’s decedent’s home and fully able to intercede prior to Selami Ozdemir’s murderous
attack on Shengyl Rasim.” (Id.)
A “short time” after the Defendant dispatchers’ failure to communicate, “Selami
Ozdemir arrived at the home brandishing [a] Glock, banged on the door, entered the home
and summarily executed Shengyl Rasim with multiple rounds from the Glock, turned the
gun on himself and committed suicide.” (Id. ¶ 10.) The minor Plaintiffs were at the home
and witnessed the murder/suicide and its immediate aftermath. (Id.)
Plaintiffs allege several specific failures on the part of each Defendant. Under Count
One, Plaintiffs allege that Defendant dispatchers deviated from “appropriate police and
dispatcher practices [which] amounted to neglect of duty . . . in direct violation of the
general orders of the department.” (Id. ¶ 11.) Plaintiffs also allege that Stratton’s response
“amounted to neglect of duty” (id. ¶ 12), and Sergeant Urrata’s failed to “properly train the
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defendant dispatchers and oversee and supervise [Stratton]” (id. ¶ 13). All Defendants are
alleged to have failed to intervene (id. ¶ 15a), to have discriminated against the Plaintiffs who
are “a Turkish immigrant and her children, on the basis of race, ethnicity or national origin”
(id. ¶ 15b), to have participated directly in the alleged constitutional violations (id. ¶ 16a),
to have “exhibited deliberate indifference” after having been informed “of the deficiencies
and violations” (id. ¶ 16b), and to have “created and maintained a policy, practice or custom
under which the unconstitutional conduct previously alleged[ly] occurred” (id. ¶ 16c).
Defendants are also alleged to have been grossly negligent in supervising and failing to
properly and effectively supervise subordinates who committed the wrongful acts. (Id. ¶
16d.) As a result of these alleged failures, Plaintiffs “sustained damages including”:
ante mortem pain and suffering; fear of death; death itself; destruction of
earning capacity and an inability to carry on and enjoy all of life’s activities.
The plaintiffs SCO and OCO were further damaged by witnessing and/or
viewing the execution of their mother and the suicide of their father, and/or
its immediate aftermath, by suffering resultant severe further emotional
distress and anguish, and through the permanent impairment to, and loss of,
their liberty interest and due process rights to the care, support and
companionship of their mother resulting from the defendants’
unconstitutional conduct.
(Id. ¶ 17.)
Under Count Two, all Defendants, except for Chief Smullen, are alleged to have been
negligent in violation of Connecticut law. Count Four, which is not challenged here, alleges
municipal liability pursuant to Conn. Gen. Stat. § 7-465 against Defendant City of West
Haven.

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II.

Discussion
In their motion to dismiss, Defendants argue that the minor Plaintiffs’ claims of loss

of consortium and § 1983 claims must be dismissed, as Connecticut does not recognize loss
of consortium claims for parent/child relationships, and family members cannot assert
derivative § 1983 claims. Relying on DeShaney v. Winnebago County Dep’t of Soc. Svcs., 489
U.S. 189 (1989) and its progeny, Defendants move to dismiss all Plaintiffs’ due process
claims in Count One for failure to state a claim pursuant to the “state created danger”
doctrine, and Plaintiffs’ claims of supervisory liability and municipal liability against
Smullen, Urrata, and the City.
A.

Minor Plaintiffs’ Constitutional Claims

As an initial matter, Plaintiffs agree that if the children’s claims are viewed as loss of
parental consortium claims, neither Section 1983 nor Connecticut state law would support
liability. (Pl.’s Opp’n [Doc. # 37] at 8.) Plaintiffs assert that the claims of the minor plaintiffs
should be considered in light of the “right to intimate association” jurisprudence, rather than
as loss of consortium claims or derivative § 1983 claims.
The Supreme Court has identified the right of intimate association as “a fundamental
element of personal liberty,” Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984), and
the Second Circuit has identified the right of intimate association in the familial context,
usually addressing claims that arise where state action is alleged to have interfered with the
“preservation of family integrity,” such as where children are seized by welfare authorities
without a hearing or court order. Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977)
(“Here we are concerned with the most essential and basic aspect of familial privacy[,] the
right of the family to remain together without the coercive interference of the awesome
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power of the state. This right to the preservation of family integrity encompasses the
reciprocal rights of both parent and children. It is the interest of the parent in the
‘companionship, care, custody and management of his or her children,’ . . . and of the
children in not being dislocated from the ‘emotional attachments that derive from the
intimacy of daily association,’ with the parent.”) (internal citations omitted).
Plaintiffs point to Greene v. City of New York, 675 F. Supp. 110 (S.D.N.Y. 1987) as
support for the viability of a § 1983 claim for deprivation of the parent–child relationship in
the wrongful death context. There, the Southern District upheld a claim brought by children
of a woman killed in a police shooting. 675 F. Supp. at 114 (“Latisha and Lisa Greene’s claims
are strongly supported by the decisions of a number of other circuit courts: those circuits
which have considered the question have concluded that there is a § 1983 claim for
deprivation of the parent–child relationship in the wrongful death context.”). What
distinguishes the cases cited by Plaintiffs, including Greene, is that all involve active conduct
on the part of the state officials resulting in injury, in contrast to this case, in which
Defendants’ inaction is claimed to have resulted in the death at the hands of a private third
party. See, e.g., Patel v. Searles, 305 F.3d 130, 137 (2d. Cir. 2002) (plaintiff’s claim that state
actors abridged his right of intimate association by knowingly spreading false information
implicating plaintiff in the murder of his mother and sister stated a claim that implicated
plaintiff’s right to intimate association); Rivera v. Marcus, 696 F. 2d 1016, 1025 (2d Cir. 1982)
(recognizing a right of intimate association for a sister (and foster parent) who alleged a
§ 1983 violation when her brother and half–sister were removed from her home by state
authorities).

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Defendants also contend that without an allegation that “the state action at issue was
specifically aimed at interfering with protected aspects of the parent–child relationship,”
Plaintiffs’ right of intimate association claim fails. (Def.’s Reply [Doc. # 42] at 3 (citing
Campos v. Weissman, Civ. No. 9:07–CV–1263 (FJS/RFT), 2009 WL 7771872, at *8 (N.D.N.Y.
Sept. 10, 2009)).) Indeed, although the Second Circuit has not explicitly ruled on this issue,
see Patel v. Searles, 305 F.3d 130, 137 (2d. Cir. 2002) (“this Circuit has never held that a
challenged action must be directed at a protected relationship for it to infringe on the right
to intimate association”), the majority of Circuits, and district courts within this Circuit,
have “expressly declined to find a violation of the familial liberty interest where the state
action at issue was not aimed specifically at interfering with the relationship.” Russ v. Watts,
414 F.3d 783, 787–88 (7th Cir. 2005) (collecting cases); see also Torres v. Howell,
3:03CV2227(MRK), 2006 WL 1525942, at *8 (D. Conn. May 30, 2006) (“The Court agrees
and concludes that there is no constitutional harm to a plaintiff’s parental rights cognizable
under Section 1983 unless the parent–child relationship itself has been targeted.”).
The Court’s research has not found, and Plaintiffs’ briefing does not identify, any
cases in which children have been permitted to pursue a claim of interference with the right
of intimate association without allegations that Defendants intended to interfere with the
parent–child relationship. Because no intent to interfere has been alleged, and because only
Defendants’ inaction is charged with causing the mother’s death, Defendants’ motion to
dismiss the minor Plaintiffs’ intimate association claim will be granted.
B.

Due Process Claim under State–Created Danger Exception

“As a general matter, . . . a State’s failure to protect an individual against private
violence simply does not constitute a violation of the Due Process Clause.” DeShaney v.
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Winnebago County Dep’t of Soc. Svcs., 489 U.S. 189, 197 (1989). Though the Second Circuit
has held that there are certain circumstances in which state actors may be liable if they
affirmatively created or enhanced the danger of private violence, see Dwares v. City of New
York, 985 F.2d 94, 99 (2d Cir. 1993), Defendants assert that Plaintiffs have failed to state a
plausible due process claim under this theory.
Plaintiffs argue that their state–created danger theory “rests on the fact that [the
theory] may also embrace situations where ‘the officers in some way had assisted in creating
or increasing the danger to the victim.’” (Pl.’s Opp’n at 16 (citing Dwares, 985 F.2d at 99).)
The issue is whether Plaintiffs’ allegations that the dispatchers “fail[ed] to convey to
responding police officers that Mr. Ozdemir was on his way to the family home in an ‘irate’
and ‘intoxicated’ condition,” that Officer Stratton “dismissively [left] 341 Blohm Street, . .
. making no effort . . . to locate Mr. Ozdemir in the vicinity,” and that Sergeant Urrata’s
conduct in improperly “directing” Stratton state a plausible claim under the state–created
danger exception.
The Second Circuit thoroughly reviewed the state of the state–created danger
doctrine in Okin v. Village of Cornwall–on–Hudson Police Dep’t, 577 F.3d 415, 428 (2d Cir.
2009), and specified that “the Due Process Clause may be violated when police officers’
affirmative conduct—as opposed to passive failures to act—creates or increases the risk of
private violence, and thereby enhances the danger to the victim.” The Second Circuit held
that “explicit approval of violence is but a subset of the affirmative conduct by state actors
that can enhance the danger to a victim. The affirmative conduct of a government official
may give rise to an actionable due process violation if it communicates, explicitly or implicitly,
official sanction of private violence.” Id. at 429 (emphasis added).
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Here, Plaintiffs have not alleged any “explicit approval” or “implicit approval” of
private violence. See, e.g., Okin, 577 F.3d at 429–30 (“Viewing the evidence in the light most
favorable to Okin, we find a genuine issue of material fact as to whether defendants
implicitly but affirmatively encouraged Sears’s domestic violence. A reasonable factfinder,
. . . could infer that defendants’ actions, such as discussing football with Sears during their
response to Okin’s complaint that he had beaten and tried to choke her, plainly transmitted
the message that what he did was permissible and would not cause him problems with
authorities. Moreover, the evidence suggests that the defendants repeatedly communicated
to Sears that his violence would go unpunished.”) (internal quotation marks omitted). As
discussed at oral argument, the allegations in the Amended Complaint are based entirely on
Defendants’ failure to act or indifferent response to threats of private violence. Without
allegations of affirmative (explicit or implicit) encouragement of private violence, claims of
substantive due process violations are not viable under the state–created danger doctrine.
Thus, the Court will dismiss Plaintiffs’ substantive due process claims. However, if
discovery reveals a good faith basis for appropriate factual pleadings that would state a
plausible claim of affirmative, implicit encouragement of private violence, a motion to
amend will be entertained.
C.

Supervisory Liability Against Sergeant Urrata

Defendants argue that as a result of the Iqbal decision, the grounds for supervisory
liability have been significantly narrowed, and that the “continued viability” of all five factors
enumerated in Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995) is in dispute as to supervisory
liability claims under § 1983. See, e.g., Vann v. Fischer, No. 11 CIV. 1958 JPO, 2012 WL
2384428, at *5 n.9 (S.D.N.Y. June 21, 2012) (“These are only the first and third scenarios
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listed in Colon in which personal involvement might be found, but the others have been
invalidated by the Supreme Court’s holding in Iqbal that ‘a supervisor’s mere knowledge of
his subordinate’s discriminatory purpose [does not] amount[ ] to the supervisor’s violating
the Constitution.’”) (citing Spear v. Hugles, No. 08 Civ. 4026(SAS), 2009 WL 2176725, at *2
(S.D.N.Y. July 20, 2009) (“[O]nly the first and third Colon factors have survived the Supreme
Court's decision in Iqbal”); Hodge v. Sidorowicz, No. 10 Civ. 428(PAC)(MHD), 2011 WL
6778524, at *16 (S.D.N.Y. Dec. 20, 2011), report and recommendation adopted sub nom;
Hodge v. Wladyslaw, 2012 WL 701150 (S.D.N.Y. Mar. 6, 2012) (holding that Iqbal limits the
analysis under Colon for constitutional claims of intentional discrimination, as seen here,
but not necessarily for other kinds of claims)).
The Second Circuit has not yet addressed claims of supervisory liability in the wake
of Iqbal. In Servin v. Anderson, No. 3:11cv539 (MRK), 2012 WL 171330, at *8 (Jan. 20, 2012)
the district court considered the five Colon factors in denying a defendant’s motion to
dismiss a supervisory liability claim, as will this Court. Under Colon, personal involvement
of a supervisory defendant may be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional violation,
(2) the defendant, after being informed of the violation through a report or
appeal, failed to remedy the wrong, (3) the defendant created a policy or
custom under which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom, (4) the defendant was grossly
negligent in supervising subordinates who committed the wrongful acts, or
(5) the defendant exhibited deliberate indifference to the rights of inmates
by failing to act on information indicating that unconstitutional acts were
occurring.
58 F.3d at 873.

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Even applying the five Colon factors, however, the Complaint is devoid of specific
factual allegations giving rise to a plausible claim of supervisory liability as to Sergeant
Urrata.2 Mere recitation of the Colon factors, without factual allegations showing direct
participation, or any specific facts tending to show deliberate indifference, is insufficient to
meet Iqbal’s plausibility standard. Further, the Amended Complaint references the creation
of “a policy or custom under which unconstitutional practices occurred,” but does not allege
any facts beyond that (id. ¶ 16c), and the remaining two factors—gross negligence and
deliberate indifference—are similarly conclusorily recited in paragraphs 16d and e of the
Complaint, without any specific factual allegations to show their plausibility. Thus,

2

The Amended Complaint alleges supervisory liability as follows:

The injuries, losses and/or death suffered by the plaintiffs, were caused by the
unconstitutional acts of the defendant supervisor, the defendant Chief, and the City of West
Haven, through its policies, practices and customs, in that they, upon information and belief
and the opportunity for further discovery:
a.
participated directly in the constitutional violations;
b.
the defendants, after being informed of the deficiencies and violations
previously alleged, failed to address or remedy the wrongs, but instead
exhibited deliberate indifference to them;
c.
the defendants created and maintained a policy, practice or custom under
which the unconstitutional conduct previously alleged occurred, or allowed
the continuance of such a policy, practice or custom despite their actual or
constructive knowledge of them;
d.
the defendants, despite actual or constructive knowledge of the deficiencies
and constitutional violations alleged herein were grossly negligent in
supervising and failing to properly and effectively supervise subordinates
who committed the wrongful acts; and/or,
e.
the defendants, with actual or constructive knowledge of the deficiencies and
constitutional violations alleged herein, exhibited deliberate indifference to
the constitutional rights of the plaintiffs.
(Am. Compl. ¶ 16a–e.)
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Defendants motion to dismiss the supervisory liability claim in Count One against Sergeant
Urrata will be granted.
D.

Negligence

At oral argument, Plaintiffs’ counsel voluntarily withdrew Count Two as against
Chief Smullen, and Defendants’ counsel represented that they would not challenge Count
Two as it pertains to Sergeant Urrata, the remaining Defendant–dispatchers, or Officer
Stratton. Thus, Plaintiffs claims against Sergeant Urrata, Defendant–dispatchers Guthrie and
Meyer, and Officer Stratton remain for adjudication.
IV.

Conclusion
For the reasons discussed above, Defendants’ motion [Doc. # 28] to dismiss is

GRANTED. The minor Plaintiffs’ constitutional claim alleging a violation of the right to
intimate association is dismissed, Plaintiffs’ substantive due process claims under the
state–created danger doctrine are dismissed, and Plaintiffs’ claim of supervisory liability
against Sergeant Urrata is also dismissed.

IT IS SO ORDERED.

/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 17th day of September, 2012.

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