Lewis v. City of West Haven et al

Filing 34

ORDER granting Defendants' partial 17 Motion to Dismiss; granting 23 Motion to Dismiss. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 9/25/2012. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RODERICK LEWIS
PLAINTIFF,

v.
CITY OF WEST HAVEN
CHIEF OF POLICE JOHN KARAJANIS
OFFICER SCOTT BLOOM
OFFIVER MICHAEL WOLF
DEFENDANTS.

:
:
: CIVIL ACTION NO. 3:11cv1451(VLB)
:
: SEPTEMBER 25, 2012
:
:
:
:
:
:

MEMORANDUM OF DECISION GRANTING DEFENDANTS’ [DKT. ##17,23] MOTION
TO DISMISS
The Defendants City of West Haven (the “City”) and the Chief of Police
John Karajanis (“Karajanis”) have moved to dismiss Counts VIII, IX, XIII and XIV
of Plaintiff Roderick Lewis’s (“Lewis”) Second Amended Complaint pursuant to
Fed. R. Civ. P. 12(b)(6) for failure to state a claim. In Count VIII of the Second
Amended Complaint, Lewis alleges that he was deprived of his constitutional
rights by Karajanis’s failure to train and supervise his subordinate officers who
engaged in excessive force and false imprisonment. In Count IX, Lewis alleges
that the City is liable for the negligence of its agents and employees pursuant to
Conn. Gen. Stat. §52-557n. In Count XIII, Lewis alleges that the City was
deliberately indifferent to his constitutional rights and in Count XIV he alleges
that the City is liable for indemnification pursuant to Conn. Gen. Stat. §7-465. For
the foregoing reasons, the Court grants Defendants’ motion to dismiss.
Background and Factual Allegations

1 

Lewis filed his Second Amended Complaint on January 25, 2012 asserting
constitutional violations pursuant to Section 1983, violations of the Connecticut
Constitution as well as several state law tort claims against the City, Karajanis,
Officer Scott Bloom (“Bloom”) and Officer Michael Wolf (“Wolf”). [Dkt.
#20,Second Amended Compl.(“SAC”)]. Lewis states in an introductory section to
the Second Amended Complaint that he is suing Karajanis, Bloom and Wolf in
their official and individual capacities. Id. at ¶¶5-7. Lewis has asserted 14
separate counts in the Second Amended Complaint. Each count contains
specific facts and allegations and is directed toward a particular defendant.
On October 7, 2010 at 2:25am, Lewis was walking on Elm Street in West
Haven when he encountered Officer Bloom. Id. at ¶¶8-10. Bloom was the handler
of a “police assigned K-9” called “Onyx.” Id. Bloom and Lewis “exchanged
verbal remarks at which time Police Officer Bloom attempted to apprehend the
Plaintiff.” Id. at ¶10. Lewis alleges he “fell to the ground and turned his stomach
into a defenseless position, surrendering to Police Officer Bloom’s commands”
where he was handcuffed by Bloom with his hands behind his back. Id. at ¶¶1112. Lewis further alleges that while “apprehended and in a defenseless position,
Onyx, without warning, seized and bit the Plaintiff,” and that Onyx continued to
“bite, scratch and/or gnarl at Plaintiff’s legs.” Id. at ¶¶13-14. Despite “screaming
out in extreme pain, Police Officer Bloom did nothing to stop Oynx from
continuing to bite, scratch, and/or gnarl” at his legs. Id. at ¶15.

Only after Lewis

sustained injuries, “Bloom commanded Onyx to stop biting, scratching, and/or
gnarling” and “[s]oon after an ambulance brought the Plaintiff to Milford Hospital
2 

where he received medical treatment for his injuries.” Id. at ¶¶16-17. Lewis
alleges in Counts I-VI, claims for excessive force and illegal seizure in violation of
the Fourth Amendment, violation of Connecticut State Constitution Article First,
section 7 and 9, assault, negligence, negligent infliction of emotional distress,
and intentional infliction of emotional distress against Bloom in connection with
the alleged police dog attack. Id. at p. 4-10.
On June 9, 2009, Lewis was a passenger in a vehicle traveling on Main
Street in West Haven which was stopped by Wolf. Id. at Count VII, ¶¶8-9. Wolf
ordered Lewis to step out of the vehicle, handcuffed him, and then placed him
into a squad car while Wolf searched the stopped vehicle. Id. at Count VII, ¶11.
Wolf arrested the driver of the vehicle for possession of narcotics. Id. at ¶¶12.
Wolf then ordered Lewis out of the squad car and pushed him up against the
stopped vehicle. Id. at Count VII, ¶13. Lewis alleges that he refused to submit to
Wolf’s “order, at which time Police Officer Wolf grabbed the Plaintiff by the throat
and told the Plaintiff that he did not have a choice.” Id. at Count VII, ¶14. Lewis
alleges that Wolf stood behind him while he was handcuffed and reached down
into the backside of his pants and searched his buttocks with his finger(s). Id. at
Count VII, ¶15. Lewis informed Wolf that he was hurting him. Id. at Count VII,
¶16. Wolf responded by making homosexual comments and saying “you know
you like it.” Id. at Count VII, ¶17. After searching Lewis’s buttocks with his
finger(s), Wolf then grabbed Lewis by the throat and stuck the same fingers into
his mouth and asked Lewis “how did it taste?” Id. at Count VII, ¶18. In Counts VII
and Counts X-XII, Lewis asserts claims for excessive force and false
3 

imprisonment in violation of the Fourth Amendment, assault, and intentional
infliction of emotional distress against Wolf in connection with the alleged cavity
search. Id. at p. 10-13,16-18. 
In Count VIII, Lewis asserts a Section 1983 claim against Karajanis. Lewis
does not identify whether his Count VIII claim against Karajanis is an individual or
official capacity claim or both. Lewis alleges that he filed a written Citizen
Complaint Statement form with the Department of Police Services in the City of
West Haven. Id. at Count VIII, ¶158. Lewis asserts that Karajanis “failed to secure
the Plaintiff, unlawfully deprived Plaintiff, or cause the plaintiff to be unlawfully
deprived of rights secured to him by the United States Constitution” in a variety
of ways. Lewis alleges that Karajanis “failed or refused to promulgate and
enforce appropriate guidelines, regulation, policies, practices or customs”
regarding (i) “the arrests of person by police officers of the West Haven Police
Department;” (ii) the use of force against persons by police officers of the West
Haven Police Department;” (iii) and “the training of Police Officer Bloom and
Police Officer Wolf in the performance of their duties and conduct towards
persons.” Id. at Count VIII, ¶158a-c. Lewis further asserts that Karajanis “failed
or refused to recognize the dangerous and violent propensities of Police Officer
Bloom and Police Officer Wolf toward the Plaintiff and to take corrective
disciplinary or educational actions regarding such dangerous and violent
propensities” and that he “failed or refused to adequately train Police Officer
Bloom in the proper use, control and/or command of Onyx.” Id. at Count VIII,
¶158d-e. Lewis further alleges that Karajanis “failed or refused to recognize
4 

when he knew or should have known the dangerous and violent propensities of
Onyx and to take corrective disciplinary or educational actions regarding such
dangerous and violent propensities.” Id. at Count VIII, ¶158f. Lastly, Lewis
alleges that Karajanis “failed or refused to investigate Police Officer Wolf
regarding the Plaintiff’s citizen complaint…[that] Wolf performed a cavity/strip
search without any probable cause and/or justification and that “he failed or
refused to properly enforce appropriate guidelines, regulations, policies,
practices, procedures or customs regarding investigating citizen’s complaints
against West Have Police officers.” Id. at Count VIII, ¶158, g-h. 
In Count XIII, Lewis asserts a Section 1983 claim against the City for
“deliberate indifference” in connection with the failure to investigate Lewis’s
complaint regarding Wolf’s improper cavity search. Id. at Count XIII, ¶¶20-21.
Lewis alleges that the City’s “formal complaint policy was flawed and that these
flaws created a widespread custom which consistently discouraged, ignored and
discarded citizen complaints.” Id. at Count XIII, ¶22. Lewis contends that after he
filed his complaint, he was harassed and subjected to excessive force by
members of the West Haven Police Department “included but not to Police Officer
Wolf” and that “West Haven Police Department’s custom of discouraging,
ignoring and/or discarding Plaintiff’s citizen complaint reflects deliberate
indifference to Plaintiff’s constitutional rights.” Id. at Count XIII, ¶¶23-24.
In Count IX, Lewis asserts a state law cause of action against the City for
negligence pursuant to Conn. Gen. Stat. §52-557n. Id. at Count IX. Lewis alleges
that the City is liable for the negligent acts or omissions of Bloom, Wolf, and
5 

Karajanis. Id. at Count IX, ¶¶162-63. Lastly in Count XIV, Lewis asserts a claim
for indemnification by the City pursuant to Conn. Gen. Stat. §7-465 asserting the
City is liable to indemnify Bloom, Wolf and Karajanis. Id. at Count XIV, ¶1.  
Legal Standard
“‘To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.’”
Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). While Rule 8 does not require detailed factual allegations, “[a]
pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the
elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
U.S. at 678 (citations and internal quotations omitted). “Where a complaint
pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short
of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court should
follow a “two-pronged approach” to evaluate the sufficiency of the complaint. Hayden v.
Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.’” Id. (quoting Iqbal, 129 S.Ct. at 1949-50). “At the second step, a

6 

court should determine whether the ‘well-pleaded factual allegations,’ assumed to be
true, ‘plausibly give rise to an entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. 679).
“The plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(internal quotations omitted).

Analysis
I.

Counts VIII and XIII claims – Municipal Liability

Defendants have moved to dismiss Lewis’s Count VIII claim against

Karajanis and his Count XIII claim against the City on the basis that the factual
allegations fail to state a plausible cause of action under Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). The allegations against the City in Count XIII are
essentially identical to the allegations against Karajanis in Count VIII and
therefore the Court will examine the sufficiency of the pleadings in both Counts
together. Plaintiffs can only sue a municipality under 42 U.S.C. § 1983 for
constitutional violations of its employees occurring pursuant to an official policy
or custom. Monell, 436 U.S. at 694. “A Section 1983 suit against a municipal
officer in his official capacity is considered a suit against the municipality itself,
and therefore the officer may be held liable only if the municipality is liable for an
unconstitutional ‘policy’ or ‘custom’ under the principles of Monell.” Oliphant v.
Villano, No.3:09cv862(JBA), 2011 WL 3902741, at *4 n.8 (D. Conn. Sept. 6, 2011)
(citations omitted).

7 

The Court notes that “[s]upervisory liability is a concept distinct from
municipal liability, and is ‘imposed against a supervisory official in his individual
capacity for his own culpable action or inaction in the training, supervision, or
control of his subordinates.’” Odom v. Matteo, 772 F.Supp.2d 377, 403 (D. Conn.
2011) (quoting Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir.1987)). “An individual
cannot be held liable for damages under § 1983 merely because he held a high
position of authority,” or was a supervisor. Back v. Hastings On Hudson Union
Free School Dist., 365 F.3d 107, 127 (2d Cir. 2004) (internal quotation marks and
citations omitted). Instead, supervisory liability may be established by the
following factors articulated in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995):
(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 ... by failing to
act on information indicating that unconstitutional acts were occurring.
Id. 1
Here, the Defendants have only moved to dismiss the claims against Karajanis on
the basis that Lewis has failed to state a claim for municipal liability and therefore
they appear to be seeking only dismissal of the official capacity claims against
Karajanis. As noted above, Lewis does not specify whether the claims asserted
against Karajanis in Count VIII are official or individual capacity claims or both.

1
 The Court notes that the recent Supreme Court decision in Ashcroft v. Iqbal 129

S. Ct. 1937 (2009) has called into question whether all of the Colon factors remain
a basis for establishing supervisory liability and that “no clear consensus has
emerged among the district courts within this circuit.” Aguilar v. Immigration and
Customs Enforcement Div. of the United States, No.07CIV8224, 2011 WL 3273160,
at *10 (S.D.N.Y. August 1, 2011) (collecting cases).

8 

Construing the claims in Count VIII, it appears they allege both official and
individual capacity claims. Accordingly, since the Defendants have not moved to
dismiss the claims on the basis that Lewis has failed to state a claim for
supervisory liability under the Colon factors, these claims remain extant for
summary judgment and trial.
The Court will therefore examine whether the allegations in Counts VIII and
XIII fail to state a claim for municipal liability under Monell and its progeny. “In
order to prevail on a claim against a municipality under section 1983 based on
acts of a public official, a plaintiff is required to prove: (1) actions taken under
color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4)
damages; and (5) that an official policy of the municipality caused the
constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). A municipality
may be “held liable if a plaintiff proves the municipality violated a federally
protected right through (1) municipal policy, (2) municipal custom or practice, or
(3) the decision of a municipal policymaker with final policymaking authority.”
Zherka v. DiFiore, 412 Fed.Appx. 345, 348 (2d Cir. 2011) (citing Monell v. Dep’t of
Soc. Servs., 436 U.S. 658. 695 (1978)).
A plaintiff may “establish municipal liability by showing that a municipal
policy or custom existed as a result of the municipality's deliberate indifference
to the violation of constitutional rights, either by inadequate training or
supervision.” Russo v. City of Hartford, 341 F. Supp. 2d 85, 107 (D. Conn. 2004).
“A municipal policy may be pronounced or tacit and reflected in either action or
9 

inaction. In the latter respect, a city's policy of inaction in light of notice that its
program will cause constitutional violations is the functional equivalent of a
decision by the city itself to violate the Constitution.” Cash v. County of Erie, 654
F.3d 324, 334 (2d Cir. 2011) (internal quotation marks and citations omitted).
“Where a § 1983 plaintiff can establish that the facts available to city
policymakers put them on actual or constructive notice that the particular
omission is substantially certain to result in the violation of the constitutional
rights of their citizens, the dictates of Monell are satisfied.” City of Canton v.
Harris, 489 U.S. 378, 396 (1989). “[W]here a policymaking official exhibits
deliberate indifference to constitutional deprivations caused by subordinates,
such that the official's inaction constitutes a deliberate choice, that acquiescence
may be properly thought of as a city policy or custom that is actionable under §
1983.” Amnesty Am. v. Town of W. Hartford, 361 F. 3d 113, 126 (2d Cir. 2004)
(internal quotation marks omitted).
“As the Supreme Court has cautioned, ‘deliberate indifference’ is ‘a
stringent standard of fault’ and … necessarily depends on a careful assessment
of the facts at issue in a particular case” Cash, 654 F.3d at 334 (quoting Connick
v. Thompson, 131 S.Ct. 1350, 1360 (2011)). The Second Circuit has instructed that
the “operative inquiry is whether those facts demonstrate that the policymaker's
inaction was the result of ‘conscious choice’ and not ‘mere negligence.’” Id.
(citations omitted). Deliberate indifference then “may be inferred where ‘the need
for more or better supervision to protect against constitutional violations was
obvious,’ but the policy maker ‘fail[ed] to make meaningful efforts to address the
10 

risk of harm to plaintiffs.’” Id. (quoting Vann v. City of New York, 72 F.3d 1040,
1049 (2d Cir. 1995) and Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007)). In
addition, “a plaintiff must prove that “‘action pursuant to official municipal policy’
caused the alleged constitutional injury.” Cash, 654 F.3d at 333 (quoting Connick
v. Thompson, 131 S. Ct. 1350, 1359 (2011)).
A claim for failure to train “will trigger municipal liability only where the
failure to train amounts to the deliberate indifference to the rights of those with
whom the state officials will come into contact.” Young v. County of Fulton, 160
F.3d 899, 903 (2d Cir. 1998) (internal quotation marks and citation omitted). The
Second Circuit has outlined “three showings required to support a claim that a
municipality’s failure to train amounted to ‘deliberate indifference’ to the rights of
citizens.” Id. at 903-904. Therefore to establish a claim of inadequate training,
Plaintiffs mush show that (1) “a policymaker of the municipality knows to a moral
certainty that its employees will confront a given situation”; (2) that the “situation
either presents the employee with a difficult choice of the sort that training or
supervision will make less difficult or that there is a history of employees
mishandling the situation”; and (3) that “the wrong choice by the employee will
frequently cause the deprivation of a citizen’s constitutional rights.” Walker v.
City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992) (citations omitted).
Therefore a municipality “cannot be liable if the need for such training was not
obvious.” Russo v. City of Hartford, 341 F. Supp. 2d at 109 (citing Vann, 72 F.3d
at 1049).

“An obvious need may be demonstrated through proof of repeated

complaints of civil rights violations; deliberate indifference may be inferred if the
11 

complaints are followed by no meaningful attempt on the part of the municipality
to investigate or to forestall further incidents.” Vann, 72 F.3d at 1049. In addition,
“a pattern of misconduct, while perhaps suggestive of inadequate training, is not
enough to create a triable issue of fact on a failure-to-train theory. The plaintiff
must offer evidence to support the conclusion that the training program was
inadequate, not [t]hat a particular officer may be unsatisfactorily trained or that
an otherwise sound program has occasionally been negligently administered,
and

that

a

hypothetically

well-trained

officer

would

have

avoided

the

constitutional violation.” Okin v. Village of Cornwall-On-Hudson Police Dept., 577
F.3d 415, 440-41 (2d Cir. 2009) (internal quotation marks and citations omitted).
Here, Lewis has failed to allege facts which plausibly give rise to an
entitlement to relief under Monell. Lewis has conclusory alleged that Karajanis
failed to supervise Bloom and Wolf and therefore has failed to state a failure to
supervise claim under Monell. Lewis has conclusory stated that Karajanis failed
or refused to recognize the dangerous and violent propensities of Officers Bloom,
Wolf, and police dog Onyx and to take corrective actions. [Dkt. #20, SAC, Count
VII, ¶158d-f].

However, Lewis has not pled any facts that prior to the police dog

attack by Bloom and Onyx or the cavity search by Wolf, Karajanis was aware or
should have been aware of the dangerous and violent propensities of Bloom,
Wolf or Onyx. Further, Lewis has not alleged any facts that Karajanis or other
municipal actors had “actual or constructive notice” that their alleged failure to
supervise was substantially certain to result in the police dog attack or the
inappropriate cavity search.

Although Lewis does allege that he complained
12 

about Wolf’s conduct and that Karajanis and the City made no meaningful
attempt to investigate his complaint, Lewis’s complaint about the improper cavity
search by Wolf would not put Karajanis or the City on either actual or
constructive notice that a different officer would engage in an entirely different
type of unconstitutional conduct. Consequently, Lewis’s complaint about Wolf
did not reveal that Bloom or Onyx had dangerous and violent propensities.
Lastly, Lewis has failed to allege any facts that Karajanis’s or the City’s conduct
was the cause of his subordinates’ purported unconstitutional conduct. Lewis’s
conclusory allegations regarding Karajanis’s failure to supervise are facts that
are “merely consistent with a defendant’s liability,” which stops far short of “the
line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at
678 (citations and internal quotations omitted).  
Likewise, Lewis has failed to plausibly state a failure to train claim under
Monell. Lewis conclusory alleges that Karajanis failed or refused to promulgate
guidelines, regulation, policies, practices or customs” regarding (i) “the arrests of
person by police officers of the West Haven Police Department;” (ii) the use of
force against persons by police officers of the West Haven Police Department;”
(iii) “the training of Police Officer Bloom and Police Officer Wolf in the
performance of their duties and conduct towards persons;” and (iv) the training
of “Police Officer Bloom in the proper use, control and/or command of Onyx.”
[Dkt. #20, SAC, Count VII, ¶158a-c, e].

These allegations amount to naked

assertions devoid of further factual enhancement that do not pass muster under
Iqbal. Lewis has failed to allege any facts that plausibly state that the Police
13 

Department’s training was inadequate. At best, Lewis has alleged that Bloom and
Wolf were unsatisfactorily trained. However, allegations that a particular officer
was unsatisfactorily trained are not sufficient to establish liability under Monell.
Okin, 577 F.3d at 440-41. Indeed, Lewis merely contends that since he was the
subject of unconstitutional conduct that the City’s training must therefore be
deficient.

There are no allegations that the need for additional or different

training was obvious.

As discussed above, although Lewis alleges he

complained about Wolf’s improper cavity search, his complaint would not have
put Karajanis or the City on notice of the need to train about the use of police
dogs. Lewis’s complaint about Wolf’s improper cavity search is therefore not
sufficiently related to Bloom’s improper use of a police dog to demonstrate that
there was an obvious need for additional or different training. Lastly, Lewis has
failed to plausibly state that Karajanis’s or the City’s conduct in failing to train
was the cause of his subordinates’ purported unconstitutional conduct.
Consequently, Lewis has failed to make well-pleaded allegations which plausibly
give rise to an entitlement to relief for a failure to train claim under Monell.
Lastly, Lewis alleges that Karajanis’s and the City’s failure to investigate
his complaint about Wolf represented a widespread custom of ignoring citizen
complaints. [Dkt. #20, SAC, Count XIII, ¶¶20-22]. However, Lewis has failed to
allege any facts demonstrating how the purported widespread custom of ignoring
citizen complaints caused Wolf to subject him to an improper cavity search or
Bloom to subject him to a police dog attack. Moreover, Lewis has not alleged
that the police dog attack by Bloom was made in retaliation for his complaint
14 

about Wolf.

Lewis has not alleged that Bloom was motivated or even aware of

his complaint about Wolf. Consequently, Lewis has failed to plausibly plead that
the purported custom of ignoring citizen complaints caused his constitutional
injuries. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (“Absent a showing
of a chain of causation between an official policy or custom and the plaintiff's
injury, Monell prohibits a finding of liability against a municipality.”).    Lewis also
conclusory alleges that after his complaint, he was subjected to harassment and
excessive force by the West Haven Police Department which reflected deliberate
indifference to his constitutional rights. [Dkt. #20, SAC, Count XIII, ¶¶23-24].
However, he has not identified whether this “harassment” deprived him of a
constitutional right nor has he identified the other incidents of excessive force
that he claims was caused by the City’s custom of ignoring citizen complaints.
Such allegations are “no more than conclusions” and “are not entitled to the
assumption of truth.” Iqbal, 129 S.Ct. at 1949-50. For all of the above reasons,
Lewis has failed to state a claim for municipal liability under Monell. The Court
therefore dismisses the official capacity claims against Karajanis in Count VIII
and the claims against the City in Count XIII.
II.

Count IX Claim – Negligence under Conn. Gen. Stat. §52-557n

Defendants move to dismiss Lewis’s claim for negligence against the City
under Conn. Gen. Stat. §52-557n on the basis that the City is not liable for
conduct that involves the use of discretion or for acts or omissions which
constitute criminal conduct, fraud, actual malice or wilful misconduct under
Section 52-557n. [Dkt. #23, Motion to Dismiss, p. 12-15]. Defendants contend that
15 

since the conduct alleged by Lewis either involved the use of discretion or was
conduct that involved actual malice or willful misconduct, Lewis has failed to
plausibly state a claim for relief under Conn. Gen. Stat. §52-557n against the City.
The Connecticut legislature codified the tort liability of municipalities in
Conn. Gen. Stat. § 52–557n, which in subsection (a)(1) thereof states that
“[e]xcept as otherwise provided by law, a political subdivision of the state shall
be liable for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent thereof
acting within the scope of his employment or official duties...” “However, Section
52–557n extends the same discretionary act immunity that applies to municipal
officials to the municipalities themselves. Section 52–557n(a)(2)(B) states that
municipalities will not be liable for ‘negligent acts or omissions which require the
exercise of judgment or discretion as an official function of the authority
expressly or impliedly granted by law.’” Odom, 772 F.Supp. at 399 (quoting Conn.
Gen. Stat. § 52–557n(a)(2)(B)).

“The hallmark of a discretionary act is that it

requires the exercise of judgment … In contrast, [m]inisterial refers to a duty
which is to be performed in a prescribed manner without the exercise of
judgment or discretion.” Coe v. Bd. of Educ., 301 Conn. 112, 118 (2011) (internal
quotation marks and citation omitted).
As Defendants point out, the training and supervision of police officers are
considered discretionary acts under Connecticut law. See, e.g., Evoy v. City of
Hartford, No.CIVA397CV2400CFD, 2001 WL 777431, at *2 (D. Conn. June 25, 2001)
(“Connecticut law provides that a municipality's acts or omissions involving the
16 

failure to screen, hire, train, supervise, control, and discipline police officers are
discretionary, governmental acts as a matter of law.”); Hughes v. City of Hartford,
96

F.Supp.2d

114,

119

(D.Conn.2000)

(“[E]xtensive

and

near-unanimous

precedent in Connecticut clearly demonstrates that ... the failure to screen, hire,
train, supervise, control and discipline [police] ... are discretionary acts as a
matter of law.”) (collecting cases); Brooks v. Sweeney, No.CV065005224, 2007 WL
1976089, at *1 (Conn. Super. Ct. June 12, 2007) (“supervision is generally
considered to be a discretionary act” for purposes of 52-557n(a)(2)(B)). Here, the
alleged conduct of Karajanis in failing to supervise and train is clearly
discretionary conduct under Connecticut law. Consequently, the City is entitled
to immunity as to Karajanis’s alleged conduct.
Defendants argue that the acts of Bloom and Wolf in arresting and
searching Lewis also constitute discretionary acts. It is well established that the
“manner in which a police officer makes an arrest fits within the framework of the
day to day discretion exercised by police officers.” Belanger v. City of Hartford,
578 F.Supp.2d 360, 367 (D.Conn. 2008); see also Swanson v. City of Groton,
No.X04CV030104164S, 2007 WL 4105513, at *6 (Conn. Super. Ct. Oct. 26, 2007)
(“Decisions regarding the scope of an investigation whether probable cause for
an arrest exists, whether information is speedy or not, whether to seek an arrest
warrant or make a warrantless arrest, when and how best to pursue a wanted
person, the number of police officers that are needed to conduct and complete an
investigation, whether coordination with other agencies is necessary during an
investigation, the search for a suspect or the pursuit of that suspect is
17 

appropriate and the proper supervision of subordinates-all require a municipal
police officer to employ wide discretion and to exercise judgment. As municipal
employees engaged in discretionary functions, these defendants possess
qualified governmental immunity from liability unless some recognized exception
dissolves that immunity.”) (citing Tyron v. North Branford, 58 Conn.App. 702, 708
(2000)).
Lewis concedes that the alleged conduct of Wolf, Bloom and Karajanis was
discretionary but instead argues that immunity doesn’t apply in the instant case
because their conduct falls into the identifiable person-imminent harm exception
to governmental immunity or the malicious or wanton conduct exception.

[Dkt.

#24, Opp. to Motion to Dismiss, p. 8]. Indeed under Connecticut law
there are three exceptions to discretionary act immunity. Each of these
exceptions represents a situation in which the public official's duty to act is
[so] clear and unequivocal that the policy rationale underlying
discretionary act immunity—to encourage municipal officers to exercise
judgment—has no force.... First, liability may be imposed for a
discretionary act when the alleged conduct involves malice, wantonness or
intent to injure.... Second, liability may be imposed for a discretionary act
when a statute provides for a cause of action against a municipality or
municipal official for failure to enforce certain laws.... Third, liability may be
imposed when the circumstances make it apparent to the public officer that
his or her failure to act would be likely to subject an identifiable person to
imminent harm.... Although the determination of whether official acts or
omissions are ministerial or discretionary is normally a question of fact for
the fact finder ... there are cases where it is apparent from the complaint....
[T]he determination of whether an act or omission is discretionary in nature
and, thus, whether governmental immunity may be successfully invoked
pursuant to § 52–557n (a)(2)(B), turns on the character of the act or
omission complained of in the complaint.”
Mills ex rel. Mills v. The Solution, LLC,No.32792, 2012 WL 3822199, at *4 (Conn.
App. Ct. Sept. 11, 2012) (internal quotation marks and citations omitted).

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Here, Lewis has failed to allege that Karajanis’s conduct in failing to train
and supervise was malicious or wanton.

Moreover, the allegations do not

establish that it was apparent to Karajanis that his failure to act would likely
subject Lewis to imminent harm. Therefore, Lewis’s allegations as to Karajanis
do not establish that any exception to discretionary act immunity should apply.
However, Lewis’s allegations as to Bloom and Wolf’s conduct do fall within the
exceptions for malicious or wanton conduct and identifiable person-imminent
harm as it would be apparent to both Wolf and Bloom that their acts would
subject Lewis to imminent harm. See Belanger, 578 F.Supp.2d at 367 (noting that
courts have “applied the identifiable person-imminent harm exception in the
context of excessive force claims based on affirmative acts where the harm to the
individual is so foreseeable as to create just such a duty of care” and holding that
such exception applied to a police officer’s conduct in striking the plaintiff in the
face with a baton).
However, Section 52-557n(a)(2)(A) excludes from municipal liability “[a]cts
or omissions of any employee, officer or agent which constitute criminal conduct,
fraud, actual malice or wilful misconduct.” Id. “The Connecticut Supreme Court
has construed ‘wilful misconduct’ to be synonymous with ‘intentional conduct.’”
Milardo v. City of Middletown, No.3:06CV01071(DJS), 2009 WL 801614, at *10 (D.
Conn. Mar. 25, 2009) (citing Pane v. City of Danbury, 267 Conn. 669, 685 (2004)).
“Therefore, a municipality cannot be held liable for the intentional conduct of its
employees under Conn. Gen. Stat. § 52-557n.” Id.

Here, Lewis admits that the

alleged acts of Bloom and Wolf were intentional and malicious. Consequently
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pursuant to Section 52-557n(a)(2)(A), the City cannot be liable for either Bloom or
Wolf’s acts. See, e.g., Daniels v. City of New Haven, No.CV010451523S, 2007 WL
1414072, at *5 (Conn. Super. Ct. April 18, 2007) (holding that under Section 52557n(a)(2)(A), the city could not be liable for employee’s alleged false
imprisonment or intentional infliction of emotional distress); Milardo, 2009 WL
801614, at *10 (holding that city could not be liable for trespass or intentional
infliction of emotional distress).

Although Bloom and Wolf’s conduct do fall

within the exceptions for discretionary act immunity, Section 52-557n(a)(2)(A)
precludes liability against the municipality for such conduct.
Since Lewis has asserted a claim for negligence under Section 52-557n
solely against the City, Section 52-557n(a)(2)(A) bars the claim as to conduct of
Bloom and Wolf and discretionary act immunity applies to bar the claim as to the
conduct of Karajanis pursuant to Section 52-557n(a)(2)(B).

The Court therefore

dismisses Lewis’s Count IX against the City in its entirety.
III.

Count XIV Claim – Indemnification under Conn. Gen. Stat. §7-465

Defendants moved to dismiss Lewis’s Count XIV claim for indemnification
of Wolf and Karajanis under Conn. Gen. Stat. §7-465 on the basis that Lewis has
failed to alleged that he provided the statutorily required written notice of his
claims against Wolf or Karajanis. Defendants note that Lewis has alleged that he
provided the required notice as to his claims against Bloom. Section 7-465 states
in relevant part:
Any town, city or borough . . . shall pay on behalf of any employee of such
municipality … all sums which such employee becomes obligated to pay
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by reason of liability imposed upon such employee by law for damages
awarded for infringement of any person’s civil rights or for physical
damages to person or property. . . No action for personal physical injuries
or damages to real or personal property shall be maintained against such
municipality and employees jointly unless such action is commenced
within two years after the cause of action therefore arose and written notice
of the intention to commence such action and of the time when and the
place where the damages were incurred or sustained has been filed with
the clerk of such municipality within six months after such cause of action
of action accrued.
Id. Courts in Connecticut have held that an allegation of compliance with the
notice provision is required under Conn. Gen. Stat. §7-465.

Adams v. Cromwell,

No.CV9605643464, 1998 WL 99284, at *2 (Conn. Super. Ct. Feb. 27, 1998)
(collecting cases).
Lewis concedes that notice was not provided as to his claims against Wolf,
but claims that notice was provided as to Counts I-VI against Bloom and Count
VIII against Karajanis. [Dkt. #24, p.15]. Lewis requests that this Court grant leave
to amend the complaint to allege that such notice was provided as to the claims
against Bloom and Karajanis. Id. Consequently, the Court dismisses Lewis’s
claim for indemnification as to Wolf and grants Lewis’s leave to amend his
complaint to allege that he provided the required notice as to his claims against
Bloom and Karajanis.
Conclusion
Based upon the above reasoning, Defendants’ [Dkt. ## 17,23] motion to
dismiss is GRANTED. The Court dismisses the claims against the City in Counts
XIII and IX. The Court further dismisses the official capacity claims against
Defendant Karajanis in Count VIII. The Court also dismisses Plaintiff’s Count XIV
21 

claim for indemnification as to Defendant Wolf but grants Plaintiff leave to amend
his Count XIV claim as to Defendants Karajanis and Bloom.

IT IS SO ORDERED.

________/s/__ ________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 25, 2012

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