Rose v. Waterbury et al
Filing
30
ORDER granting in part and denying in part 14 Motion to Dismiss; granting 16 Motion to Dismiss. See attached memorandum of decision. The Clerk is directed to terminate Plaintiff Isler as a Plaintiff in this action and the Waterbury Police Department as a Defendant in this action. Signed by Judge Vanessa L. Bryant on 3/12/2013. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SHANEKA R. ROSE, as ADMNISTRATRIX
OF THE ESTATE OF MARCUS GREGORY
BROWN and MICHAEL ISLER
PLAINTIFF,
v.
CITY OF WATERBURY ET AL.,
DEFENDANTS.
:
:
:
:
: CIVIL ACTION NO. 3:12cv291(VLB)
:
: MARCH 21, 2013
:
:
:
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ [DKT. ##14,16] MOTIONS TO DISMISS
The Plaintiffs, Shaneka N. Rose (“Rose”), as administratrix of the estate of
Marcus Gregory Brown (“Brown”), and Michael Isler (“Isler”),1 father of Brown,
bring this action against Defendants, City of Waterbury, Waterbury Police
Department, Officer Adrian Sanchez2 and “John Does I-XX” (collectively referred
to herein as the “City”) as well as against Saint Mary’s Hospital (the “Hospital”)
asserting several 42 U.S.C.§1983 claims as well as state law tort claims in
connection Brown’s death while in the Waterbury Police’s custody. The Hospital
has filed a motion to dismiss the entire complaint as against it while the City has
filed a partial motion to dismiss certain claims pursuant to Fed. R. Civ. P. 12(b)(1)
and 12(b)(6). For the foregoing reasons, the Court GRANTS IN PART AND
DENIES IN PART Defendants’ motions to dismiss.
Background
1
While the Amended Complaint names this Plaintiff as Michael Isler, the
Plaintiffs’ Initial Complaint, as well as their Partial Opposition to City of
Waterbury’s Partial Motion to Dismiss, name him is Isler Brown.
2
The Amended Complaint names this Defendant as Adrienne Sanchez, but this
appears to be a typographical error.
1
The Plaintiffs have asserted the following claims in their amended
complaint: (Count I) false arrest; (Count II) wrongful imprisonment; (Count III)
assault; (Count IV) battery; (Count V) negligence; (COUNT VI) violation of civil
rights; (Count VII) punitive damages; and (Count VIII) wrongful death. In
addition, the Plaintiffs allege that Isler is the father of Brown and that Shankea
Rose is the administratrix of Brown’s estate. Id. at ¶§2-3. There are no further
allegations regarding Isler other than his relationship to the decedent in the
amended complaint.
The following facts are taken from Plaintiffs’ first amended complaint. [Dkt.
#6, Pls.’ Am. Compl.]. Sometime between April 30, 2011 and May 1, 2011, Marcus
Brown entered Saint Mary’s Hospital in Waterbury CT, seeking behavioral health
care services. Id. at ¶¶10-12. Although not stated in their amended complaint,
the Plaintiffs assert in their memorandum in opposition to the motion to dismiss
that shortly after Brown entered the hospital, an employee or employees of St.
Mary’s Hospital called the Waterbury Police Department and physically restrained
Brown. [Dkt. #17, Pls.’ Opp’n To Def.’s Mot. To Dismiss, 2]. However, it is well
established that “[p]laintiffs cannot amend their complaint by asserting new facts
or theories for the first time in opposition to Defendants' motion to dismiss.” K.D.
ex rel. Duncan v. White Plains School Dist., No.11 CIV.6756(ER), 2013 WL 440556,
at *14 n. 8 (S.D.N.Y. Feb.5, 2013) (citing Tomlins v. Vill. of Wappinger Falls Zoning
Bd. of Appeals, 812 F.Supp.2d 357, 363 n. 9 (S.D.N.Y.2011); Scott v. City of New
York Dep't of Corr., 641 F.Supp.2d 211, 229 (S.D.N.Y.2009), aff'd, 445 F. App'x 389
(2d Cir.2011)).
2
The Defendant Waterbury Police Department dispatched officers to the
Defendant Hospital, including Defendant Officer Adrian Sanchez. Id. at ¶13.
When the officers arrived, Brown was “physically restrained, handcuffed, and
placed into Officer Sanchez’s vehicle.” Id. at ¶14. The Plaintiffs further assert in
their memorandum that upon the officers’ arrival, Brown was physically
restrained by Hospital employees before being transferred into police custody,
who then handcuffed and placed Brown into Officer Sanchez’s police vehicle. Id.
at ¶3. Once placed in Officer Sanchez’s police vehicle, Brown was purportedly
struck with an electrical shock weapon. [Dkt. #6, Pls.’ Am. Compl. at ¶15]. As a
result of the electric shock, Brown was allegedly injured, suffered conscious pain
and suffering, and subsequently died from his injuries. Id. at ¶16.
In support of these counts, the Plaintiffs allege that both the City and the
Hospital were “were negligent with respect to their improper use of excessive
force; negligent infliction of emotional distress; denial, delay and obstruction of
medical care and treatment; negligent hiring, training, supervision, monitoring
and retention of agents, servants and employees; failed to have and/or properly
use an early warning screening system for psychological profiles and failed to
detect and/or respond in an appropriate manner to signs and symptoms
presented by police officers involved herein; breach of special duty, failed to
properly supervise, safeguard, and monitor Plaintiff.” Id. at ¶30.
The Plaintiffs further allege that “Plaintiff was deprived of Federal, State
and City rights, including but not limited to the right to be free from unreasonable
search, the right to free speech, the right not to be subjected to excessive force,
3
the right to be free of cruel and unusual punishment, the right to equal protection
under the law, the right to the fourteenth (14th ) Amendment and that Plaintiff’s
liberty was restrained and that defendants’ initiated or maintained the
prosecution against Plaintiff without probable cause and the defendants acted
maliciously.” Id. at ¶34. The Plaintiffs declare that both the City and the Hospital
“through their inadequate training or supervision of their agents, servants and
employees, defendants evidenced a pattern of deliberate indifference to the
individual, civil and constitutional rights of other so as to ratify such conduct and
violate the rights of others, and violated Plaintiff’s Civil and Constitutional
rights.” Id. at ¶35. Lastly, the Plaintiffs allege that all the Defendants “employed
excessive force; acted in a discriminatory manner; delayed, denied and
obstructed proper medical care and treatment; acted in a discriminatory manner
on the basis of decedent’s race/ethnicity; decedent was deprived of his civil
rights by respondents, their agents/servants/employees, and others acting under
color of state law; supervisors/superiors condoned or ratified improper conduct
or a pattern of improper conduct or of deliberate indifference to decedent’s rights
and were otherwise negligent.” Id. at ¶35.
Legal Standard
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
‘short and plain statement of the claim showing that pleader is entitled to relief.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (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
4
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (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, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “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.’ 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 court should determine whether the
‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 129 S. Ct. at 1950). “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, 129 S. Ct. at 1949
(internal quotation marks omitted).
The Court’s review on a motion to dismiss pursuant to Rule 12(b)(6) is
generally limited to “the facts as asserted within the four corners of the
5
complaint, the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). In addition, the Court may also
consider “matters of which judicial notice may be taken” and “documents either
in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in
bringing suit.” Brass v. Am. Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.
1993). Here, both parties rely upon the May 6, 2009 letter responding to Plaintiff’s
request for Family Medical Leave, attached to the Motion to Dismiss as Exhibit B.
[Dkt #15, Def.’s Mot. To Dismiss, Exhibit B]. Therefore, where Plaintiff had
knowledge of the letter and both parties rely on the letter, the Court will consider
the letter for the purposes of analyzing the pending motion to dismiss. See
Anderson v. Derby Bd. Of Educ., 718 F. Supp. 2d 258, 273 n.33 (D. Conn. 2010).
Lastly, in deciding a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) the Court “may resolve disputed factual issues by
reference to evidence outside the pleadings, including affidavits.” State
Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007).
Analysis
The Hospital moves to dismiss the Plaintiffs’ amended complaint on the
following grounds. First, the Hospital argues that because it is not a state actor,
it cannot be held liable under 42 U.S.C. §1983. Second, the Hospital argues that
Plaintiffs’ tort claims must be dismissed for failure to state a claim. The Hospital
also moves to dismiss as Isler as a party as he lacks standing to bring an action
on his dead son’s behalf and has no independent claim of his own. Lastly, the
6
Hospital moves to dismiss Plaintiffs’ cause of action for punitive damages as it is
not a separate and independent claim. The City also moves to dismiss Isler and
the punitive damages claim for the same reasons. In addition, the City also
argues that the Waterbury Police Department should be dismissed as a
Defendant in this action as it is not a legal entity with legal capacity to sue or to
be sued. The Plaintiff having not conceded the validity of any of these
challenges, the Court will examine each of these arguments in turn.
i.
Isler as a Plaintiff
Both the Hospital and the City argue that Isler must be dismissed as a
Plaintiff in this action as he has no standing to assert a claim on behalf of his
deceased son and has no independent claim of his own. The amended
complaint solely alleges that Isler is the father of Brown and nothing more. It is
well established that at “common law the death of a sole plaintiff…abated an
action.” Pinney, Payne, Van Lenten, Burrel, Wolfe and DIllman, P.C. v. Tamsett,
74 Conn. App. 617, 621 (2003) (citation omitted). However, Conn. Gen. Stat. §52599(a) provides that a “cause or right of action shall not be lost or destroyed by
the death of any person, but shall survive in favor of or against the executor or
administrator of the deceased person.” Conn. Gen. Stat. §52-599(a). “ General
Statutes § 52-555 creates a cause of action that may be maintained only by an
executor or administrator of an estate.” Isaac v. Mount Sinai Hospital, 3 Conn.
App. 598, 600-01 (1985). Therefore this “statute provides for the bringing of such
an action by either an executor or an administrator; it does not confer on anyone
else, including the parents of a decedent, any right to bring such an action
7
individually.” Id. at 601. As the Plaintiffs allege that Shaneka Rose is the
administratrix of Brown’s estate and not Isler, only Rose has standing to bring
either the state law or Section 1983 claims on behalf of Brown. See Barrett v.
U.S., 689 F.2d 324, 331 (2d Cir. 1982) (“When a party dies before pursuing his
cause of action under s 1983, the claim survives for the benefit of his estate if
applicable state law creates a right of survival.”). Consequently, Isler has no
standing on the basis of his parental relationship with Brown to bring either the
state or federal claims on behalf of his deceased son. In addition, Isler cannot
bring a claim on his individual behalf as Connecticut does not recognize a cause
of action for loss of parental consortium. See Mendillo v. Board of Education of
East Haddam, 246 Conn. 456, 477 (1998) (declining to recognize a loss of parental
consortium cause of action even where limited to the time of the child’s minority).
As Isler lacks standing to assert a claim on behalf of his deceased son and
cannot bring a derivative claim himself, the Court dismisses Isler as a Plaintiff in
this action.
ii.
Section 1983 Claims against the Hospital
The Hospital argues that the Plaintiffs fail to state a §1983 claim against the
Hospital, a private entity, as they have failed to plausibly allege that the Hospital
is a state actor as is necessary to establish §1983 liability. Section 1983 provides
that “[e]very person who, under color of any [state] statute, ordinance, regulation,
custom, or usage ... subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be
8
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.” 42 U.S.C. § 1983. “Because the United States
Constitution regulates only the Government, not private parties, a litigant
claiming that his constitutional rights have been violated must first establish that
the challenged conduct constitutes state action.” Flagg v. Yonkers Sav. & Loan
Ass'n, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotation marks omitted). “A
plaintiff pressing a claim of violation of his constitutional rights under § 1983 is
thus required to show state action.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308,
312 (2d Cir. 2003).
“[S]tate action requires both an alleged constitutional deprivation caused
by the exercise of some right or privilege created by the State or by a rule of
conduct imposed by the State or by a person for whom the State is responsible,
and that the party charged with the deprivation must be a person who may fairly
be said to be a state actor.” Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012)
(internal quotation marks and citations omitted). “‘Conduct that is formally
‘private’ may become so entwined with governmental policies or so impregnated
with a governmental character that it can be regarded as governmental action.’”
Id. at 207 (quoting Rendell–Baker v. Kohn, 457 U.S. 830, 847, 102 S.Ct. 2764, 73
L.Ed.2d 418 (1982)). “But a private entity does not become a state actor for
purposes of § 1983 merely on the basis of the private entity's creation, funding,
licensing, or regulation by the government. Rather, there must be such a close
nexus between the [s]tate and the challenged action that the state is
9
responsible for the specific conduct of which the plaintiff complains.” Id. at 207
(internal quotation marks and citations omitted) (emphasis in the original).
The Second Circuit has emphasized that cases on the subject of state
action have not been a model of consistency and therefore there is no single test
to identify state actions and state actors but rather “‘there are a host of factors
that can bear on the fairness of an attribution of a challenged action to the state.’”
Id. (quoting Cooper v. U.S. Postal Serv., 577 F.3d 479, 491 (2d Cir. 2009)). The
Second Circuit has identified three main tests:
For the purposes of section 1983, the actions of a nominally private entity
are attributable to the state ... (1) [when] the entity acts pursuant to the
coercive power of the state or is controlled by the state (“the compulsion
test”); (2) when the state provides significant encouragement to the entity,
the entity is a willful participant in joint activity with the state, or the entity's
functions are entwined with state policies (“the joint action test” or “close
nexus test”); or (3) when the entity has been delegated a public function by
the state (“the public function test”).
Id. (citations omitted). “The fundamental question under each test is whether the
private entity's challenged actions are ‘fairly attributable’ to the state.”
Id. (quoting Rendell-Baker, 457 U.S. 830, 838 (1982)).
Here, Plaintiffs argue that they have alleged facts sufficient to satisfy the
joint action or close nexus test because the Hospital called the Police and acted
in concert with the Police to have Brown arrested and taken into custody. Even if
the Court were to consider those facts the Plaintiffs inappropriately asserted for
the first time in their opposition to the motion to dismiss that Hospital staff called
the Police and physically restrained Brown until the Police arrived those facts
would not demonstrate that the Hospital’s action were fairly attributable to the
10
state. It has long been established that the mere act of calling the police does not
constitute state action. See Bloom v. Town of New Windsor Police Dept., 234
F.3d 1261 (2d Cir. 2000) (holding on summary order that “[t]he district court
properly held that [a private individual’s] call to the police to report potential
animal abuse did not constitute state action that would render a private citizen
liable under § 1983.”); Stewart v. Victoria’s Secret Stores, LLC, 851 F.Supp.2d 442,
446 (E.D.N.Y. Mar. 19, 2012) (“A private party supplying information or seeking
police assistance “does not become a state actor ... unless the police officers
were improperly influenced or controlled by the private party.”) (internal
quotation marks and citation omitted) ; Rizzo v. Host Servs. Of New York, Inc.,
545 F.Supp. 1193, 1195 (E.D.N.Y. 1982) (The “mere response of a police officer to
a citizen's call for assistance is not enough to transmogrify the citizen's action
into that of the state. To satisfy the state action requirement plaintiffs would, as a
minimum, have to prove that the police were knowingly involved in a plan to
deprive plaintiffs of their rights.”); see also Benavidez v. Gunnell, 722 F.2d 615,
618 (10th Cir.1983) (“The mere furnishing of information to police officers does
not constitute joint action under color of state law which renders a private citizen
liable under § [ ] 1983....”). Here, the Plaintiffs fail to plead facts tending to
support their claim that the Hospital was a state actor. For example, they fail to
plead that the Police were improperly influenced or controlled by the Hospital or
that the Police Officers were knowingly involved in a plan to deprive Brown of his
rights in order to establish state action based on the Hospital’s conduct of calling
the Police for assistance.
11
Further, courts have held that the act of detaining an individual suspected
of wrongdoing until the police arrive does not constitute state action under
§1983. For example, “[g]enerally, the acts of private security guards hired by a
store, do not constitute state action under §1983” and therefore “[c]ourts within
the Second Circuit have repeatedly held that store security personnel are not
state actors when they detain or call for the arrest of suspected shoplifters.”
Jones v. J.C. Penney’s Dept. Stores, Inc., No.03-CV-920A, 2007 WL1577758, at *7
(W.D.N.Y. 2007) (internal quotation marks and citation omitted) (collecting cases).
There are two recognized exceptions to this general rule, first when private
security guards are given the authority of state law or willfully participated in the
joint activity of the State or its agents. Id. Courts have explained that willful
participation in joint activity requires “more than a general understanding that the
security guards can call the police for assistance. The police must allow the
security guard’s judgment about whether probable cause exists to be substituted
for their own” by failing to make any independent investigation. Harris v.
Security Co. of 1370 Sixth Ave., No.94Civ.2599(JGK),1996 WL 556927, at *3
(S.D.N.Y. Oct. 1, 1996) (citations omitted). Although the Plaintiffs have not
specifically alleged that a security guard from the Hospital was involved, this
Court finds this line of caselaw to be guiding in considering whether the acts of
the Hospital can be considered state action in the present matter. Here, the
Plaintiffs have not alleged that the Hospital had any special authority to arrest
Brown nor have they alleged there was a plan or concert of action beyond merely
calling and detaining Brown until the Police arrived. There are no allegations that
12
the Police Officers failed to investigate and failed to make their own judgment on
whether probable cause to arrest Brown existed. Even if the Court considered
the additional facts the Plaintiffs have inappropriately asserted in their response
that the Hospital physically restrained Brown until the Police arrived those
allegations would amount to nothing more than “general allegations of
cooperation between private individuals and specific state agents” which “do not
make out a claim of action taken under color of state law.” Bishop v. Best Buy,
Co., Inc., No.08Civ.8427(LBS), 2010 WL 4159566, at *8 (S.D.N.Y. Oct.13, 2010)
(internal quotation marks and citations omitted). As the Plaintiffs’ allegations do
not demonstrate that the Hospital and the City were engaged in joint activity so
that the actions of the Hospital are fairly attributable to the state, the Court
dismisses the Plaintiffs’ §1983 claims against the Hospital.
Even if the Plaintiffs had plausibly stated that the Hospital was acting
under color of state law, the Hospital cannot be held vicariously liable under
§1983 for its constitutional torts of its employees based on a theory of
respondeat superior. Rojas v. Alexander's Department Store, Inc., 924 F.2d 406,
408 (2d Cir.1990) (citations omitted) (“Private employers are not liable under §
1983 for the constitutional torts of their employees, unless the plaintiff proves
that ‘action pursuant to official ... policy of some nature caused a constitutional
tort.’”) (quoting Monell v. Dep’t of Social Serv. of the City of New York, 436 U.S.
658, 591 (1978)); Mejia v. City of New York, 228 F.Supp.2d 234, 243 (E.D.N.Y.2002)
(“[N]either a municipality nor a private corporation can be held vicariously liable
under § 1983 for the actions of its employees.”). “Although Monell dealt with
13
municipal employers, its rationale has been extended to private businesses.”
Rojas, 924 F.2d at 409. Here, the Plaintiffs have failed to allege facts as to the
Hospital which plausibly give rise to an entitlement to relief under Monell. The
Plaintiffs have conclusorily pled that the Hospital failed to supervise and train its
employees and was deliberately indifferent to the Brown’s rights. [Dkt. #6, Pls.’
Am. Compl. at ¶¶34-36]. All of the Plaintiffs’ allegations as to the Hospital’s
failures to train and supervise amount to naked assertions devoid of further
factual enhancement which do not pass muster under Iqbal. The Plaintiffs have
therefore failed to set forth any factual content to support their bald assertion that
the Hospital’s failure to supervise and failure to train caused the alleged
constitutional violations in order to establish that the Hospital should be liable
under §1983. Therefore even if the Hospital was acting under color of law, the
Hospital could not be liable under §1983 for the constitutional torts of its
employees in the absence of any plausible allegations as to the Hospital’s
custom or policy which caused the alleged constitutional deprivations.
In sum,
the Court has dismissed Plaintiffs’ §1983 claims against the Hospital.
iii.
False Arrest, False Imprisonment, Assault, and Battery Claims
against the Hospital
Defendants argue that the Plaintiffs fail to state a claim for their tort claims
of false arrest, wrongful imprisonment, assault or battery because there are no
allegations that any employee from the Hospital restrained Brown in any manner.
The Hospital is correct that the amended complaint fails to make any allegations
that the Hospital actually physically restrained Brown in any way. The amended
complaint simply alleges that Brown presented himself to the Hospital seeking
14
medical assistance and that at some subsequent point Police Officers arrived and
physically restrained Brown and placed him into a police vehicle. [Dkt. #6, Pls.’
Am. Compl., ¶¶10-14]. On the basis of these allegations, the Plaintiffs have failed
to state a claim that the Hospital is liable for false arrest, false imprisonment,
assault or battery. In response to the motion to dismiss, the Plaintiffs assert for
the first time that Hospital employees physically restrained Brown before he was
transferred to police custody. Although, “[p]laintiffs cannot amend their
complaint by asserting new facts or theories for the first time in opposition to
Defendants' motion to dismiss,” the Court will permit the Plaintiffs leave to
amend their complaint to allege that specific Hospital employees physically
restrained Brown without cause to do so and detained him until the Police arrived
in support of their false arrest, false imprisonment, battery and assault tort claims
against the Hospital and that the Hospital is vicariously liable for the torts of its
employees. K.D. ex rel. Duncan, 2013 WL 440556, at *14 n. 8. If the Hospital’s
employees did physically restrain Brown and held him until the Police arrived,
then the Plaintiffs may be able to cure the pleading deficiencies in their false
arrest, false imprisonment, assault and battery claims against the Hospital by
providing specific factual details regarding the physical restraints the employees
from the Hospital employed. As the Plaintiffs may been aware of the assertion of
these fatal pleading defects since May of 2012, leave is granted to file an
amended complaint to allege facts sufficient to meet the pleading standard for
false arrest, false imprisonment, battery and assault within twenty-one (21) days
of the date of this decision.
15
II. Negligence and Wrongful Death Claims against the Hospital
The Hospital argues that Plaintiffs’ negligence and wrongful death claims
must be dismissed for failure to abide by Gen. Stat. §52-190a(a) which provides:
No civil action or apportionment complaint shall be filed to recover
damages resulting from personal injury or wrongful death occurring on or
after October 1, 1987, whether in tort or in contract, in which it is alleged
that such injury or death resulted from the negligence of a health care
provider, unless the attorney or party filing the action or apportionment
complaint has made a reasonable inquiry as permitted by the
circumstances to determine that there are grounds for a good faith belief
that there has been negligence in the care or treatment of the claimant. The
complaint, initial pleading or apportionment complaint shall contain a
certificate of the attorney or party filing the action or apportionment
complaint that such reasonable inquiry gave rise to a good faith belief that
grounds exist for an action against each named defendant or for an
apportionment complaint against each named apportionment defendant. To
show the existence of such good faith, the claimant or the claimant's
attorney, and any apportionment complainant or the apportionment
complainant's attorney, shall obtain a written and signed opinion of a
similar health care provider, as defined in section 52-184c, which similar
health care provider shall be selected pursuant to the provisions of said
section, that there appears to be evidence of medical negligence and
includes a detailed basis for the formation of such opinion.
Conn. Gen. Stat. §52-190a(a). “The failure to obtain and file the written opinion
required by [Section 52-190a(a)], of this section shall be grounds for the
dismissal of the action.” Conn. Gen. Stat. § 52- 190a(c). As the Hospital argues,
the Plaintiffs’ claims against the Hospital must be dismissed because they have
failed to obtain and provide a certificate of reasonable inquiry and good faith or
opinion from a health care provider as required by Conn. Gen. Stat. §52-190a(a).
Bennett v. New Milford Hop., Inc., 300 Conn. 1, 29 (2011) (holding that “dismissal
is the mandatory remedy when a plaintiff fails to file an opinion letter that
complies with §52-190(a).”).
16
In response, the Plaintiffs argue that they are not alleging negligence by
the Hospital involved in medical treatment but “rather negligence sounded in the
traditional and ordinary forms of wrongdoing” which would not be subject to
Conn. Gen. Stat. §52-190a(a). [Dkt. #17, Pl. Mem., p.6]. However, the Plaintiffs’
allegations in their amended complaint belie their contention that they are
alleging negligence and wrongful death claims outside the scope of Conn. Gen.
Stat. §52-190a(a). The Plaintiffs allege that both the Hospital and the City were
“were negligent with respect to their improper use of excessive force; negligent
infliction of emotional distress; denial, delay and obstruction of medical care and
treatment; negligent hiring, training, supervision, monitoring and retention of
agents, servants and employees; failed to have and/or properly use an early
warning screening system for psychological profiles and failed to detect and/or
respond in an appropriate manner to signs and symptoms presented by police
officers involved herein; breach of special duty, failed to properly supervise,
safeguard, and monitor Plaintiff.” [Dkt.#6, Pl. Am. Compl.,¶30]. Despite Plaintiffs’
contention to the contrary, these allegations demonstrate that their negligence
and wrongful death claims against the Hospital sounds squarely in medical
negligence and fall within the scope of Conn. Gen. Stat. §52-190a(a)’s reach as
they have brought a civil action to recover damages resulting from personal
injury or wrongful death in tort in which they have alleged that the injury and
death resulted from the negligence of a health care provider. Accordingly, the
Court dismisses the Plaintiffs’ negligence and wrongful death claims against the
Hospital for failure to comply with the requirements of Conn. Gen. Stat. §52-
17
190a(a). However, the Plaintiff is granted leave to amend the complaint to allege
a negligence claim against the Hospital sounding in general negligence and not
medical malpractice within twenty-one (21) days of the date of this decision.
Even if the Plaintiffs’ wrongful death claim is not premised on their
negligence claim, the Plaintiffs’ allegations fail to state a claim for wrongful death
against the Hospital as the Plaintiffs have failed to plausibly allege that the
Hospital caused Brown’s death. The Connecticut Supreme Court has explained:
The elements of a cause of action ... for a wrongful death are clear from the
explicit language of the statute, which as a statute in derogation of the
common law is limited to matters clearly within its scope.... The plaintiff
must prove not only a violation of a standard of care as a wrongful act, but
also a causal relationship between the injury and the resulting death. A
causal relation between the defendant's wrongful conduct and the
plaintiff's injuries is a fundamental element without which a plaintiff has no
case.... If the chain of causation of the damage, when traced from the
beginning to the end, includes an act or omission which, even if wrongful
or negligent, is or becomes of no consequence in the results or so trivial as
to be a mere incident of the operating cause, it is not such a factor as will
impose liability for those results.
Grody v. Tulin, 170 Conn. 443, 448-49 (1976) (internal quotation marks and
citations omitted). The Plaintiffs have alleged that the Defendant Police Officers
took custody of Brown and placed him into a police vehicle. They then allege that
Brown was shocked by an electrical weapon by the Defendant Police Officers
while in the police car and that Brown died as a result of the electric shock
administered by the Police Officers. [Dkt. #6, Pls.’ Am. Compl., ¶¶15-16]. As the
Hospital argues, the Plaintiffs have failed to allege any causal relationship
between the Hospital’s conduct and Brown’s death to maintain a wrongful death
claim against the Hospital.
To the extent that Plaintiff’s claim is premised on the
contention that the Police would not have taken custody and shocked Brown if
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the Hospital had not called the Police, such an act would be so tenuous and
trivial as to be a mere incident of the operating cause which was the Police
Officer’s conduct in shocking Brown with an electrical weapon. Consequently,
the Hospital’s act in calling the Police and restraining Brown until the Police
arrived is of no consequence and cannot impose liability for wrongful death
under Connecticut law. In sum, the Court dismisses the Plaintiffs’ negligence
claim with leave to re-plead and wrongful death claim without leave to re-plead
against the Hospital.
iv.
Claims against the Waterbury Police Department
The City moves to dismiss the Waterbury Police Department as a
Defendant in this action as police departments are not legal entities with the legal
capacity to sue or be sued. “It is elemental that in order to confer jurisdiction on
the court [a party] must have an actual legal existence, that is he or it must be a
person in law or a legal entity with legal capacity to sue [or be sued].” Isaac, 3
Conn. App. 598 at 600. Courts in Connecticut have held that the “Connecticut
General Statutes contain no provision establishing municipal departments,
including police departments, as legal entities separate and apart from the
municipality they serve, or providing that they have the capacity to sue or be
sued ... Rather, pursuant to Connecticut enabling legislation, it is the municipality
itself which possesses the capacity to sue and be sued.” Arteaga v. Town of
Waterford, No.HHDX07CV5013377S, 2010 WL 1611377, at *9 (Conn. Super. Ct.
Mar. 16, 2010) (internal quotation marks and citations omitted); Eloi v. Gagnon,
No.CV074030795, 2007 WL 4686489, at *2 (Conn. Super. Ct. Dec. 3, 2007)
(“Accordingly, those Connecticut courts addressing this issue have held that
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municipal police departments do not constitute an independent legal entity
amenable to suit.”) (collecting cases). Further, it is well established that a
municipal police department is neither a municipality nor a ‘person’ within the
meaning of 42 U.S.C. § 1983. See Nicholson v. Lenczewski, 356 F. Supp. 2d 157,
164 (D. Conn. 2005) (collecting cases). Accordingly, the Court dismisses the
Waterbury Police Department as a Defendant in this action.
v.
Punitive Damages
Both the City and the Hospital have moved to dismiss the Plaintiffs’ Count
7 claim for punitive damages on the basis that there is no authority that punitive
damages are a separate and independent cause of action. A claim for punitive
damages “is not a separate count inasmuch as it is a remedy.” Supreme Indus.,
Inc. v. Town of Bloomfield, No.X03CV0340022269, 2007 WL 901805, at *26 (Conn.
Super. Ct. Mar. 8, 2007). “In Connecticut, punitive damages may be based either
on statute or, in the absence of a statutory provision, common law. ‘Punitive
damages are a remedy awarded only when the evidence shows reckless,
intentional or wanton violation of the rights of others.’” Id. (quoting Suffield Dev.
Assocs. Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, 577,
cert. denied, 280 Conn. 942, 943 (2006)). The Court therefore dismisses the
Plaintiffs’ count 7 claim for “punitive damages” as a separate cause of action but
notes that the Plaintiffs have sought the remedy of punitive damages in
connection with their other claims.
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Conclusion
Based upon the above reasoning, the Hospital’s [Dkt.#14] motion to
dismiss is GRANTED IN PART AND DENIED IN PART and the City’ [Dkt. #16]
motion to dismiss is GRANTED. The Plaintiffs’ Section 1983 and wrongful death
claims against the Hospital are dismissed. The Plaintiff is given leave to re-plead
within twenty-one (21) days of this Order their false arrest, false imprisonment,
assault, battery and negligence claims against the Hospital. Isler is dismissed as
a Plaintiff in this action and the Waterbury Police Department is dismissed as a
Defendant in this case. Lastly, the Court dismisses the Plaintiffs’ claim for
punitive damages as a separate cause of action.
IT IS SO ORDERED.
________/s/__ ________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 21, 2013
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