Goode v. Newton et al

Filing 66

ORDER: Defendants' Motion 48 to Dismiss is GRANTED in part and DENIED in part; Defendant Lynch's Motion 26 to Dismiss is GRANTED in part and DENIED in part. Signed by Judge Janet Bond Arterton on 3/14/2013. (Bonneau, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Lance Goode,
Plaintiff,

Civil No. 3:12cv754 (JBA)

v.
March 14, 2013
Roger G. Newton, Jr., et al.,
Defendants.

RULING ON MOTIONS TO DISMISS
Plaintiff Lance Goode brings a nine-count complaint against the City of New
London (the “City”) and a number of New London police officers for violating his federal
and state constitutional rights. Plaintiff alleges that he was falsely arrested on two
occasions, and that, on one of those occasions, Defendants used excessive force when they
arrested him. Pending before the Court are two motions to dismiss. Officer Todd Lynch
moves [Doc. # 26] to dismiss the amended complaint as against him, arguing that, for the
purposes of 42 U.S.C. § 1983, he was not personally involved in any of the alleged
constitutional violations.

The remaining Defendants (“City Defendants”), with the

exception of Officer Newton, separately move [Doc. # 48] to dismiss Plaintiff’s Monell
claims and to narrow Plaintiff’s claims under the state constitution. For the reasons stated
below, both motions will be granted in part and denied in part.
I.

Factual Background
The following facts are culled from Plaintiff’s Amended Complaint [Doc. # 45].

Plaintiff alleges two separate occasions when Defendants violated his civil rights, one on
April 29, 2010 and the other on October 20, 2010.

A.

April 29, 2010 Incident

On or about April 29, 2010, Officer Todd Lynch, a member of the New London
police department, misrepresented to the New London Housing Authority (“NLHA”)
that Plaintiff had been belligerent to tenants at 202 Coleman Street (the “premises”), a
public housing facility where Plaintiff’s mother lived at the time.

Officer Lynch’s

misrepresentations caused the NLHA to issue a “no trespassing” letter against Plaintiff, of
which he had no notice. (Am. Compl. [Doc. # 45] ¶ V.5-6.)1
Officer Lynch posted the NLHA’s “no trespassing” letter at the premises. That
same day—late in the evening—someone purportedly tipped off the police that Plaintiff
was present at the premises at 4:00 a.m., in violation of the just-posted letter. Police
officers were dispatched to investigate the alleged trespass—a nonviolent criminal
misdemeanor—including Officers Wayne Neff, Lawrence Keating, David McElroy, and
Kyle Gorra. (Id. ¶¶ V.7-8.) A policeman saw Plaintiff in the vicinity of the building and
pursued him on foot. (Id. ¶ V.9.) Plaintiff entered a friend’s house, where he was
welcome, and sat down in his friend’s chair. (Id. ¶ V.10.) Officers Neff, McElroy, and
Gorra entered the home without warrant or invitation, and, after Plaintiff refused to
stand up, Officer Neff summoned Officer Keating to subdue Plaintiff with a taser, even
though Plaintiff was unarmed and peaceful. (Id. ¶¶ V.11-13.) After Plaintiff refused to
stand up for a second time, Officer Keating tasered him twice, and all of the Officers who
were present inside the home assaulted him, smashing his head on a wall, handcuffing

1

The numbering of the paragraphs in the Amended Complaint restarts with each
count. The Court uses roman numerals to designate the count where the cited paragraph
can be found. For example, the citation preceding this footnote references Paragraphs 5
and 6 of Count V.
2

him, and slamming him on the ground with enough force to break his elbow, as
confirmed by subsequent x-rays. (Id. ¶¶ V.13-15.)
In connection with these events, Plaintiff was arrested and charged with criminal
trespass, interfering with an officer, assault on a police officer, and possession of
narcotics. (Id. ¶ V.16) The NLHA later rescinded its “no trespassing” letter because
Plaintiff had not, in fact, been belligerent toward any tenants of 202 Coleman Street. All
of the charges against Plaintiff were nolled, with the prosecutor stating that if the NLHA
“had all of the information, they would not have issued the original [“no trespassing”]
letter that was issued, and . . . they have . . . revoked that.” (Id. ¶ V.21.)
B.

October 20, 2010 Incident

Officer Roger Newton, who is white, served as a New London police during all
times relevant to this action. (Id. ¶¶ I.2-3.) On October 20, 2010 while on uniformed
patrol in his police car, Officer Newton began to follow, without cause, Plaintiff, who is
black, as he drove through New London in his Honda Accord. (Id. ¶¶ I.1, I.5.) When
Plaintiff parked in the driveway of a private residence, Officer Newton parked next to
Plaintiff, approached him, and asked for his license and registration. (Id. ¶ I.5.)
Shortly thereafter, Officer Henderson arrived as backup. His car was parked at an
angle such that Plaintiff’s car was within view of the video camera that was mounted on
the dashboard of Officer Henderson’s car. (Id. ¶ I.6) This video camera captured Officer
Newton planting drugs near Plaintiff’s car. Specifically, when Officer Henderson and
Plaintiff went inside the residence so that Plaintiff could get his car insurance
information, Officer Newton dropped a bag of oxycodone, and then kicked the bag near
the right front door of Plaintiff’s car. (Id. ¶¶ I.9-11.) Officer Newton then lied in his police
report and said that when he opened the glove compartment, a bag of drugs fell out. (Id.
3

¶¶ I.11-15.) Based on Officer Newton’s lies, Plaintiff was arrested and charged with three
felonies, which together carried a minimum sentence of five years’ imprisonment. (Id.
¶ I.16-17.)
Plaintiff suffered significant harm as a result of Officer Newton’s planting drugs
outside Plaintiff’s vehicle and lying in his police report. On the day he was arrested,
Plaintiff was handcuffed and held in custody. (Id. ¶ I.20.) When he was arrested six
months afterward on an unrelated charge, the October 20 arrest caused Plaintiff’s bond to
be set so high that he was unable to pay it, causing him to spend fifty-six days in prison.
(Id. ¶ I.21.) All charges against Plaintiff were dropped when Defendant’s counsel obtained
the video from Officer Newton’s dashboard that clearly indicated there was no lawful
reason for the traffic stop.
In early 2012, Officer Newton was suspended from the New London police force
and then retired, in exchange for the City and the Police Department ceasing the internal
investigation into his misbehavior on the job. (Id. ¶¶ I.25-26.)
C.

Other Incidents Involving New London Police

In addition to pleading the above facts, Plaintiff also includes in his Amended
Complaint allegations from other pending lawsuits against New London police officers,
to bolster his Monell claims in Count Four and Count Six by establishing that the New
London police department had a policy or custom in place which violated his
constitutional rights.
Count Four alleges that the City is liable for Officer Newton’s actions on October
20, 2010. Plaintiff identifies two incidents that, in his estimation, demonstrate the
requisite municipal policy: (1) the Reuben Miller incident; and (2) the false arrest of
Francisco Francovilla. (Id. ¶ IV.32(a-b).) Neither incident involves any of the Defendant
4

officers in this case. The Miller incident, which took place on December 14, 2011—over a
year after the Officer Newton incident—involves allegations that officers lacked probable
cause to make an arrest, and that officers used excessive force. The Francovilla incident,
which forms the basis of a suit currently before Judge Underhill, took place on July 9,
2009. (Id. ¶ IV.32(b).) The Francovilla allegations include assertions that City officers
filed false police reports and charges. (See id.)
Count Six asserts that the City is responsible for the constitutional violations
perpetrated by Officers Lynch, Neff, Keating, McElroy, and Gorra on April 29, 2010.
Plaintiff realleges the Miller and Francovilla incidents (see id. ¶¶ VI.26(a, d)) and recounts
two additional instances of alleged misconduct by New London officers: (1) the
Cunningham incident and (2) an incident involving Donald and Andre Gilbert. (See id.
¶¶ VI.26(c, h-i)). As with the allegations regarding Reuben Miller, both of these incidents
occurred over a year after the allegations in Count Six, and none involve Officers Lynch,
Keating, McElroy, Neff or Gorra. On August 24, 2011, a New London officer allegedly
used excessive force by shooting Mr. Cunningham. (See id. ¶ VI.26(c).) On October 25,
2011, Officer Newton allegedly stopped a car containing Donald and Andre Gilbert and
used excessive force when frisking them and then effected a pretextual arrest. (See id.
¶ VI.26(c).)

5

II.

Discussion2
A.

Officer Lynch’s Motion to Dismiss [Doc. # 26]

Officer Lynch is named in three counts, all relating to his alleged participation in
the April 2010 arrest: Count Five, which alleges violations of 42 U.S.C. § 1983; Count
Seven, which asserts common law false arrest and malicious prosecution; and Count
Eight, which alleges violations of the Connecticut constitution. Officer Lynch urges the
Court to dismiss all three counts as against him.
1.

Count Five: § 1983 (False Arrest)

Plaintiff concedes in his opposition brief that Officer Lynch is not liable for the
use of excessive force in April 2010. (See Pl.’s Opp’n [Doc. # 35] at 5 (stating that Lynch’s
“1983 Count Five liability is limited to causing the plaintiff’s false arrest for misdemeanor
trespass”).) The only question for the Court is whether Plaintiff has stated a plausible
false arrest claim under § 1983.
False arrest claims under § 1983 are “substantially the same as claims for false
arrest or malicious prosecution under state law.” Jocks v. Tavernier, 316 F.3d 128, 134 (2d
Cir. 2003) (internal quotation marks omitted). Under Connecticut law, “false
imprisonment, or false arrest, is the unlawful restraint by one person of the physical
liberty of another.” Green v. Donroe, 186 Conn. 265, 267 (1982). To establish a claim for
false arrest under 42 U.S.C. § 1983, a plaintiff is required to show that “the defendant

2

“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.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Although detailed allegations are not required, a claim will be found facially
plausible only if “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Conclusory allegations will not suffice. Id. at 678–79; see also Fed. R. Civ. P.
12(b)(6).
6

intentionally confined him without his consent and without justification.” Escalera v.
Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (quotation marks omitted). A false arrest claim
will fail if the defendant-officer had probable cause to arrest the plaintiff. See, e.g., Weyant
v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (noting that probable cause is “a complete
defense to an action for false arrest”).
Officer Lynch first argues that Plaintiff’s § 1983 false arrest claim fails because
Officer Lynch did not “effect the deprivation of plaintiff’s physical liberty” (Def.’s Mem.
Supp. [Doc. # 26-1] at 6.) Noting that he was not present when Plaintiff was arrested on
April 29, 2010, Officer Lynch argues that his only involvement was obtaining the “no
trespassing” letter, and that obtaining the letter was not, by itself, a deprivation of liberty.
On this point, Officer Lynch cites Burg v. Gosselin, 591 F.3d 95, 98 (2d Cir. 2010), which
held that the “issuance of a pre-arraignment, non-felony summons requiring a later court
appearance, without further restrictions, does not constitute a Fourth Amendment
seizure.” See also Hary v. Dolan, 3:08-cv-1611(JCH), 2010 WL 419404, at *3-4 (D. Conn.
Jan. 29, 2010) (holding that the issuance of a motor vehicle infraction, without more, does
not constitute an arrest); Tombardi v. Quinones, 3:98CV01921 AVC, 2000 WL 852431, at
*5-6 (D. Conn. Mar. 31, 2000) (concluding that issuance of a citation was not an arrest).
While Officer Lynch is correct that merely obtaining the “no trespassing” letter was not
itself a Fourth Amendment seizure, this common-sense proposition is insufficient to
dismiss Count Five, because Plaintiff has alleged that Officer Lynch’s actions caused
Plaintiff to be arrested. (See An. Compl. ¶ V.19.) Unlike Burg, Hary, and Tombardi—
none of which involved actual arrests—Plaintiff alleges that he was handcuffed, told that
he was under arrest, and charged with a criminal trespass misdemeanor. (See id. ¶¶ V.13,
16, 19, 20.)
7

The key question, then, is whether obtaining the “no trespassing” letter and
posting it on the premises, together, constitute enough personal involvement for Officer
Lynch to be liable under § 1983 for Plaintiff’s April 2010 arrest. See McKinnon v.
Patterson, 568 F.2d 930, 934 (2d Cir. 1977) (“[P]ersonal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of damages.”). Observing
that Plaintiff does not claim that Officer Lynch was a supervisor, Officer Lynch argues,
without offering accompanying legal support, that he was not personally involved in the
ultimate arrest and that, as such, he cannot be liable under § 1983. (Def.’s Mem. Supp. at
10.)

This argument is unavailing as Officer Lynch need not have actually applied

Plaintiff’s handcuffs—nor even have been present at the time of arrest—to be personally
involved in his false arrest for criminal trespass. As the Supreme Court observed,
section 1983 “should be read against the background of tort liability that makes a
man responsible for the natural consequences of his actions.” Since the common
law recognized the causal link between the submission of a complaint and an
ensuing arrest, we read § 1983 as recognizing the same causal link.
Malley v. Briggs, 475 U.S. 335, 345 n.7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 187
(1961)). Thus, as long as the causal link is strong enough, “[a]s a general rule, a
government official’s liability for causing an arrest is the same as for carrying it out.” Berg
v. Cnty. of Allegheny, 219 F.3d 261, 272 (3d Cir. 2000) (citing Kilbourn v. Thompson, 103
U.S. 168, 200 (1880)); accord Gordon v. Degelmann, 29 F.3d 295, 298 (7th Cir. 1994). For
example, in Thompson v. Wagner, 631 F. Supp. 2d 664 (W.D. Pa. 2008), the district court
found that two detectives who submitted an affidavit in support of an arrest warrant, but
who were not present at the scene of the arrest, could nevertheless be held liable for false
arrest if a jury found that the detectives had purposefully lied in their affidavit. Id. at 67273, 681, 683.
8

Here, the Amended Complaint contains sufficient facts to establish a plausible
claim that Officer Lynch caused Plaintiff to be falsely arrested for criminal trespassing.
Officer Lynch made affirmative misrepresentations to the NLHA in order to obtain a “no
trespassing” letter, which was later rescinded by the NLHA as groundless. Moreover,
Officer Lynch posted the “no trespassing” letter on the premises shortly before Plaintiff
was arrested, without giving Plaintiff independent notice. These allegations alone create a
plausible inference that Officer Lynch made misrepresentations to create a pretext for
arresting Plaintiff. In short, it is plausible that Officer Lynch caused—and was thus
personally involved in—Plaintiff’s false arrest for criminal trespassing. See Wagner, 631
F. Supp. 2d at 672-73, 683.
2.

Count Seven: Common Law False Arrest & Malicious Prosecution

Count Seven alleges both common law false arrest and malicious prosecution
claims. Officer Lynch argues that both claims fail as a matter of law. The Court disagrees.
To succeed on his malicious prosecution claim, Plaintiff must establish “(1) the
defendant initiated or procured the institution of criminal proceedings against him; (2)
the criminal proceedings have terminated in the plaintiff’s favor; (3) the defendant acted
without probable cause; and (4) the defendant acted with malice, primarily for a purpose
other than that of bringing an offender to justice.” Karwowsky v. Fardy, 118 Conn. App.
480, 486 (2009). Officer Lynch argues that the common law malicious prosecution claim
fails on prong (1)—that is, that Officer Lynch did not initiate or procure a criminal
proceeding against him. (See Def.’s Mem. Supp. at 12.) Officer Lynch offers no legal
support for why Officer Lynch’s obtaining the “no trespassing” letter did not itself initiate
or procure the initiation of the Plaintiff’s prosecution. Even if the letter did not satisfy the
first element of Plaintiff’s malicious prosecution claim, the Court finds that is plausible
9

that Officer Lynch “initiated or procured” the institution of the criminal trespass
proceedings, based on Plaintiff’s allegations that Officer Lynch made misrepresentations
to the NLHA to obtain the “no trespassing” letter (see Am. Compl. ¶¶ V.5-6) and that
Plaintiff was charged criminal trespass (see id. ¶ V.16). The Court can reasonably infer
from these two allegations that it is plausible that Officer Lynch was not truthful to
whichever state official charged Plaintiff with criminal trespass. See Bhatia v. Debek, 287
Conn. 397, 408 (2008) (noting that the first malicious-prosecution element is satisfied
when a defendant knowingly provides false information to a public officer).
The only reasoning that Officer Lynch provides with respect to the common law
false arrest claim is that, because the § 1983 false arrest claim fails, so too does the
common law variant. (See Def.’s Mem. at 10-11 (“Based on all the foregoing [analysis
regarding § 1983], Officer Lynch . . . requests that the Court dismiss the plaintiff’s false
arrest claims pursuant to 42 U.S.C. § 1983, the Connecticut common law, and Article
First, Sections 7 and 9 of Constitution of the State of Connecticut as directed at him.”).)
Inasmuch as Plaintiff has stated a plausible § 1983 false arrest claim, and in light of the
fact that Officer Lynch offers no independent reasons why the common law false arrest
claim should be dismissed, Officer Lynch’s motion to dismiss is denied as to Count Seven.
3.

Count Eight: Connecticut Constitution

In Count Eight, Plaintiff brings claims under Article First, Sections 4, 7, 9, and 20.
However, at oral argument and in his opposition brief to the City Defendants’ motion to
dismiss (see Pl.’s Opp’n [Doc. # 51] at 21), Plaintiff concedes that there is no private right
of action for money damages under Sections 4 and 20 of Article First of the Connecticut
Constitution. Accordingly, the Court dismisses the portion of Count Eight alleging claims
under Article First, Sections 4 and 20.
10

Officer Lynch argues that the remaining state constitutional claims fail because
the purported defects in Plaintiff’s § 1983 false arrest claims also compel the Court to
dismiss the claims under the state constitution. (See Def.’s Mem. Supp. at 12-13 (“The
plaintiff’s false arrest claims under Sections 7 and 9 must fail for the reasons stated supra,
at 5-10.).) This argument is insufficient, in light of the fact that Plaintiff has pleaded a
valid § 1983 false arrest claim, and inasmuch as Officer Lynch has not established that
claims brought under the Connecticut Constitution present a more stringent pleading
standard. The Court therefore limits Count Eight to the claim that Officer Lynch violated
Article First, Sections 7 and 9 of the Connecticut Constitution.
B.

City Defendants’ Motion to Dismiss [Doc. # 48]

The City Defendants move to dismiss Counts Four, Six, Eight and Nine of
Plaintiff’s Amended Complaint for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6).
1.

Counts Four and Six: Monell Claims

Plaintiff brings Monell claims in Counts Four and Six, see Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978), premised on the City’s alleged failure to supervise and failure
to train its police officers. City Defendants argue that Plaintiff’s Monell claims fail because
Plaintiff has not pled adequate facts to establish that the City had a municipal policy that
caused the deprivations of rights alleged in the Amended Complaint.
Section 1983 does not provide for respondeat superior liability. See id. at 691.
Beyond simply alleging that the City employed tortfeasors on its police force, Plaintiff
must allege that his constitutional injuries were caused by actions taken “pursuant to
official municipal policy.” In Monell, municipal liability was premised on the City’s
affirmative conduct, but municipal nonfeasance can qualify as a policy or practice that
11

renders a municipality liable: “Monell’s policy or custom requirement is satisfied where a
local government is faced with a pattern of misconduct and does nothing, compelling the
conclusion that the local government has acquiesced in or tacitly authorized its
subordinates’ unlawful actions.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007)
(citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). Plaintiff argues that the
City is liable for its nonfeasance under two distinct, albeit related, theories: failure to
train and failure to supervise.
Under either a failure-to-train or failure-to-supervise theory, a municipality is
liable only where the inadequate training or supervision amounts to “deliberate
indifference to the rights of person with whom the police come into contact.” City of
Canton v. Harris, 489 U.S. 378, 388 (1989); see Reynolds v. Giuliani, 506 F.3d 183, 192 (2d
Cir. 2007) (“Although City of Canton addressed a claim of a failure to train, the stringent
causation and culpability requirements set out in that case have been applied to a broad
range of supervisory liability claims [including failure to supervise].”). From this
deliberate-indifference requirement, the Second Circuit has established three
requirements: (1) “the plaintiff must show that a policymaker knows to a moral certainty
that her employees will confront a given situation,” (2) “the plaintiff must show 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) “the plaintiff must show that the wrong choice by the city 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); see also Reynolds, 506 F.3d at 193. Finally,
Plaintiff ultimately must prove not only that the deficiencies in the City’s training or
supervision constituted “deliberate indifference,” but also that a causal connection exists
12

between the inadequacies in the training or supervision and Plaintiff’s constitutional
violations. See City of Canton, 489 U.S. at 391.
While the parties largely agree on the ultimate requirements under Monell, they
disagree about the nature of the pleading standard for Monell claims on a Rule 12(b)(6)
motion. Plaintiff argues that the proper standard for pleading a Monell claim is
articulated in Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163 (1993), which, according to Plaintiff, makes clear that a Monell claim can
survive on conclusory allegations, so long as the pleading gives fair notice to Defendants.
(See Pl.’s Opp’n [Doc. # 51] at 4-12.) Plaintiff claims that Leatherman remains good law,
notwithstanding the Supreme Court’s decisions in Twombly, 550 U.S. 544, and Iqbal, 556
U.S. 662. Leatherman does not, however, represent a substantive carve-out for Monell
claims, but rather stands for the proposition that courts may not impose a more rigorous
pleading standard to Monell claims. See Leatherman, 507 U.S. at 168-69. To survive a
motion to dismiss, a Monell claim must include enough factual material to be plausible.
See Plair v. City of New York, 789 F. Supp. 2d 459, 469 (S.D.N.Y. 2011) (“Following Iqbal
and Twombly, Monell claims must satisfy the plausibility standard . . . .”). That said, in
evaluating the plausibility of Monell claims, courts are mindful of the Second Circuit’s
observation that “[i]t is unlikely that a plaintiff would have information about the city's
training programs or about the cause of the misconduct at the pleading stage.” Amnesty
Am. v. Town of W. Hartford, 361 F.3d 113, 130 n.10 (2d Cir. 2004); see Ferrari v. Cnty. of
Suffolk, 790 F. Supp. 2d 34, 45 (E.D.N.Y. 2011); Castilla v. City of New York, 09 Civ. 5446
(SHS), at 7 (S.D.N.Y. Sept. 6, 2012) (unpublished).
The question, then, is whether the nonconclusory allegations in the Amended
Complaint are sufficient to render the Monell claims plausible. The Court recognizes that
13

this presents a close question, but concludes that Plaintiff has pled sufficient facts “to raise
a reasonable expectation that discovery will reveal evidence” of inadequate training or
supervision, see Twombly, 550 U.S. at 556. First, the Court notes that Plaintiff alleges two
separate violations—six months’ apart—committed by New London officers, which share
a common thread: manufactured criminality. According to the Amended Complaint,
Officer Newton planted drugs and falsified his police report, and Officer Lynch lied to
obtain a “no trespassing” letter from the NLHA that then served as the basis for a
pretextual arrest. Second, notwithstanding Defendants’ characterization of the
Francovilla incident as “completely unrelated” to this suit (Defs.’ Mem. Supp. at 11), the
Francovilla matter involves allegations that New London policemen falsified police
reports and manufactured criminal charges in 2009 (see Am. Compl. ¶ IV.32(b)).3 Third,
as Plaintiff notes, the New London police force is relatively small, consisting of
approximately eighty sworn officers. (See Pl.’s Opp’n [Doc. # 51] at 20.) In light of the
small size of the police force, the prior allegations of falsifying police reports in 2009, and
the continued practice of falsifying reports in 2010, the Court finds that it is plausible that
Defendants had an informal custom of “tolerating police misconduct” and that this
custom caused the violations alleged in Counts Four and Six. See Castilla, 09 Civ. 5446
(SHS), at 8 (quoting Michael v. County of Nassau, 09-CV-5200 JS AKT, 2010 WL
3237143, at *4 (E.D.N.Y. Aug. 11, 2010)). Accordingly, the City Defendants’ motion to
dismiss is denied as to the Monell counts.

3

While Defendants note that Mr. Fracovilla did not bring suit until 2011 (see
Defs.’ Opp’n [Doc. # 49] at 14 n.2), the Court can reasonably infer that the City had
notice of the purported wrongdoing well before the formal complaint was filed.
14

2.

Counts Eight and Nine: Connecticut Constitution

As stated with respect to Officer Lynch’s motion, Plaintiff has conceded that no
private right of action exists for money damages under Sections 4 and 20 of Article First
of the Connecticut Constitution. Accordingly, the City Defendants’ motion is granted
inasmuch as it seeks to dismiss the portion of Counts Eight and Nine brought under
Article First, Sections 4 and 20 of the Connecticut Constitution.
3.

Count Nine: Connecticut Constitution Against City

In Count Nine, Plaintiff sues the City under the Sections 4, 7, 9, and 20 of Article
First of the Connecticut Constitution. The City Defendants contend that this Count fails
because there is “no authority that expressly authorizes such a cause of action under
Connecticut law” and because, even if municipal liability exists under Sections 7 and 9, a
plaintiff must establish the same basic elements as a Monell claim. (Defs.’ Mem. at 10.)
In Binette v. Sabo, 244 Conn. 23, 25-26 (1998), the Connecticut Supreme Court
held that “the Connecticut constitution gives rise to a private cause of action for money
damages stemming from alleged violations of article first, §§ 7 and 9 of our state
constitution.” While Binette clearly provides that individual defendants may be liable for
violating an individual’s rights under the state constitution, it remains an open question
whether a municipality can be liable, and, if so, on the basis of what legal standard. As
observed in Morales v. Town of Glastonbury, 3:09-CV-713 (JCH), 2012 WL 124582, at *11
(D. Conn. Jan. 17, 2012), “[t]he court cannot locate any authority in the Connecticut case
law recognizing municipal liability for violations of sections seven or nine of Article First
of the Connecticut Constitution.” Following the approach taken by a prior case in the
District, Seri v. Town of Newtown, 573 F. Supp. 2d 661 (D. Conn. 2008), the Morales court
concluded that the standards under Binette are at least as stringent as the standards under
15

Monell, and that, because the plaintiff had not established Monell liability, the plaintiff’s
municipal claims under the state constitution failed as well. See Morales, 2012 WL
124582, at *11; see also Seri, 573 F. Supp. 2d at 670 (concluding that the court “need not
reach the question whether the Connecticut courts would recognize a similar claim
against municipalities for violations of the Connecticut Constitution because that claim
would also fail for [the same reasons that the plaintiff’s Monell claim failed].”). Here,
however, the Court has determined that Plaintiff has adequately pled his Monell claims,
and the Court thus cannot dismiss the Count Nine on the ground identified in Morales
and Seri.
As the City Defendants have not put forward any legal basis that Connecticut law
bars municipal liability under Binette, their motion to dismiss is denied as to Count Nine.
III.

Conclusion
For the reasons stated above, Officer Lynch’s Motion to Dismiss [Doc. # 26] and

the City Defendants’ Motion to Dismiss [Doc. # 48] are GRANTED in part and DENIED
in part. Counts Eight and Nine are limited to claims under Article First, Section 7 and 9
of the Connecticut Constitution. In all other respects, both motions to dismiss are denied.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 14th day of March, 2013.

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