Golodner v. New London et al
Filing
34
ORDER granting defendant's 16 Motion to Dismiss. See attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 03/31/15. (Rock, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DANIEL GOLODNER,
Plaintiff,
v.
CITY OF NEW LONDON, CT; and
MARGARET ACKLEY, individually and in
her official capacity,
Defendants.
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CIVIL ACTION NO.
3:14-cv-00173-VLB
MARCH 31, 2015
MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION TO
DISMISS
Before the Court is defendants City of New London (“New London”)
and Margaret Ackley’s motion to dismiss plaintiff Daniel Golodner’s
complaint in its entirety. Plaintiff’s complaint contains three causes of
action: (1) a claim that New London has an unofficial policy and custom of
allowing warrantless entry into private property in New London in violation
of the Fourth Amendment of the United States Constitution; (2) a claim that
defendant Ackley failed to provide proper training for New London Police
Department police officers; and (3) a claim for violation of Article I, Section
7 of the Connecticut State Constitution against both defendants. For the
following reasons, defendant’s motion to dismiss is granted.
I. FACTUAL BACKGROUND
The following facts are taken from plaintiff’s complaint unless
otherwise specified. At all times relevant to the complaint, plaintiff Daniel
Golodner has owned and lived in a single-family home on Colman Street, in
the city of New London, Connecticut. Defendant Margaret Ackley was, at
all times relevant to the complaint, a supervisor in the New London Police
Department.1 As the top policy-maker for the New London Police
Department (the “NLPD”), Ackley is responsible for the proper training of
the officers of the NLPD, and for ensuring that the officers follow
constitutional mandates. Ackley is a municipal employee, employed by the
defendant City of New London.
On various dates, including approximately May 25, 2006, and August
22, 2008, and continuing through at least September 23, 2011, uniformed
NLPD officers have entered the side and rear yards of plaintiff’s Colman
Street property without permission or warrant.
Plaintiff’s property was marked with “No Trespassing” signs and
enclosed by a fence running along the rear and side perimeters of the
property during the times relevant to the complaint. On “various
occasions” plaintiff has instructed officers to get off his property and told
them that they have no permission to remain on his property. Plaintiff
communicated on multiple occasions with supervisors in the NLPD,
including defendant Ackley, to protest the intrusion onto his property.
In spite of plaintiff’s previous complaints, on or about February 16,
2011, a NLPD police officer entered the side and rear of plaintiff’s property
and conducted a warrantless search, without first contacting the plaintiff.
On or about September 23, 2011, on or more NLPD police officers entered
Plaintiff states that Ackley has “risen to the position of Chief of Police.”
Compl. ¶ 5. However, the complaint does not make clear whether Ackley
was Chief of Police at the times relevant to the complaint.
1
2
the side and rear of plaintiff’s property, and ignored plaintiff’s demand that
they leave.
II. STANDARD OF LAW
“‘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. United States, 678 F.3d 147, 152 (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) (citing
Iqbal, 556 U.S. at 678-79). “A court ‘can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled
3
to the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). “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, 556 U.S. at 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).
III. DISCUSSION
A. Statute of Limitations
Defendants argue that plaintiff’s claims are barred in part by the
three-year statute of limitations for section 1983 claims. Plaintiff’s
complaint, which was filed February 11, 2014, alleges unlawful intrusions
by NLPD officers on May 25, 2006, August 22, 2008, February 16, 2011, and
September 23, 2011. Defendant argues that claims regarding the May 25,
2006 and August 22, 2008 claims are untimely. Plaintiff argues in response
that his allegations regarding conduct outside the limitations period qualify
for an exception to the statute of limitations because plaintiff alleges a
continuing course of conduct.
Section 1983 claims are subject to a three year statute of limitations
in Connecticut. Barile v. City of Hartford, 264 F. App’x 91, 91 (2d Cir. 2008)
(“In Connecticut, a plaintiff must bring his § 1983 claim within three years
of the date his claim accrues.” (citing Lounsbury v. Jeffries, 25 F.3d 131,
134 (2d Cir. 1994); Conn. Gen. Stat. § 52-577). There is an exception to the
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statute of limitations applicable to section 1983 claims for acts that are part
of a continuing course of conduct.
The continuing violation doctrine tolls the statute of limitations on a
plaintiff’s section 1983 claim “where the alleged violation is ‘composed of a
series of separate acts that collectively constitute one unlawful . . .
practice.’” Vaden v. Connecticut, 557 F. Supp. 2d 279, 284 (D. Conn. 2008)
(quoting Washington v. Cnty. Of Rockland, 373 F.3d 310, 318 (2d Cir. 2004)).
“An allegation of several unlawful acts, even similar ones, does not, in and
of itself, establish a continuing violation.” Cotz v. Mastroeni, 476 F. Supp.
2d 332, 357 (S.D.N.Y. 2007) (citing Lambert v. Genesee Hosp., 10 F.3d 46, 52
(2d Cir. 1993)). To invoke the continuing violation doctrine, plaintiff must
prove: “(1) an underlying unconstitutional policy or practice; and (2) an
action taken pursuant to that policy during the statutory period preceding
filing the complaint.” Id. (citing Conn. Light & Power Co. v. Sec’y of the
United States Dep’t of Labor, 85 F.3d 89, 96 (2d Cir. 1993)).
In a footnote, defendants questioned whether the continuing
violation doctrine can apply outside of the context of employment
discrimination claims. Defendant cites no authority barring the use of the
continuing violation doctrine with regards to Fourth Amendment claims,
and as there is precedent for expanding the doctrine beyond the
employment realm to other policies that are “constitutionally infirm,” the
court finds defendant’s argument unpersuasive. See Shomo v. City of New
York, No. 07-1208, 2009 U.S. App. LEXIS 23076, at *10 (2d Cir. Apr. 1, 2009)
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(finding that the continuing violation doctrine can apply “when a prisoner
challenges a series of acts that together comprise an Eighth Amendment
claim of deliberate indifference to serious medical needs.”); Ruane v. Cnty.
Of Suffolk, 923 F. Supp. 2d 454, 459 n.6 (E.D.N.Y 2013) (“Since the
continuing violation doctrine has been expanded to non-employment
discrimination cases, courts look to whether the "policies were
constitutionally infirm" instead of whether such policies were
discriminatory.” (quoting Remigo v. Kelly, No. 04Civ.1877, 2005 U.S. Dist.
LEXIS 16789, at *18-19 (S.D.N.Y. Aug. 12, 2005))).
The doctrine applied to the plaintiff’s claims, but he has not plead
adequate facts for the court to determine whether an unconstitutional
policy existed or whether each is a “discrete act” or whether the acts of
which he complains are the product of an underlying unconstitutional
policy or practice, as discussed in greater detail below, infra Part III.B. The
claims arising from the May 25, 2006 and August 22, 2008 incidents are
thus dismissed without prejudice to re-filing in an amended complaint
within twenty-one (21) days of this opinion. Cf. Harper v. City of New York,
No. 09cv05571, 2010 U.S. Dist. LEXIS 122184, at *19 n.7 (E.D.N.Y. Nov. 17,
2010) (declining to apply continuing violation doctrine where plaintiff
“failed to allege that the incidents described in the amended complaint
were the result of a custom or policy rather than [discrete] occurrences.”).
B. Plaintiff’s Monell Claims Against New London
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Plaintiff alleges in his complaint that the “repeated acts” by multiple
police officers, and an apparent indifference to plaintiff’s complaints
regarding these acts, demonstrates that New London has an unofficial
policy and custom of allowing “warrantless entry into the clearly
recognized and identified curtilage of residences within the City of New
London.” Compl. ¶ 14.
Defendants argue that plaintiff has failed to adequately allege a claim
against the City of New London in Count One because: (1) he offers no
facts to support his claim that New London created an unofficial policy of
allowing unlawful searches of the “curtilage” of homeowners’ property;
and (2) the incidents named in plaintiffs’ complaint lack temporal proximity.
To prevail on a section 1983 claim against a municipality based on
the acts of a public official, a plaintiff must 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 Social Servs., 436 U.S. 658, 690-91
(1978)). The fifth element, that of an official policy that caused the
constitutional injury, "can only be satisfied where a plaintiff proves that a
'municipal policy of some nature caused a constitutional tort.’” Id. (citing
Monell, 436 U.S. at 691).
If plaintiff does not complain of an official policy, “[i]n limited
circumstances, a local government's decision not to train certain
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employees about their legal duty to avoid violating citizens' rights may rise
to the level of an official government policy for purposes of § 1983.”
Connick v. Thompson, __ U.S. __, 131 S. Ct. 1350, 1359 (2011); see also
Russo v. City of Hartford, 341 F. Supp. 2d 85, 107 (D. Conn. 2004) ((“A
plaintiff may also 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.” (citing Vann v. City of New York, 72 F.3d 1040,
1049 (2d Cir. 1995)).
“A pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate indifference
for purposes of failure to train.” Connick, 131 S. Ct. at 1360 (citing Bd. of
Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)). To be liable, a
municipality’s failure to train its employees must “amount[] to deliberate
indifference to the rights of persons with whom the untrained employees
come into contact.” Parker v. City of Long Beach, 563 F. App’x 39, 41 (2d
Cir. 2014) (quoting Connick, __ U.S. at __, 131 S. Ct. at 1359). “‘[D]eliberate
indifference is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action.’”
Connick, __ U.S. at __, 131 S. Ct. at 1360 (quoting Bryan Cnty., 520 U.S. at
407). A plaintiff must prove that city policy makers were on “actual or
constructive notice that a particular omission in their training program
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causes city employees to violate citizens’ constitutional rights” and then
chose to retain that program. Id. (citing Bryan Cnty., 520 U.S. at 410).
Plaintiff’s complaint fails to adequately allege that New London was
aware of the alleged constitutional violations. Plaintiff alleges that he told
defendants of the violations, but plaintiff does not allege when he
communicated with defendants. Plaintiff says only:
“plaintiff has communicated on multiple occasions with supervisors
of the defendants’ officers, including defendant Ackley, to protest
the unlawful and unconstitutional intrusion into the curtilage of his
property.” Compl. ¶ 11a.2
“plaintiff communicated with elected New London municipal officials
regarding his complaints and addressed the City Council regarding
the aforesaid unlawful entries.” Compl. ¶ 11b.
“repeated acts over the course of several years by numerous officers
. . . , despite numerous protests and complaints by the plaintiff
during and before the relevant time period.” Compl. ¶ 14.
None of these allegations is sufficient to suggest that the defendant
municipality was or should have been aware of the alleged constitutional
violations. In none of these does plaintiff say when or with whom he
communicated. The allegations in paragraphs 11a and 11b, that he
communicated with supervisors and municipal officials contain no
indication of when such communications occurred. Although plaintiff
2
There are two paragraphs number “11” in plaintiff’s complaint. The court
will refer to the first as “11a” and the second as “11b.”
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alleges in paragraph 14 that he raised “numerous protests and complaints .
. . during and before the relevant time period” this allegation is too vague.
Although it alleges that he made a protest or complaint “before the relevant
time period,” he does not say when he complained, to whom he
complained, the content of his complaints, or the response he received.
Plaintiff does allege in paragraph 12 that he made “complaints” prior
to an alleged unconstitutional search that occurred on February 16, 2011,
as plaintiff states that a New London police officer conducted a warrantless
search of the side and rear curtilage of his property “despite prior
complaints about such activity filed by the plaintiff.” Compl. ¶ 12.
Although this allegation is the closest plaintiff comes to allowing the court
to infer deliberate indifference, this allegation is too vague, as plaintiff does
not say when or to whom he complained, of what form the complaint took.
Plaintiff also alleges that “on various occasions” he has “instructed
defendants’ officers to get off his property, and/or stated that they have no
permission to remain thereupon.” Compl. ¶ 10. However, plaintiff does not
allege that these complaints were repeated up the chain of command, or
were otherwise made in such a way that the defendant municipality would
or should have learned of them.
In Grullon v. City of New Haven, the Second Circuit said that where a
complaint contained factual allegations indicating that a letter to defendant
prison warden “was sent to the Warden at an appropriate address and by
appropriate means,” the district court could draw the reasonable inference
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that the defendant had received and read the letter, and “became aware of
the alleged conditions.” 720 F.3d 133, 141 (2d Cir. 2013). In this case,
plaintiff has not plead factual allegations by which this court could draw
the inference that communications regarding the alleged unconstitutional
searches and seizures were received and read prior to any of the alleged
incidents. Plaintiff has made only vague general statements regarding his
alleged communications with defendants, and thus plaintiff has failed to
adequately allege that New London was deliberately indifferent.
Further, plaintiff has not alleged a pattern of similar unconstitutional
actions. Although plaintiff alleges four separate incidents of alleged
warrantless entry onto the “curtilage” of his residence, plaintiff has not
alleged facts to show these warrantless entries were similar or otherwise
make up a pattern of unconstitutional entry. In Connick v. Thompson, the
Supreme Court found that previous state court decisions overturning
verdicts because of Brady violations could not have put defendant district
attorney on notice that his office’s Brady training was inadequate, because
the Brady violations in the previous court decisions were not the same sort
of Brady violations at issue in Connick. 131 S. Ct. at 1360 (“Because those
incidents are not similar to the violation at issue here, they could not have
put Connick on notice that specific training was necessary to avoid this
constitutional violation.”). Similarly, because plaintiff here has alleged no
facts about the individual violations, the court cannot draw the reasonable
inference that there is a pattern of similar unconstitutional acts here.
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Defendant also argues in passing that plaintiffs have failed to allege
the second element of a Monell claim, which requires plaintiff to have
suffered a deprivation of a constitutional or statutory right. Defendants
argue that plaintiff has failed to plead sufficient facts to allow the court to
infer that the NLPD entered the “curtilage” of plaintiff’s property. Defendant
is correct that in order to enjoy Fourth Amendment protection against
unreasonable searches and seizures, a plaintiff must show that the area in
question enjoyed a “reasonable expectation of privacy.” Marchand v.
Simonson, 16 F. Supp. 3d 97, 116 (D. Conn. 2014) (quoting United States v.
Reilly, 76 F.3d 1271, 1276 (2d Cir. 1996). The Supreme Court has laid out
four factors that are relevant in determining whether an area is curtilage:
“1) "the proximity of the area claimed to be curtilage to the home;" 2)
"whether the area is included within an enclosure surrounding the home;"
3) "the nature of the uses to which the area is put;" and 4) "the steps taken
by the resident to protect the area from observation by people passing by.”
Reilly, 76 F.3d at 1276 (quoting United States v. Dunn, 480 U.S. 294, 301
(1987)). These factors are “not necessarily exclusive,” and the court is not
to apply them mechanically, as they are not a “finely tuned formula,” but
instead are “useful analytical tools.” Id. (quoting Dunn, 480 U.S. at 301).
The touchstone of the inquiry remains whether plaintiff had a reasonable
expectation of privacy in the area at issue.
Defendant is correct that by labeling the relevant area as “curtilage,”
plaintiff is not making a factual allegation, but rather stating a conclusion.
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See, e.g., Brocuglio v. Proulx, 478 F. Supp. 2d 297, 302 (D. Conn. 2007)
(“The labeling of a particular area "curtilage" as opposed to "open fields,"
therefore, states a conclusion that the area is subject to Fourth
Amendment protections.”). The yard of a residential property is not
necessarily curtilage and there is no per se rule for what is and what is not
curtilage. See, e.g., United States v. Titemore, 437 F.3d 251, 252-60 (2d Cir.
2006). In determining the scope of curtilage, the court must rely on factual
questions, although those factual questions are guided by the legal
framework laid out by the Supreme Court. See Brocuglio, 478 F. Supp. 2d
at 303.
The court does not seek at this stage to resolve the question of
whether plaintiff had a reasonable expectation of privacy over the relevant
property, as resolution of that question is better suited for summary
judgment. Cf. Carr v. Village of Richmond, No. 96 C 50203, 1996 U.S. Dist.
LEXIS 17069, at *35 n.11 (N.D. Ill. Nov. 15, 1996) (noting that “the issue of
whether a curtilage exists or whether a homeowner has a reasonable
expectation of privacy therein is better-suited to a motion for summary
judgment”). Before the case can proceed to the summary judgment stage,
however, plaintiff must plead sufficient facts to allow the court to draw a
reasonable inference that defendant entered property over which plaintiff
had a reasonable expectation of privacy. The only relevant facts contained
in plaintiff’s complaint are that the NLPD entered the “protected side and
rear yards” of plaintiff’s property and that the rear and side perimeters of
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the property are fenced. Compl. ¶¶ 8-9. Although this is very threadbare
pleading, it is plausible that the side and rear yards of plaintiff’s property
could be found to be curtilage, depending on factors such as the
configuration of the space, the uses to which it was put and its visual and
other accessibility to the public. Thus the court will not dismiss plaintiff’s
Monell claim on this grounds.
In regards to defendants’ argument regarding temporal proximity,
the authority cited by defendant does not demonstrate that temporal
proximity is an element of a Monell claim, and does not support dismissal
of plaintiff’s complaint. Although the four incidents described in plaintiff’s
complaint occur over the course of approximately five (5) years and four (4)
months, defendant provides no authority for dismissing the case on these
grounds, and the court declines to adopt this reasoning absent further
factual development.
Because the paucity of factual allegations in plaintiff’s complaint
does not allow the court to draw the reasonable inference that defendant
had an unofficial policy or custom of allowing unconstitutional searches of
plaintiff’s property, or that defendant is liable for a failure to train the NLPD,
this claim is dismissed without prejudice to re-filing in an amended
complaint within twenty-one (21) days of this opinion.
C. Supervisory Liability as to Defendant Ackley
In his second count, plaintiff alleges that Defendant Ackley is liable
under section 1983 for failing to provide adequate training to ensure that
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her subordinate officers did not violate plaintiff’s constitutional right
against warrantless entry into the curtilage of his property.
Defendants argue (1) that plaintiff has failed to adequately allege
personal involvement by defendant Ackley, and (2) that plaintiff has failed
to identify a specific defect in the NLPD officers’ training. Plaintiff takes the
opposite position on both points.
Plaintiff may not bring a section 1983 claim against Ackley based
solely on a theory of vicarious liability. Iqbal, 556 U.S. at 676 (“vicarious
liability is inapplicable to . . . § 1983 suits”). Instead, “a plaintiff must plead
that each Government-official defendant, through the official's own
individual actions, has violated the Constitution.” Id. To establish
supervisory liability, the plaintiff must show one of the following:
(1) the defendant actually and directly participated in the alleged
unconstitutional acts; (2) the defendant failed to remedy a wrong
after being informed of the wrong through a report or appeal; (3) the
defendant created or approved a policy or custom that sanctioned
objectionable conduct which rose to the level of a constitutional
violation or allowed such a policy or custom to continue; (4) the
defendant was grossly negligent in supervising the correctional
officers who committed the constitutional violation; and (5) the
defendant failed to take action in response to information regarding
the occurrence of unconstitutional conduct.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
The Second Circuit has raised the possibility that the Colon test was
overruled in part by the Supreme Court’s decision in Iqbal, and that the
requirement for making out a claim of supervisory liability is now more
demanding. See, e.g., Grullon, 720 F.3d at 139. However, the Second
Circuit has thus far declined to resolve the question, as many other courts
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in this district have noted. See, e.g., Daniels v. Murphy, No. 3:11cv286
(AWT), 2014 U.S. Dist. LEXIS 96929, at *11 (D. Conn. July 17, 2014)
(“Because it is unclear whether Iqbal overrules or limits Colon, the court
will continue to apply the categories for supervisory liability set forth in
Colon.”). This court does not need to consider the question of whether to
apply the stricter standard because plaintiff has not satisfied the less
exacting Colon standard. Further, even if plaintiff had met the Colon test,
other courts in this district have found that where the “constitutional claim
does not require a showing of discriminatory intent, but instead relies on
the unreasonable conduct or deliberate indifference standards of the
Fourth, Eighth or Fourteenth Amendments, the personal involvement
analysis set forth in Colon v. Coughlin may still apply.” Shepherd v.
Powers, No. 11Civ.6860, 2012 U.S. Dist. LEXIS 141179, at *34-35 (S.D.N.Y.
Sept. 27, 2012) (quotation and citations omitted); see also Adeyemi v.
Lightner, No. 3:12cv1525, 2014 U.S. Dist. LEXIS 17421, at *15-16 (D. Conn.
Feb. 12, 2014) (noting that “the majority of district court decisions have
declined to extend Iqbal absent clear instruction from the Second Circuit”
and applying the Colon standard to “claims of supervisory liability that do
not involve discriminatory intent.” (citations omitted)).
Plaintiff does not plead any direct involvement by defendant Ackley
in any of the alleged unconstitutional acts. Instead, plaintiff’s theory of
liability is that Ackley was aware of and deliberately indifferent to the need
to train or re-train her officers in order to prevent such unconstitutional
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acts. Plaintiff has not provided sufficient factual allegations in his
complaint to support his theory of liability. The statement that “[d]efendant
Ackley had specific knowledge concerning the need to conduct such
training . . . in light of complaints directed to her and other municipal
officials by plaintiff,” Compl. ¶ 19, is the sort of naked assertion devoid of
factual enhancement that Iqbal tells us is insufficient to state a claim.
Plaintiff also alleges that “[t]he plaintiff has communicated on multiple
occasions with supervisors of the defendants’ officers, including defendant
Ackley, to protest the unlawful and unconstitutional intrusion into the
curtilage of his property.” Compl. ¶ 11. Plaintiff omits important facts, such
as when the complaints were made, the form of the complaints, how the
complaints were transmitted, and the content of those complaints. This is
not information that is unavailable to plaintiff until he conducts discovery;
this is information that was available to plaintiff at the time his complaint
was filed. Without such factual allegations, the court cannot draw the
reasonable inference that Ackley was aware of the allegedly
unconstitutional acts or any need to train or re-train her subordinate police
officers. This claim is dismissed without prejudice to re-filing in an
amended complaint within twenty-one (21) days of this opinion.
D. Article First, Section 7 of Connecticut Constitution
As an initial matter, the court observes that it is unclear from
plaintiff’s complaint whether this claim is brought against both defendants.
The court will assume that count three is asserted against both defendants,
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as plaintiff refers to “the Defendants’ actions” in Count Three. Compl. ¶ 24.
Defendants do not explicitly address Count Three as to defendant Ackley,
perhaps owing to the vagueness of plaintiffs’ complaint, although
defendants do assert in their motion and in the introduction to their
memorandum of law that they are moving to dismiss the complaint in its
entirety.
1. Municipal Liability Under Article First, Section 7
Defendants argue that there is no right to sue a municipality under
article first, section 7 of the Connecticut Constitution. Plaintiff takes the
opposite position.
Article first, section 7 of the Connecticut Constitution provides that:
“The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches or seizures; and no warrant to
search any place, or to seize any person or things, shall issue without
describing them as nearly as may be, nor without probable cause
supported by oath or affirmation.” Although there is no explicit cause of
action in that constitutional provision, the Connecticut Supreme Court has
held that a plaintiff may bring an action against individual defendants for
money damages stemming from alleged violations of article first, section 7.
See Binette v. Sabo, 710 A.2d 688, 693-94 (Conn. 1998). However, the
Connecticut Supreme Court has not answered the question of whether the
cause of action can be extended to municipalities. See, e.g., Goode v.
Newton, No. 3:12cv754, 2013 U.S. Dist. LEXIS 35171, at *24 (D. Conn. Mar.
18
13, 2013) (noting that “it remains an open question whether a municipality
can be liable, and, if so, on the basis of what legal standard.”). However,
several Connecticut Superior Courts have found that the cause of action
cannot be extended to municipalities. See, e.g., Aselton v. Town of E.
Hartford, No. X07CV010079187S, 2002 Conn. Super. LEXIS 3904, at *18
(Conn. Super. Ct. Dec. 3, 2002) (finding no municipal liability under article
first, section 7); see also O’Connor v. Wethersfield Bd. of Educ., No.
CV0100808376, 2003 Conn. Super. LEXIS 2366, at *20 (Conn. Super. Ct. July
7, 2003) (citing Aselton and granting summary judgment because “the
court believes that the reasoning in Aselton supports the conclusion that a
Bivens action may not be brought directly against a governmental entity”),
vacated in part on other grounds upon reconsideration, 2003 Conn. Super.
LEXIS 2458 (Conn. Super. Ct. Aug. 22, 2003); Feliciano v. City of Hartford,
No. CV010806525S, 2003 Conn. Super. LEXIS 527, at *4 (Conn. Super. Ct.
Feb. 21, 2003) (distinguishing Bivens and noting that “plaintiff seeks to
extend the Bivens decision beyond its intended application” by extending
liability for a state constitutional violation to a municipality); Bazzano v.
City of Hartford, No. CV980584611S, 1999 Conn. Super. LEXIS 3145, at *6-8
(Conn. Super. Ct. Nov. 18, 1999) (dismissing article first, section 7 claim
against municipality).
There is precedent in this district for allowing a plaintiff to assert a
claim under article first, section 7 against a municipality. However, that
case is distinguishable from this action, as the issue was not presented for
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the court’s consideration. The defendant did not “put forward any legal
basis that Connecticut law bars municipal liability under Binette” and
plaintiff had adequately plead Monell claims. Goode, 2013 U.S. Dist. LEXIS
35171, at *25. The instant case is more akin to several other decisions in
this district in which the court found that plaintiffs had failed to adequately
allege a Monell claim, and therefore declined to reach the issue of whether
plaintiff may assert municipal liability under article first, section 7. See
Rogoz v. City of Hartford, No. 3:11cv500, 2012 U.S. Dist. LEXIS 136405, at
*21-22 (D. Conn. Sept. 24, 2012) (dismissing plaintiff’s claim under article
first, section 7 for failing to adequately allege a Monell claim); Morales v.
Town of Glastonbury, No. 3:09-cv-713, 2012 U.S. Dist. LEXIS 4796, at *35-36
(D. Conn. Jan. 17, 2012) (declining to reach question of whether
Connecticut courts would allow a claim of municipal liability under article
first, section 7 where plaintiff failed to establish a viable Monell claim
against the municipal defendant); Seri v. Town of Newtown, 573 F. Supp. 2d
661, 670 (D. Conn. 2008) (same). Because plaintiff has not adequately
alleged a claim against New London under the federal constitution, the
court declines to consider whether plaintiff’s claim is cognizable, and
grants defendant’s motion to dismiss without prejudice to re-filing in an
amended complaint within twenty-one (21) days of this opinion.
In regards to defendant Ackley, defendant cites to no authority
barring plaintiff from bringing a claim of supervisory liability for violation of
article first, section 7. Given that the Connecticut Supreme Court relied on
20
the policy reasons articulated in Bivens3 when finding that a plaintiff may
bring a claim under article first, section 7, Binette, 710 A.2d at 700 (“a state
Bivens-type action is an appropriate remedy for the unique harm likely to
result from a violation of [article first, section 7]”), it is a logical extension
of that reasoning to allow a claim for supervisory liability, as a plaintiff may
bring a federal Bivens claim against a supervisory defendant, see, e.g.,
Vazquez-Mentado v. Buitron, 995 F. Supp. 2d 93 (N.D.N.Y. 2014)
(considering a Bivens claim for supervisory liability).
The court need not at this time reach the question of whether plaintiff
may bring a claim for supervisory liability under article first, section 7, as
plaintiff adds no new allegations in support of his claim of supervisory
liability for a violation of the Connecticut Constitution. Because plaintiff
has not adequately alleged that defendant Ackley had information
indicating that unconstitutional acts were occurring, see supra Part III.C,
the claim is dismissed without prejudice to re-filing in an amended
complaint within twenty-one (21) days of this opinion.
2. Governmental Immunity
Defendant argues that governmental immunity protects New London
and Ackley from liability because their duties require the exercise of
discretion. Plaintiff argues in response that “unconstitutional conduct is
3
“Bivens” refers to Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971), in which the Supreme Court created a
private right of action against individual defendants for damages arising
from injuries sustained as a result of a violation of the Fourth Amendment
to the U.S. Constitution.
21
never a ‘discretionary act,’” Pl. Obj. at 23, and invokes an exception to
governmental immunity.
Municipalities in Connecticut enjoy statutory immunity from liability
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.” Conn. Gen. Stat. § 52-557n(a)(2)(B). “[T]he determination
as to whether governmental immunity may successfully be invoked by a
municipality . . . turns not on the plaintiff's theory of negligence but, rather,
on the character of the act or omission complained of in the complaint.”
Segreto v. City of Bristol, 804 A.2d 928, 934 (Conn. App. Ct. 2002) (citations
omitted). Connecticut courts apply the same analysis to both municipalities
and their employees when considering governmental immunity, and this
court will follow suit. See, e.g., Violano v. Fernandez, 907 A.2d 1188, 119495 (Conn. 2006) (“Section 52-557n(a)(2)(B) extends, however, the same
discretionary act immunity that applies to municipal officials to the
municipalities themselves”); Myers v. City of Hartford, 853 A.2d 621, 625
(Conn. App. Ct. 2004) (“employee immunity for discretionary acts is
identical to the municipality's immunity for its employees’ discretionary
acts under § 52-557n.”).
A “ministerial” duty is defined as “duty which is to be performed in a
prescribed manner without the exercise of judgment or discretion.” Evon v.
Andrews, 559 A.2d 1131, 1134 (Conn. 1989) (quotation and citations
22
omitted). “The hallmark of a discretionary act is that it requires the exercise
of judgment.” Violano, 907 A.2d at 1193 (quotation and citation omitted).
Even if a municipality or a municipal employee would otherwise be
covered by qualified immunity, Connecticut court have recognized three
exceptions to the immunity: “first, where 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 . . . second, where a
statute specifically provides for a cause of action against a municipality or
municipal official for failure to enforce certain laws . . . and third, where the
alleged acts involve malice, wantonness or intent to injure, rather than
negligence.” Cotto v. Bd. of Ed. Of City of New Haven, 984 A.2d 58, 60 n.3
(Conn. 2009) (quoting Durrant v. Bd. of Educ., 931 A.2d 859 (Conn. 2007)).
As plaintiff’s complaint is currently plead, defendant New London is
entitled to immunity because plaintiff’s claims arise from discretionary
acts. The Connecticut Supreme Court “has explained that ‘[i]t is firmly
established that the operation of a police department is a governmental
function, and that acts or omissions in connection therewith ordinarily do
not give rise to liability on the part of the municipality.’” Swanson v. City of
Groton, 977 A.2d 738, 748 (Conn. App. Ct. 2009) (affirming lower court’s
granting of summary judgment on plaintiff’s claim that defendant
municipality was liable for failing to properly train a police officer (citing
Gordon v. Bridgeport Housing Auth., 544 A.2d 1185, 1195 (Conn. 1988));
see also Gordon, 544 A.2d at 1195 (“The plaintiff's claims run counter to the
23
great weight of authority that the operation of a police department is a
discretionary governmental function.”) (collecting cases). Plaintiff does not
allege that New London failed to carry out some duty which is to be
performed in a prescribed manner without the exercise of judgment or
discretion. Rather, plaintiff’s claims arise from an alleged unofficial policy
or custom. It appears to this court that the making of policy and or custom
in managing a police department requires the exercise of judgment, except
where the policy or custom violates clearly established law. As the plaintiff
cites to nothing that shows otherwise, New London is entitled to immunity
from this claim.
Defendant Ackley is also entitled to immunity, as “numerous
Superior Court judges have held that the acts of training and supervising
police officers constitute discretionary acts as a matter of law.” Rokicki v.
Putnam Fish & Game Club, Inc., No. WWMCV116003596S, 2012 Conn.
Super. LEXIS 2202, at *22 (Conn. Super. Ct. Aug. 28, 2012) (collecting
cases); see also Bento v. City of Milford, No. 3:13cv1385(JBA), 2014 U.S.
Dist. LEXIS 59079, at *14-15 (D. Conn. Apr. 29, 2014) (“considerations of
who to hire, how to train such people, and how to supervise employees are
decisions requiring the use of judgment and discretion." (quoting Gervais
v. Town of W. Hartford Bd. of Educ., No. CV950555396S, 1996 Conn. Super.
LEXIS 1897, at *11 (Conn. Super. Ct. July 25, 1996))); Mazariegos v. City of
Stamford, No. FSTCV116010359S, 2013 Conn. Super. LEXIS 2359, at *7
(Conn. Super. Ct. Oct. 17, 2013) (“In the context of claims arising out of the
24
failure to properly or adequately train and supervise municipal police
officers, the courts have generally found that such considerations fall
within the discretionary function of the municipality.”) (collecting cases);
Michalewski v. Town of Farmington, NO. CV126014761, 2013 Conn. Super.
LEXIS 1404, at *26-27 (Conn. Super. Ct. June 25, 2013) (“Courts in
Connecticut consistently have held that hiring, supervising, training and
firing police officers are discretionary duties protected by governmental
immunity.”) (collecting cases).
Plaintiff has not alleged that Ackley was obligated under any set of
statute, rules, regulations, or ordinances to train her subordinate officers in
a certain way, and thus Ackley is entitled to qualified immunity under the
complaint as it is now plead. See, e.g., Rokicki, 2012 Conn. Super. LEXIS
2202, at *21-22 (dismissing plaintiff’s failure to train claim against municipal
employee where “there is no showing that [municipal employee] was
obligated under any set of statutes, regulations, ordinances, or rules to
perform training in a prescribed manner without the exercise of judgment
or discretion.”).
Of the three exceptions to qualified immunity, plaintiff argues only
the “imminent harm exception,” which applies where 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. Pl. Obj. at 25.
Plaintiff asserts he was an “identifiable person” because he had
complained to defendants about the alleged unconstitutional conduct, and
25
that the defendants failed to stop it. To invoke the imminent harm
exception a plaintiff must show all three of the following: “(1) an imminent
harm; (2) an identifiable victim; and (3) a public official to whom it is
apparent that his or her conduct is likely to subject that victim to that
harm.” Doe v. Petersen, 903 A.2d 191, 198 (Conn. 2006).
To the extent that plaintiff argues that he was an identifiable victim
because he made complaints, plaintiff has failed to adequately allege that
defendants were aware of the alleged unconstitutional searches, as
discussed above, supra Part III.B-C. Even assuming, hypothetically, that
plaintiff had included sufficient factual allegations for the court to infer that
he had complained of earlier unconstitutional acts before the later
incidents occurred, plaintiff fails to invoke the imminent harm exception. It
would not be apparent to any public official that New London’s alleged
unofficial policy, or Ackley’s failure to train, would necessarily result in
harm to plaintiff. Cf. Seri, 573 F. Supp. 2d at 676 (“Because it would not be
apparent to any public official that the result of not disciplining its officers
would be to subject [plaintiff] to a significant and foreseeable risk of
imminent harm, this allegation is also insufficient to bring it within the
ambit of the identifiable person/imminent harm exception as a matter of
law.”). The conduct alleged would victimize the entire community, and not
just one identifiable victim. Cf. Evon, 559 A.2d at 1135 (“The class of
possible victims of an unspecified fire that may occur at some unspecified
time in the future is by no means a group of ‘identifiable persons’").
26
Plaintiff has failed to invoke any exception to qualified immunity as
to either defendant. Although the issue of governmental immunity will often
be a question of fact to be decided by a jury, Connecticut courts have
recognized that “there are cases where it is apparent from the complaint.”
Segreto, 804 A.2d at 934 (quotation and citations omitted). As it is currently
plead, plaintiff’s claims under article first, section 7 against both
defendants are dismissed as barred by governmental immunity.
3, Egregiousness
Defendant argues correctly that Connecticut courts limit liability for
violations of article first, section 7 to circumstances involving egregious
violations. See Bauer v. City of Hartford, No. 3:07-cv-1375, 2010 U.S. Dist.
LEXIS 115199, at *37 (D. Conn. Oct. 29, 2010) (“Since Binette, Connecticut
courts have limited private rights of action for Article 1 §§ 7, 9 violations to
circumstances involving egregious violations.”); see also ATC P’Ship v.
Town of Windham, 741 A.2d 305, 314 (Conn. 1999) (“in [Binette v. Sabo] . . .
we recognized the validity of such a state constitutional claim under article
first, §§ 7 and 9, of our state constitution in the context of allegations of an
egregiously unreasonable search and seizure.”). There mere fact of illegal
entry into plaintiff’s home “does not rise to [the] level of egregiousness
necessary to sustain a claim under the Connecticut Constitution.” Bauer,
2010 U.S. Dist. LEXIS 115199, at *38; see also Martin v. Brady, 780 A.2d 961,
967 (Conn. App. Ct. 2001) (finding that plaintiff’s allegations of “having
been pushed to the ground on one occasion and of having windows and
27
doors smashed on another occasion” by defendant officers did not rise to
the level of egregious conduct).
Plaintiff argues that repeated unconstitutional entries onto plaintiff’s
property is egregious conduct. Plaintiff cites to Connecticut authority for
the principle that “[t]he English common law, upon which much of this
country's constitutional and common law is based, recognized that
intrusion into the home constituted especially egregious conduct.” State v.
Geisler, 610 A.2d 1225, 1233 (Conn. 1992) (affirming appellate court’s ruling
that defendant’s suppression motion should be granted.). However, Geisler
does not address civil liability under article first, section 7, and plaintiff
cites to no authority to counter precedent establishing that mere unlawful
entry does not itself rise to the level of egregiousness required to sustain a
claim under article first, section 7. Plaintiff also cites to Rolon v. Murray, in
which the Connecticut Superior Court denied defendant police officers’
motion to dismiss plaintiffs’ Connecticut Constitution claims. No.
CV00043490S, 2002 Conn. Super. LEXIS 3754 (Conn. Super. Ct. Nov. 26,
2002). Plaintiff’s citation to Rolon ignores the fact that in addition to
alleging unconstitutional entry into plaintiffs’ home, the Rolon plaintiffs
also alleged that the were assaulted and beaten by the defendants, causing
them bodily injury and pain. 2002 Conn. Super. LEXIS 3754, at *2. Plaintiff
cites to nothing to contradict precedent finding that mere unconstitutional
entry is insufficient to sustain a claim under article first, section 7. Because
plaintiff’s complaint contains no factual allegations beyond the allegation
28
that NLPD officers made warrantless entries into the side and rear yards of
his property, plaintiff has failed to allege conduct sufficiently egregious to
support a claim under article first, section 7.
Because defendants are entitled to qualified immunity and because
plaintiff has for the above reasons failed to adequately allege claims under
article first, section 7, Count Three is dismissed as to both defendants. If
plaintiff wishes to re-plead the claims in Count Three, he must file a motion
seeking leave to amend, accompanied by a memorandum of law citing
authority for (1) why this court should disregard Connecticut Superior
Court cases rejecting municipal liability under article first, section 7, and
(2) why his claims are not barred by governmental immunity, as well as a
proposed amended complaint, within twenty-one (21) days of this opinion.
If plaintiff files such a memorandum of law, defendant’s response is due
fourteen (14) days after that.
CONCLUSION
For the above reasons, defendant’s motion to dismiss is granted. If
plaintiff wishes to file an amended complaint reasserting Counts One and
Two, it is due twenty-one (21) days from the date of this opinion. If plaintiff
wishes to re-allege Count Three, he must file a motion seeking leave to
amend, supported by a memorandum of law as described above in Part
III.D.3 and a proposed amended complaint within twenty-one (21) days of
this opinion.
IT IS SO ORDERED.
29
_______/s/__________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 31, 2015.
30
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