Ortiz v. Bridgeport P.D.

Filing 27

RULING (see attached) granting Defendant's 25 Motion for Judgment on the Pleadings and entering judgment for Defendant. The Clerk is directed to dismiss the 1 Complaint with prejudice and close the file. Signed by Judge Charles S. Haight, Jr. on June 29, 2017.(Pskowski, R.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

MONDAY J. ORTIZ,
Plaintiff,

3:14-cv-01614 (CSH)

v.
BRIDGEPORT POLICE DEPARTMENT,
June 29, 2017
Defendant.

RULING ON MOTION FOR JUDGMENT ON THE PLEADINGS
HAIGHT, Senior District Judge:
This action, seeking relief for alleged civil rights violations by a State actor pursuant to 42
U.S.C. § 1983, arises from the arrest of Plaintiff Monday J. Ortiz ("Ortiz" or "Plaintiff") by Officer
M. Mazzacco of the Bridgeport Police Department on the evening of October 3, 2014. Plaintiff
brought this action pro se, and following a number of procedural delays and inattentions, on the part
of both parties,1 Defendant Bridgeport Police Department ("B.P.D." or "Defendant") has filed a
Motion for Judgment on the Pleadings (Doc. 25), pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. This Ruling decides that Motion.
I. BACKGROUND
The following recitation of events and references to paragraph numbers are derived from
Plaintiff's Complaint (Doc. 1) and its exhibit, the Connecticut Uniform Police Accident Report form
("Accident Report") completed by Officer Mazzacco. In considering this motion, the Court accepts
1

See, e.g., the Court's Notice to Counsel, Doc. 7(proposing to dismiss this action under Local
Rule of Civil Procedure 41(a), for failure to prosecute); Defendant's Motion to Set Aside Default,
Doc. 21 at 2 (ascribing B.P.D.'s unintentional failure to enter a timely appearance to "an apparent
interoffice communication glitch").

all well-pleaded material facts in the Complaint as true and admitted, and construes them in the light
most favorable to the pro se Plaintiff.
On October 3, 2014, Plaintiff was, through no fault of his own, involved in a sideswipe motor
vehicle collision near the intersection of Park and Fairfield Avenues, in Bridgeport, Connecticut.
¶¶ 2-3; Accident Report. Officer Mazzacco conducted a traffic stop of Plaintiff's vehicle, and
subsequently arrested and handcuffed Plaintiff, at or near Plaintiff's Bridgeport residence, 651 State
Street. ¶¶ 5-6; Accident Report. Plaintiff was instructed to sit in the back of Mazzacco's patrol car.
¶ 5; Accident Report. Plaintiff asked Mazzacco why he was being treated in this manner, and
Mazzacco told Plaintiff it was because of Plaintiff's nationality, skin color, who Plaintiff was, and
who Plaintiff associated with.2 ¶ 5. Plaintiff was issued a Misdemeanor Summons for Evading
Responsibility (Conn. Gen. Stat. § 14-244(b)), Misuse of Plate (Conn. Gen. Stat. § 14-147(a)), and
No Insurance (Conn. Gen. Stat. § 14-213b). ¶ 5(a); Accident Report. As Plaintiff left the patrol car,
Mazzacco "clearly stated" that he did not like the Plaintiff, and wished that the Plaintiff would leave
Connecticut all together. ¶ 5(b). Plaintiff reports that Mazzacco told him, "If I don't leave
[Connecticut] this is just the beginning of my end they will take my life." ¶ 5(b). Plaintiff was
thereby put in fear for his and his family's lives. ¶ 6. Plaintiff is followed by patrol cars everywhere
he goes, he is unable to identify which officers are inside these patrol cars, and he is unable to go
about his daily business. ¶ 6. Having been warned to leave Bridgeport and Connecticut by
Mazzacco and unspecified "others," Plaintiff believes his life to be in danger. ¶ 6.
2

It is unclear from the wording of the Complaint whether Plaintiff is alleging that Mazzacco
actually stated these rationales to Plaintiff at the time of arrest, or whether Plaintiff merely asked
Mazzacco if Plaintiff was being mistreated on discriminatory grounds. In the interest of construing
the facts in the light most favorable to the non-moving party, and given the special solicitude shown
to pro se litigants, this Ruling interprets the factual account alleged in the Complaint, see Doc. 25
at 2, in the light most favorable to Plaintiff.
2

The Complaint names, as sole defendant, the B.P.D. On September 20, 2016, Defendant
filed an Answer (Doc. 24), asserting, as an affirmative defense, that the Complaint fails to state a
claim upon which relief can be granted, a defense reiterated in the instant Motion for Judgment on
the Pleadings (Doc. 25).
II. STANDARD OF REVIEW FOR RULE 12(c) MOTION
In general, "the standard for addressing a Rule 12(c) motion for judgment on the pleadings
is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). Under the now well-established Twombly/Iqbal
standard, a complaint should be dismissed only if it does not contain enough allegations of fact to
state a claim for relief that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007).
The Second Circuit has explained that, after Twombly and Iqbal, the Court's inquiry under
Rule 12(b)(6) is guided by two principles:
First, although a court must accept as true all of the allegations
contained in a complaint, that tenet is inapplicable to legal
conclusions, and threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.
Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss and determining whether a complaint
states a plausible claim for relief will be a context-specific task that
requires the reviewing court to draw on its judicial experience and
common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (quoting Iqbal, 556 U.S. at 663-64, 678) (citations
and internal quotation marks omitted). Thus, "[w]hen there are well-pleaded factual allegations, a
court should assume their veracity and . . . determine whether they plausibly give rise to an
entitlement of relief." Iqbal, 556 U.S. at 664.

3

In considering a motion to dismiss, this Court accepts as true the factual allegations set forth
in the complaint and draws all reasonable inferences in the Plaintiff's favor. See Zinermon v. Burch,
494 U.S. 113, 118, (1990); In re NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir.2007). When
evaluating a 12(c) motion, the well-pleaded material facts of the complaint are taken as admitted by
the moving party. Shapiro v. Merrill Lynch, Pierce, Fenner & Smith Inc., 495 F.2d 228, 231(2d Cir.
1974); Gumer v. Shearson, Hammill & Co., Inc., 516 F.2d 283, 286 (2d Cir. 1974); Lo Sacco v. City
of Middletown, 745 F. Supp. 812, 814 (D. Conn. 1990) (Nevas, J.).
The defense raised by Defendant's instant Motion for Judgment on the Pleadings – failure
to state a claim upon which relief can be granted – is most often asserted through a Rule 12(b)(6)
motion to dismiss, prior to the closure of the pleadings. See Fed. R. Civ. P. 12(b)(6). However,
where, as here, the pleadings have closed and a 12(b)(6) motion would be untimely, such a defense
is properly considered on a 12(c) motion. See Gumer, 516 F.2d at 286; Doe v. City of Bridgeport,
No. 3:04-CV-1197 (WWE), 2005 WL 1377912, at *1 (D. Conn. June 1, 2005) (Eginton, J.)
("However, even though the 12(b)(6) motion is asserted through the procedural device of a 12(c)
motion, the standards employed in determining the motion will be the same as if the defense had
been raised prior to the closing of the pleadings."); Lo Sacco, 745 F. Supp. at 814; Shapiro v. Merrill
Lynch, Pierce, Fenner & Smith Inc., 353 F. Supp. 264, 268 (S.D.N.Y. 1972) (Tenney, J.), aff'd, 495
F.2d 228; see also Fed. R. Civ. P. 12(h)(2)(B) ("Failure to state a claim upon which relief can be
granted . . . may be raised . . . by a motion under Rule 12(c)").
III. SPECIAL SOLICITUDE AS TO PRO SE COMPLAINTS
Where, as here, the complaint has been filed pro se, the plaintiff is "entitled to special
solicitude" and the court construes "his pleadings to raise the strongest arguments that they suggest."

4

Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. June 19, 2015) (internal quotation
marks omitted) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006)).
"Dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable
of cases." Fowlkes,790 F.3d at 387 (quoting Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008)).
"At the same time, a pro se complaint must allege enough facts to state a claim to relief that
is plausible on its face." Fowlkes,790 F.3d at 387 (internal quotation marks omitted) (quoting
Twombly, 550 U.S. at 570). See also Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013)
("Nonetheless, a pro se complaint must state a plausible claim for relief"). In particular, pro se
litigants are obliged to comply with the minimal standards of notice pleading under Rule 8 of the
Federal Rules of Civil Procedure. See, e.g., Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014).
Ultimately, "the rule in favor of liberal construction cannot save pro se litigants who do not present
cognizable arguments." Collins v. Blumenthal, 581 F. Supp. 2d 289, 291 (D. Conn. 2008).
IV. DISCUSSION
Though the Complaint does not identify the basis for the Court's jurisdiction, it describes
a claim that could be brought under 42 U.S.C. § 1983: "Section 1983 provides a civil claim for
damages and injunctive relief against any person who acts under color of state law to deprive
another of a constitutional right. Allegations of facts constituting an arrest without probable cause,
an unreasonable search and seizure, or malicious prosecution state claims under section 1983." Day
v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990), as amended on reh'g (Aug. 29, 1990).
As this Court recently observed in ruling on a motion to dismiss a pro se § 1983 complaint,
"a municipal police department is not subject to suit under § 1983." Hiller v. Farmington Police
Dep't, No. 3:12-CV-1139 CSH, 2015 WL 4619624, at *8 (D. Conn. July 31, 2015) (citation
omitted). Undoubtedly, municipalities themselves are subject to suit under § 1983. See Monell v.
5

Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). "A municipal police department, however, is not a
municipality. Rather, it is a sub-unit or agency of the municipal government through which the
municipality fulfills its policing function. Because a municipal police department is not an
independent legal entity, it is not subject to suit under section 1983." Reed v. Hartford Police Dep't,
No. 3:03-CV-2147 (SRU), 2004 WL 813028, at *2 (D. Conn, Apr. 6, 2004) (Underhill, J.) (citation
omitted) (collecting cases).
Accepted as true and considered in the light most favorable to the Plaintiff, the acts and
words ascribed to Officer Mazzacco by the Complaint might amount to a deprivation of Plaintiff's
constitutional rights under color of state law. However, the Court does not need to consider that
ultimate question, because the Complaint is not directed against a person subject to suit under §
1983, and therefore must fail.
This suit was filed against the B.P.D., and not the City of Bridgeport, a municipality subject
to suit under § 1983. This apparent misdirection is the type of procedural error or misapprehension
which, when made by a pro se litigant, will be met with leniency by the Court. Here, however,
Plaintiff has been given adequate notice of this error and made no effort to remedy it, or even to
timely oppose the instant Motion.3

3

The Court notes that Plaintiff has, by all appearances, abandoned his suit. The last Order
(Doc. 22) of this Court was mailed to Plaintiff's address on record, 651 State Street, Apt. 417,
Bridgeport, CT 06604 on August 1, 2016. The envelope containing that Order was returned to the
Clerk's office by the postal service on September 2, 2016, marked undeliverable because unable to
forward. The local rules of this District provide that attorneys appearing before the Court must
notify the Clerk within thirty days of a change of address. D. Conn. L. Civ. R. 83.1(c)(3). Further,
the same rules require a pro se litigant to "give an address within the District of Connecticut where
service can be made upon him or her in the same manner as service is made on an attorney." D.
Conn. L. Civ. R. 83.1(c)(2). By inference (and common sense), a pro se litigant who changes his
address is obliged to provide the Clerk with the new address at which service can be made, within
thirty days of the change. Judge Droney, when he sat in this District, confronted a similar situation
when ruling on a defense motion for summary judgment against a pro se plaintiff who had failed
6

In these circumstances, where Plaintiff failed to name and serve a person subject to suit
under § 1983, and subsequently abandoned the action for all practical purposes, Plaintiff fails to
state a claim upon which relief can be granted, and Defendant is entitled to judgment on the
pleadings.
V. CONCLUSION
For the reasons stated above, Defendant's Motion for Judgment on the Pleadings (Doc. 25)
is GRANTED. The Clerk is directed to dismiss the complaint with prejudice, enter judgment in
favor of Defendant, and close the file.
It is SO ORDERED.
Dated: New Haven, Connecticut
June 29, 2017
/s/ Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

to update her address. Washington v. Dodrill, No. 3:09-CV-89 CFD, 2011 WL 219906 (D. Conn.
Jan. 20, 2011). Judge Droney granted summary judgment for defendants on the merits, and noted,
On September 16, 2010, mail sent to [Plaintiff] at the address on file
with the Court was returned as undeliverable. Local court rules
require that a pro se litigant must provide an address within the
District of Connecticut at which service may be made upon him.
Thus, the Court also could have dismissed this case for failure to
comply with court rules.
Id. at *4 n. 2 (emphasis omitted) (citing D. Conn. L. Civ. R. 83.1(c)(2)). As in Judge Droney's case,
the Court need not rely on Plaintiff's inattention to resolve this matter, as Defendant is entitled to
judgment on the pleadings for Plaintiff's failure to state a claim.
7