Kaminsky v. Schriro et al
Filing
63
ORDER. The Court inadvertently omitted the remaining claim against two defendants -- Solenski and Flanagan -- in their individual capacities. Additionally, the Court inadvertently included Palmer as a remaining defendant. Therefore, the 62 Ruling on Motions to Dismiss is vacated and replaced with the attached Corrected Order. Signed by Judge Michael P. Shea on 6/21/2016. (Connelly, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSEPH W. KAMINSKY, JR.,
Plaintiff,
No. 3:14-cv-01885 (MPS)
v.
DORA B. SCHRIRO, Commissioner of the
Department of Emergency Services and Public
Protection, et al.,
Defendants.
CORRECTED RULING ON MOTIONS TO DISMISS
Plaintiff Joseph W. Kaminsky, Jr. brings this civil rights action against state and local
officials alleging violations of the First, Second, and Fourth Amendments of the United States
Constitution and Article First, Sections 10 and 15, of the Connecticut Constitution. The case
arises from the search of, and seizure of firearms from, Kaminsky’s property and from
Kaminsky’s attempts to recover those firearms. Kaminsky sues the following defendants in their
individual and official capacities: Dora B. Schriro, Commissioner of the Connecticut Department
of Emergency Services and Public Protection (“DESPP”); DESPP Sergeant Paolo D’Alessandro;
Chief of the Town of Coventry Police Department (“CPD”) Mark A. Palmer1; and CPD
Lieutenants Walter Solenski and Brian Flanagan. He sues the following defendants in their
individual capacities only: Connecticut State Police (“CSP”) Officers Barbara Mattson, Vincent
Imbimbo, and Sean Musial, and CPD Officers Michael Hicks, Robert Dexter, and Ted
Opdenbrouw.
The Amended Complaint asserts three counts. In Count One, Kaminsky claims that
Defendants D’Alessandro, Mattson, Musial, Imbimbo, Palmer, Solenski, Flanagan, Dexter,
1
The Court granted Defendant Palmer’s motion to dismiss on June 16, 2015. He is no longer a defendant
in the case. (ECF No. 32.)
Opdenbrouw, and Hicks unlawfully searched and seized his property in violation of the Fourth
Amendment. In Count Two, Kaminsky asserts retaliation claims against Defendant Schriro
under the Second Amendment and Article First, Section 15 of the Connecticut Constitution. In
Count Three, Kaminsky asserts retaliation claims against Defendant Schriro under the First
Amendment and Article First, Section 10 of the Connecticut Constitution.
Defendants D’Alessandro, Imbimbo, Mattson, Musial, and Schriro (the “State
Defendants”) have filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (ECF
No. 40.) The State Defendants argue that (1) this Court lacks jurisdiction over all claims against
them in their official capacities, (2) this Court should abstain from addressing Kaminsky’s suit in
light of a parallel state action, (3) Kaminsky fails to state a claim of retaliation under the First
and Second Amendments and the Connecticut Constitution, and (4) Kaminsky fails to state a
claim in Count One against Defendant D’Alessandro under the theory of supervisory liability.
For the reasons explained below, the State Defendants’ motion to dismiss is granted in
part and denied in part. As to Count One, the claims against the State Defendants in their official
capacities are dismissed because they are barred by the Eleventh Amendment and, to the extent
they seek injunctive relief, the request for injunctive relief is moot or the Plaintiff lacks standing
to seek such relief. The portion of Count Two asserting a retaliation claim under the Second
Amendment is dismissed because it fails to state a plausible claim for relief. I decline to assert
supplemental jurisdiction over the remaining portion of Count Two, asserting a retaliation claim
under Article First, Section 15 of the Connecticut Constitution, because it involves a novel and
complex question of state law. As to Count Three, Kaminsky’s claim under the First
Amendment is dismissed because it fails to state a plausible claim for relief. Because the other
claim asserted in Count Three – asserting a violation of Article First, Section 10 of the
2
Connecticut Constitution – also involves a novel and complex question of state law, I decline to
assert supplemental jurisdiction over that claim as well. Finally, because Kaminsky does not
oppose the dismissal of his claim against Defendant D’Alessandro, it is dismissed.
Defendants Solenski and Flanagan (the “CPD Defendants”) have also filed a motion to
dismiss, in which they argue that Kaminsky fails to state a claim against the CPD Defendants in
their official capacities. (ECF No. 42.) Kaminsky does not oppose that motion. It is therefore
granted.
The only claim that survives is Kaminsky’s Fourth Amendment claim, asserted in Count
One, against Mattson, Musial, Imbimbo, Solenski, Flanagan, Dexter, Opdenbrouw, and Hicks in
their individual capacities.
I.
Factual Allegations
The Amended Complaint alleges the following facts. Prior to December 16, 2011,
Kaminsky was licensed by the Town of Coventry, the State of Connecticut, and the United States
government to carry and sell pistols and revolvers, possess ammunition and machine guns, and
deal firearms as a federal firearms licensee. (Am. Compl., ECF No. 35-1, at ¶ 2.) In December
2011, Kaminsky attempted to renew his three-year federal firearms license. (Id. at ¶ 3.) In
performing a background check, the federal government learned that Kaminsky had been
convicted of a felony on March 31, 1964. (Id.) This felony conviction had not appeared during
prior background checks conducted by any of the jurisdictions that had previously provided
Kaminsky a firearms license. (Id.)
Conn. Gen. Stat. § 53a-217 prohibits felons from possessing firearms; Kaminsky
therefore could not possess one legally. (Id. at ¶ 4.) On December 16, 2011, the Connecticut
State Police and Coventry Police Department were informed of Kaminsky’s felony. (Id.) In
3
response, CSP Officers Mattson and Imbimbo, along with CPD personnel – Chief Palmer, Lt.
Solenski, Sgt. Flanagan, and Officers Dexter, Opdenbrouw, and Hicks – searched Kaminsky’s
property without a warrant and seized 36 firearms and certain ammunition. (Id. at ¶ 25.) On
December 19, 2011, Officers Mattson and Musial returned to Kaminsky’s property and seized an
additional 23 firearms. (Id. at ¶ 38.)
Seeking to regain his firearms licenses, Kaminsky applied to the Board of Pardons and
Paroles (the “Board”) to be pardoned for his 1964 felony conviction. (Id. at ¶ 64.) He explained
to the Board that he had forgotten about his felony conviction when applying for his federal
firearms license. (Id. at ¶ 65.) The Board granted Kaminsky a full pardon on March 4, 2013,
effectively removing the felony from his criminal record. (Id. at ¶ 67.)
Kaminsky currently holds the following firearm permits: a permit to carry pistols and
revolvers issued by CSP on September 10, 2013 (id. at ¶ 68), a permit to sell pistols and
revolvers at retail issued to him by the Chief of Police for the Town of Coventry (id. at ¶ 69), and
a federal firearms license issued to him by the Bureau of Alcohol, Tobacco, Firearms, and
Explosives on February 1, 2014 (id. at ¶ 70).
After receiving the pardon, Kaminsky sought the return of the firearms and munitions
seized from his property on December 16 and 19, 2011. (Id. at ¶ 79.) On August 12, 2013, he
filed a “Petition for Declaratory Ruling” in Connecticut Superior Court, seeking, in effect, the
return of 30 seized firearms. (Id. at ¶ 10 (the “State Action”).) The Petition asked the court to
determine Kaminsky’s right to the return of his seized property – namely, six firearms currently
held by CSP and twenty-four firearms “of unknown location” – and to determine whether it was
lawful for the state to hold his property “in the absence of a criminal arrest, civil forfeiture
proceeding, or finding that the property was a nuisance or contraband.” (Id.)
4
On November 7, 2014, while the State Action was still pending, Defendant Schriro
threatened to contest Kaminski’s pardon, claiming that the Board failed to provide notice of its
decision to CSP, depriving it of an opportunity to be heard. (Id. at ¶ 11.)
II.
Legal Standard
“[A] claim is properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. A
plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the
evidence that it exists. . . . In resolving a motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) a district court may consider evidence outside the pleadings.” Morrison v.
Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citations and internal quotation
marks omitted).
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the allegations in the
complaint. In considering such a motion, I must take Kaminsky’s “factual allegations to be true
and [draw] all reasonable inferences in” his favor. Harris v. Mills, 572 F.3d 66, 71 (2d Cir.
2009). “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) (citation and internal quotation marks omitted). The plausibility standard
“does not impose a probability requirement at the pleading stage; it simply calls for enough fact
to raise a reasonable expectation that discovery will reveal evidence” supporting the claim for
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “Although a court must accept as
true all of the allegations contained in a complaint, this tenet is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory
5
statements, do not suffice.” Sikhs for Justice, Inc. v. Gandhi, 614 Fed. App’x 29, 30 (2d Cir.
2015) (citation and internal quotation marks omitted).
III.
Discussion
A. Rule 12(b)(1): Jurisdictional Challenges
i. Official Capacity Claims Against State Defendants
Federal courts lack jurisdiction over suits by citizens against a state. See, e.g., In re
Charter Oak Assocs., 361 F.3d 760, 765 (2d Cir. 2004) (“The Eleventh Amendment effectively
places suits by private parties against states outside the ambit of Article III of the Constitution.”).
This principle extends to a suit brought by a citizen against a state official in her official
capacity, which is “another way of pleading an action against the entity of which [the] officer is
an agent[; a]s long as the government entity receives notice and an opportunity to respond, an
official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”
Kentucky v. Graham, 473 U.S. 159, 165–166 (1985).
“An important exception to this general rule is set forth in Ex Parte Young, 209 U.S. 123
(1908), which holds that the Eleventh Amendment does not bar suits seeking prospective relief
against state officials acting in violation of federal law because such action is not considered an
action of the state.” Burnette v. Carothers, 192 F.3d 52, 57 n.3 (2d Cir. 1999). “[I]n determining
whether the Ex [P]arte Young doctrine applies to avoid an Eleventh Amendment bar to suit, a
court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.” Western
Mohegan Tribe & Nation v. Orange Cty., 395 F.3d 18, 21 (2d Cir. 2004) (internal quotation
marks omitted).
6
The State Defendants argue that “the plaintiff has made no claim for prospective
injunctive relief against any of these defendants,” and that “the plaintiff has sued state defendants
for money damages in both their official and individual capacities.” (State Defs.’ Mem., ECF
No. 41, at 15.) This argument, as Kaminsky points out, is only partially correct. With respect to
the claims in Count One against the state officers in their official capacities, Kaminsky seeks
damages resulting from past conduct that occurred on December 16 and 19, 2011. Such claims
clearly do not “allege an ongoing violation of federal law and seek relief properly characterized
as prospective.” Thus, the Court lacks subject matter jurisdiction over those claims.
Drawing all reasonable inferences in Kaminsky’s favor, as I must, I conclude that
Kaminsky seeks injunctive relief in Counts Two and Three. I conclude, however, that the
request for injunctive relief is moot or that Kaminsky lacks standing to seek such relief. The
prayer for relief includes no express request for injunctive relief. Nonetheless, in Count Two,
Kaminsky alleges that “Schriro’s unlawful retaliatory conduct caused Kaminsky to implement a
substantial change in his litigation strategy,” (id. at ¶ 131), and that “Kaminsky was forced to
engage counsel in order to file this District Court action . . . in order to request injunctive relief to
protect himself against the threatened unlawful retaliatory conduct which would have had
negative consequences for hi[s] pardon,” (id. at ¶ 132). Kaminsky makes the same claim in
Count Three using identical language. (Id. at ¶ 144–145.) While elliptical, these statements
suggest an intent to seek injunctive relief that would prevent Schriro or D’Alessandro2 from
further retaliating against Kaminsky.
2
It is unclear whether Kaminsky seeks injunctive relief against Defendant D’Alessandro. While he does
not name D’Alessandro as a defendant against whom he asserts the retaliation claims in Counts Two or
Three, the discussion in his memorandum on this point suggests that he fears retaliation from
D’Alessandro. (See Pl.’s Mem. Opp. at 9 (“The Pardons Board declined to reconsider Kaminsky’s
pardon, but he is not free from the prospect of future retaliation from Schriro or D’Alessandro.”
7
Nonetheless, Kaminsky has failed to demonstrate that there remains a live controversy
with respect to the challenge to his pardon allegedly threatened by Schriro or D’Alessandro.3
“When the issues in dispute between the parties are no longer live, a case becomes moot, and the
court—whether trial, appellate, or Supreme—loses jurisdiction” over that issue(s). Lillbask ex
rel. Mauclaire v. State of Conn. Dep’t of Educ., 397 F.3d 77, 84 (2d Cir. 2005) (citations and
internal quotation marks omitted). “Longstanding principles of mootness . . . prevent the
maintenance of suit [or claim] when there is no reasonable expectation that the wrong will be
repeated. . . . [It must be] absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
484 U.S. 49, 66 (1987). Mootness “occurs when the parties have no legally cognizable interest
or practical personal stake in the dispute.” ABN Amro Verzekeringen BV v. Geologistics Ams.,
Inc., 485 F.3d 85, 93 (2d Cir. 2007).
In his memorandum, Kaminsky admits that the Board, in response to Schriro’s letter
challenging Kaminsky’s pardon, declined to reconsider Kaminsky’s pardon. (See Mem. Opp.,
ECF No. 49, at 9 & n.7.) In fact, he attaches to his brief correspondence including (1) Schriro’s
February 3, 2015 letter to the Board of Pardons and Paroles requesting reconsideration of his
pardon, (2) an April 24, 2015 letter from his attorney to the Board of Pardons opposing Schriro’s
request, and (3) a May 7, 2015 letter from the Board’s chairperson stating that he had “found no
cause for a review to revoke the pardon of Mr. Kaminsky.” (ECF No. 49-3.) In other words,
(emphasis added) (footnote omitted)). Because it has no effect on the outcome, I assume that Kaminsky
seeks an injunction against D’Alessandro as well as Schriro in Counts Two and Three.
3
While the State Defendants do not raise this issue in their memorandum, the Court must raise issues of
mootness sua sponte. Muhammad v. City of New York Dep’t of Corrs., 126 F.3d 119, 122 (2d Cir. 1997)
(“Neither party has raised the issue of mootness . . . but because it is a jurisdictional question, we must
examine the issue sua sponte when it emerges from the record.”).
8
Schriro was unsuccessful in her alleged retaliation against Kaminsky, and Kaminsky has
identified no other recourse Schriro or D’Alessandro can take to challenge Kaminsky’s pardon.
Indeed, while I have construed the complaint to seek some form of injunctive relief, I note that it
nowhere identifies any actions Kaminsky is seeking to enjoin, other than “the threatened
unlawful retaliatory conduct which would have negative consequences for hi[s] pardon.”
(Compl. ¶ 132 (emphasis added).) There are no allegations and nothing in the record supporting
a “reasonable expectation” that either Schriro or D’Alessandro is likely to engage in any future
conduct that “would have negative consequences for his pardon.”
Kaminsky’s claim for injunctive relief against Schriro and D’Alessandro regarding
petitioning activity before the Board therefore has become moot. Kaminsky’s allegations,
combined with the evidence he has provided the Court, demonstrate that there is no reasonable
prospect that Schriro or D’Alessandro will retaliate against Kaminsky by challenging his pardon
because the Board has already considered and rejected that request. Because there are no
allegations providing any reason to believe that Schriro or D’Alessandro will again attempt to
petition the Board to reconsider its decision, Kaminsky’s claim requesting the Court to enjoin
Schriro or D’Alessandro from doing so is moot.
Kaminsky also argues that he is entitled to an injunction barring Schriro and
D’Alessandro from engaging in any retaliatory conduct because Kaminsky’s license must be
renewed every five years, and as a result, he will have to “deal[] with Schriro and D’Alessandro”
when he seeks renewal. (Pl.s’ Mem. Opp. at 9–10.) He does not identify what he fears Schriro
or D’Alessandro will do that will be “retaliatory” when he seeks to renew his license. Kaminsky
lacks standing to assert such a claim because his fear of encountering Schriro or D’Alessandro is
speculative – in that he cannot identify the future unlawful conduct he seeks to enjoin – and fails
9
to demonstrate any real or immediate danger of constitutional injury. “[An] equitable remedy is
unavailable absent a showing of irreparable injury, a requirement that cannot be met where there
is no showing of any real or immediate threat that the plaintiff will be wronged again—a
‘likelihood of substantial and immediate irreparable injury.’” City of Los Angeles v. Lyons, 461
U.S. 95, 111 (1983) (citation omitted)); see also Clapper v. Amnesty Int’l, USA, 133 S. Ct. 1138,
1147 (2013) (“To establish Article III standing, an injury must be . . . actual or imminent . . . .
Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its
purpose, which is to ensure that the alleged injury is not too speculative for Article III
purposes—that the injury is certainly impending.” (emphasis in original)); Marshall v. Switzer,
900 F. Supp. 604, 615–16 (N.D.N.Y. 1995) (“While the Court recognizes that it is likely that
plaintiff will have to purchase a new van at some time in the future, [which may lead to the
unlawful application of certain regulations against him,] that is an event far too remote in time to
compel injunctive relief in the present case.”). 4 It is not clear that Schriro, a political appointee,
will even be in office by the time Kaminsky applies to renew his license; but even assuming
Kaminsky will be forced to interact with Schriro or D’Alessandro to renew his license in the next
few years, Kaminsky has not suggested any manner in which those defendants would retaliate
against him, let alone that such conduct is “certainly impending.”
The Eleventh Amendment bars all of Kaminsky’s damages claims against the State
Defendants in their official capacities. Further, Kaminsky’s vague requests for injunctive relief
4
A plaintiff’s standing is determined at the time he files a complaint. Sugarman v. Vill. of Chester, 192
F. Supp. 2d 282, 288 (S.D.N.Y. 2002) (“The determination of whether standing exists . . . is made as of
the time the Complaint was filed.” (citation omitted)). Thus, although Kaminsky’s constitutional
objections to Schriro’s challenge to his pardon have now become moot, he did have standing to make
those objections when he filed suit in late 2014. As shown, the same cannot be said for his future,
speculative concerns about renewing his license.
10
against Schriro or D’Alessandro are, in one case, moot and, in the other, made without standing.
Those claims are dismissed.
ii. Abstention
Next, I consider the State Defendants’ request that this Court abstain from addressing
Kaminsky’s remaining claims under the Colorado River abstention doctrine. Abstention is “an
extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy
properly before it. Abdication of the obligation to decide cases can be justified under this
doctrine only in the exceptional circumstances where the order to the parties to repair to the state
court would clearly serve an important countervailing interest.” Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 813 (1976) (internal quotation marks
omitted). A federal district court may nonetheless dismiss a suit “for reasons of wise judicial
administration,” such as when a parallel state court action is concurrently pending. See id. at
818. Actions are “parallel” when “substantially the same parties are contemporaneously
litigating substantially the same issue in another forum.” Niagara Mohawk Power Corp. v.
Hudson River-Black River Regulating Dist., 673 F.3d 84, 100 (2d Cir. 2012).
Colorado River instructs district courts to consider six factors in determining whether to
dismiss a suit when a parallel state action is pending:
(1) the assumption of jurisdiction by either court over any res or property; (2) the
inconvenience of the federal forum; (3) the avoidance of piecemeal litigation; (4)
the order in which jurisdiction was obtained; (5) whether state or federal law
supplies the rule of decision; and (6) whether the state court proceedings will
adequately protect the rights of the party seeking to invoke federal jurisdiction.
Village of Westfield v. Welch’s, 170 F.3d 116, 121 (2d Cir. 1999). “[T]he facial neutrality of a
factor is a basis for retaining jurisdiction,” Woodford v. Cmty. Action Agency of Greene Cty.,
Inc., 239 F.3d 517, 522 (2d Cir. 2001), because abstention analysis is not meant “to find some
11
substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to
ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest of justifications,’ that can
suffice under Colorado River to justify the surrender of that jurisdiction.” Moses H. Cone
Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 25–26 (1983) (emphases
in original).
Abstention under Colorado River is not proper here. With respect to the first factor, the
Amended Complaint alleges the violation of Kaminsky’s civil rights and, as noted, seeks
damages and injunctive relief for those alleged violations. It does not seek the return of any
property or the assumption by this Court of jurisdiction over any res or property. The State
Action, by contrast, seeks a declaration of Kaminsky’s ownership rights with respect to certain
firearms. This federal civil rights action will in no way interfere with any declaration of Mr.
Kaminsky’s ownership rights in the State Action, as none of Mr. Kaminsky’s claims in this case
turn on whether he currently owns the firearms and has a right to their return. While his
ownership rights in the firearms at the time of the alleged search and seizure may be relevant to
his Fourth Amendment claim, his current ownership rights – especially following his pardon –
are of no import in this case. In short, the dispute regarding the ownership of the firearms in the
State Action is distinct from his claims here that the defendants violated his constitutional rights.
Because “the absence of a res points toward exercise of federal jurisdiction,” Woodford, 239
F.3d at 522 (internal quotation marks omitted), this factors weighs against abstention.
Second, neither forum presents any particular inconvenience to the parties. A forum is
inconvenient when it is “oppressive and vexatious to the defendant[s,] . . . out of all proportion to
the plaintiff’s convenience, or . . . inappropriate because of considerations affecting the court’s
own administrative and legal problems.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981)
12
(internal quotation marks omitted). The State Defendants argue that “[c]ontinuation of this case
in the federal forum is inconvenient because the issues raised herein cannot be fully resolved
without resolution of the ownership issues currently pending before the state court.” (State
Defs.’ Mem., at 18.) As discussed above, the claims in this suit do not rely on any ownership
issue that may be litigated in the State Action. Further, the State Defendants’ argument in this
respect does not speak to this factor, but rather concerns the third and fourth Colorado River
factors, discuss below. As Kaminsky argues, the federal forum is no more or less convenient
than the state forum because “the travel for any witness would be substantially the same.” (Pl.’s
Mem. Opp., ECF No. 49, at 12.) “[W]here the federal court is just as convenient as the state
court, that factor favors retention of the case in federal court.” Woodford, 239 F.3d at 523
(internal quotation marks omitted).
The third factor – the desirability of avoiding piecemeal litigation – also weighs against
abstention. The claims asserted in this action and the State Action are distinct and present
different issues. As Kaminsky argues, “[t]he ownership of the firearms at issue is separate and
distinct from violations of the Second, Fourth, and Fourteenth Amendments raised in [this
Court].” (Pl.’s Mem. Opp., at 11.) Because the State Action and this action are different and
independent of one another, litigating these suits separately does not raise a concern regarding
piecemeal litigation. The scenario envisioned by Colorado River “involve[s] lawsuits that pose[]
a risk of inconsistent outcomes not preventable by principles of res judicata and collateral
estoppel.” Woodford, 239 F.3d at 524. No such risk exists here. The State Defendants’
argument that “all of the claims made in the federal lawsuit could have been filed, and
adjudicated, in the prior pending state lawsuit” is irrelevant to this analysis. (State Defs.’ Mem.
13
at 18.) Instead, what matters is whether judgment in one action alters the legal basis for a claim
made in the other action. Again, this case presents no such scenario.
The fourth factor examines the order in which the cases were filed. In considering this
factor, courts should look not only to which complaint was filed first, but the stage of litigation at
which each case stands. Woodford, 239 F.3d at 524–25 (“Although the district court found that
the state complaints preceded the federal complaints and that discovery in the federal actions had
not yet commenced, it made no finding that the state actions had progressed.”). The State Action
began almost six months prior to this action. (State Defs.’ Mem., at 18.) Neither party, however,
has specified the current status of the State Action. Thus, while the State Action was filed first,
the Court lacks sufficient information to give this factor any significant weight in favor of
abstention.
The fifth factor – the source of law supplying the rule of decision – weighs against
abstention. The Defendants argue, “[w]hile issues of federal constitutional law have been raised,
it is state law which will supply the answers with regard to whom the surrendered firearms
rightfully belong.” (Id.) As stated, however, Kaminsky’s claims in this Court in no way rely on
the ownership issue being litigated in the State Action. Rather, this action involves almost
exclusively federal claims. See Moses H. Cone Mem. Hosp., 460 U.S. at 26 (“Although in some
rare circumstances the presence of state-law issues may weigh in favor of [abstention], the
presence of federal-law issues must always be a major consideration weighing against
surrender.” (citation omitted)).
Finally, I consider whether the State Action will adequately protect the rights of the party
seeking federal court jurisdiction. The State Defendants argue that “[t]here is no reason why the
plaintiff’s rights, both state and federal, cannot be protected by the Connecticut Superior Courts.”
14
(State Defs.’ Mem., at 18.) The fact that Kaminsky can raise his constitutional claims in state
court, however, holds little weight with respect to this factor: given the fact that state courts
possess general jurisdiction, if a plaintiff’s ability to raise federal claims in state court supported
abstention, this factor would point towards abstention in every case, making it the rule rather
than the “extraordinary and narrow exception,” Colorado River, 424 U.S. at 813, it is supposed
to be. Instead, this factor acts as a backstop to prevent abstention in the scenario in which the
other factors favor it. For example, if the state court could not provide the same relief to plaintiff
that would otherwise be available in federal court, this factor would neutralize other factors
weighing in favor of abstention. See Woodford, 239 F.3d at 525.
In sum, all but one of the Colorado River factors weigh against abstention, and that single
factor holds very little weight. To the extent that State Defendants rely on abstention to argue in
favor of dismissal, their motion is denied.
B. Rule 12(b)(6): Whether Kaminsky Has Stated A Plausible Claim for Relief in
Counts Two and Three
i. Count Two: Second Amendment Retaliation
In Count Two, Kaminsky claims that Schriro violated his rights under the Second
Amendment by retaliating against Kaminsky in response to his filing of the State Action. The
State Defendants argue that Kaminsky has failed to state a claim of a violation of the Second
Amendment because, even if Schriro’s actions were retaliatory, Kaminsky was not actually
asserting a right protected by the Second Amendment in the State Action. The Second
Amendment protects an “individual right to possess and carry weapons in case of confrontation.”
District of Columbia v. Heller, 554 U.S. 570, 592 (2008); see also McDonald v. Chicago, 130 S.
Ct. 3020, 3026 (2010) (incorporating the same right against the states). But “[t]he case law that
exists . . . indicates that the right to bear arms is not a right to hold some particular gun.” Vaher
15
v. Town of Orangetown, N.Y., 916 F. Supp. 2d 404, 429 (S.D.N.Y. 2013) (internal quotation
marks omitted; citing cases). In other words, the Second Amendment right to possess firearms is
implicated only when an individual is left unable to possess firearms at all. Id. at 430
(dismissing plaintiff’s Second Amendment claim because “there is no allegation that
Defendants’ actions have affected Plaintiff’s ability to retain or acquire other firearms or
ammunition, and no law has been cited that infringes on Plaintiff’s right to obtain other
firearms”). Thus, the State Defendants argue, no unconstitutional retaliation occurred with
respect to Kaminsky’s Second Amendment rights because Kaminsky was not exercising a right
under the Second Amendment by bringing the State Action to recover the particular firearms
taken from his home in 2011.
Kaminsky responds that the State Action represents more than just an assertion of
ownership of “certain guns.” Instead, he argues, “Schriro’s letter to [the] Pardon’s Board was an
attack on Kaminsky’s Second [A]mendment rights initiated after he attempted to resolve the
issue of the firearms in the Connecticut Superior Court by filing a declaratory judgment action
on August 6, 2014.” (Pl.’s Mem. Opp. at 20.) This argument is unconvincing. In order to allege
adequately that Schriro retaliated against him because he asserted a constitutional right,
Kaminsky must first allege facts showing that he was exercising a right that the Constitution
actually protects. Cf. ACLU of Md., Inc. v. Wicomico Cty, Md., 999 F.2d 780, 785 (4th Cir.
1993) (per curiam) (“A plaintiff alleging that government officials retaliated against her in
violation of her constitutional rights must demonstrate, inter alia, that she suffered some
adversity in response to her exercise of protected rights.” (emphasis added)). The Amended
Complaint fails in this respect because it does not allege facts suggesting that Kaminsky was
exercising his Second Amendment rights in filing the State Action.
16
In fact, Kaminsky concedes that his right to possess firearms was already vindicated
when the Town of Coventry and the State of Connecticut reissued his firearms licenses. (See
Pl.’s Mem. Opp. at 21–22 (“The Coventry Police Department and DESPP already made a
determination that Kaminsky was a suitable person to ‘. . . purchase, carry, possess, transfer, and
sell all legal firearms in the State of Connecticut[]’ and then issued him a permit to carry pistols
or revolvers.” (footnote omitted)). Indeed, the amended complaint alleges that federal, state, and
local authorities – including the DESPP (through its division, the Connecticut State Police) –
issued new firearms licenses to Kaminsky before he filed the State Action in August 2014 and
before Schriro threatened to seek reconsideration of his pardon in November 2014. Am. Compl.
¶’s 68-70 (alleging that Kaminsky received permit from [Connecticut State Police, a division of
DESPP] to carry pistols and revolvers on September 10, 2013, “currently holds” permit to sell
pistols and revolvers at retail from Town of Coventry, and received federal firearms license on
February 1, 2014); id. ¶ 136 (Kaminsky filed State Action on August 12, 2014);5 ¶ 11 (Schriro
threatened to contest Kaminsky’s pardon on November 7, 2014). In other words, according to
the Complaint, Kaminsky’s right to possess firearms was fully restored well before he filed the
State Action.
It appears, then, that the State Action was not an effort to regain the right to possess
firearms generally, but rather to re-possess certain firearms and ammunition that were seized
from his property. Because the Second Amendment is not implicated by that issue, Schriro’s
5
Although the Amended Complaint also alleges that the State Action was filed on August 12, 2013 (Am.
Compl. ¶ 10), that is an error. The state court docket indicates that the State Action was actually filed on
August 6, 2014, and that it is dated July 24, 2014 – several months after Kaminsky received his firearms
licenses. See http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=TTDCV146008
362S (last visited on June 18, 2016); see also http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentI
nquiry.aspx?DocumentNo=7909481. This Court may take judicial notice of the filing date of the State
Action. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (docket sheets are public
records of which the court may take judicial notice).
17
alleged threat in response to the filing of the State Action could not constitute retaliation in
violation of the Second Amendment, to the extent such a cause of action exists. 6
Kaminsky also cites Schriro’s letter to the Connecticut Board of Pardons and Paroles, in
which she “formally request[ed] that the Board of Pardons review the pardon issued to Mr.
Kaminsky, along with the attached information, in order to determine if the pardon should stand
as is, be revoked, or have a condition of no firearms added.” (Id. at 22 (emphasis in original).)
This quotation also fails to resolve the flaw in Kaminsky’s Second Amendment retaliation claim
identified above, i.e., that the filing of the State Action was not an exercise of Second
Amendment rights. If Schriro’s actions had resulted in Kaminsky’s inability to possess any
firearms, that result might have implicated Kaminsky’s rights under the Second Amendment and
might have provided grounds for a claim of the direct violation of a constitutional right. 7 But
such an outcome would not have provided grounds for a retaliation claim. The fundamental
inquiry in a retaliation claim is whether the claimant was punished for the prior exercise of a
constitutional right; although the punishment itself may implicate constitutional protections, it
does not amount to unconstitutional retaliation unless the prior conduct targeted by the
punishment was itself constitutionally protected. Because the filing of the State Action was not
6
I have been unable to find any case law recognizing a claim of retaliation arising under the Second
Amendment. The cases that Kaminsky cites in support of this claim involve exclusively First
Amendment retaliation claims. (See Pl.’s Mem. Opp. at 22–23 (citing, inter alia, Dougherty v. Town of
N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83 (2002) (addressing a cooperative hosing unit share
owners’ First Amendment retaliation claim); Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.
2008) (addressing a former community center employee’s First Amendment retaliation claim); Spear v.
Town of W. Hartford, 954 F.2d 63 (2d Cir. 1992) (citizen asserting that the town’s RICO suit against him
violated his First Amendment rights).) Nonetheless, I need not decide whether the Second Amendment
independently protects against retaliation in this context, because even if it does, Kaminsky has failed to
plead facts that actually invoke this protection.
7
It also might not have. The Supreme Court has suggested that the Second Amendment does not prohibit
well-established limitations on the rights it protects, including “longstanding prohibitions on the
possession of firearms by felons.” Heller, 554 U.S. at 626.
18
an exercise of Kaminsky’s Second Amendment rights, Kaminsky’s claim for retaliation under
the Second Amendment fails. As a result, that portion of Count Two is dismissed.
ii. Count Two: Connecticut Constitution, Article One, Section 15
Retaliation
In Count Two, Kaminsky also asserts a retaliation claim under Article One, Section 15 of
the Connecticut Constitution. Article One, Section Fifteen of the Connecticut Constitution
provides that “[e]very citizen has a right to bear arms in defense of himself and the state.” Conn.
Const. art. I, § 15. In their motion to dismiss, the State Defendants argue that this Court should
decline to assert supplemental jurisdiction over this claim because it “raises a novel or complex
issue of State law.” 28 U.S.C. § 1367(c)(1). This claim presents a novel or complex issue of
state law, they argue, because neither the Connecticut Supreme Court nor the Connecticut
Appellate Court has recognized a private right of action under Article 1, Section 15 of the
Connecticut Constitution.
Kaminsky responds that he is not “asking the [C]ourt to recognize a private right of
action,” but rather is “asking the [C]ourt to find he has a right to be free from government
retaliation for asserting his right to bear arms under Article First, Section Fifteen.” (Pl.’s Mem.
Opp. 28–29.) While his argument is far from a model of clarity, Kaminsky seems to assert that
Schriro’s allegedly retaliatory actions amounted to a violation of his right to bear arms under
Article First, Section 15, because it restricted that right without providing due process:
Kelley Prop. Dev. Inc. v. Town of Lebanon, 226 Conn. 314, 321–22 (1993) holds
that Connecticut adopts the Second Circuit Court of Appeals’ “clear entitlement”
test as a guide to determining whether a civil rights claimant in a land regulation
case has stated a due process claim under the federal constitution.
...
The Connecticut Supreme Court holds Article First, Section Fifteen to be an
established, constitutionally protected interest, “The constitutional right to bear
19
arms would be illusory, of course, if it could be abrogated entirely on the basis of
a mere rational reason for restricting legislation.” Benjamin v. Bailey, 234 Conn.
455, 469 (1995)[. Benjamin and] Kuck [v. Danaher, 600 F.3d 159 (2d Cir. 2010)]
maintain[ that] it is clearly established and valued . . . .
(Pl.’s Mem. Opp. at 29–30.) Nowhere in the Amended Complaint, however, does Kaminsky
assert a due process violation or even mention due process. Further, the Amended Complaint’s
formatting indicates that Kaminsky’s claim does attempt to assert a private right of action arising
from Article First, Section 15 of the Connecticut Constitution: Count Two’s heading reads
“Second and Fourteenth Amendment to the United States Constitution; Retaliation; 42 U.S.C. §§
1983, 1988 and Connecticut Constitution, Art. 1, § 15 Against CSP Defendant[] Schriro.” (Am.
Compl. at 19.) The placement of Article First, Section 15 next to the mention of Section 1983 –
a private cause of action – suggests that Kaminsky seeks to assert a cause of action under that
section of the Connecticut Constitution. Because Section 1983 provides a cause of action for
violations of federal law only, for Kaminsky to state a claim of violation of Article First, Section
15, that provision must provide him with a private cause of action to assert his claim.
Under 28 U.S.C. § 1367(c)(1), a “district court may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the claim raises a novel or complex issue of State law.” For
the same reasons cogently identified by Judge Bryant in Doutel v. City of Norwalk, the question
of whether Article First, Section 15 provides citizens with a private cause of action presents a
novel and complex issue of state law:
Neither the Connecticut appellate nor the Connecticut Supreme Court . . . has
opined as to whether Article 1, § 15 creates a private right of action. . . .
In Binette v. Sabo, 244 Conn. 23 (1998), the Connecticut Supreme Court
recognized a narrow cause of action for money damages under Article First, §§ 7
and 9 of the Connecticut constitution for illegal searches and seizures of private
residences by law enforcement officers acting without a warrant, drawing from
the federal equivalent of a Bivens action under the Fourth Amendment to the U.S.
Constitution. . . . In creating a private right of action under sections 7 and 9,
20
though, the Connecticut Supreme Court emphasized that its decision to recognize
a Bivens-type remedy in this case does not mean that a constitutional cause of
action exists for every violation of our state constitution. The court further
instructed that [w]hether to recognize a cause of action for alleged violations of
other state constitutional provisions in the future must be determined on a caseby-case basis. As in the present case, that determination will be based upon a
multifactor analysis. The factors to be considered include: the nature of the
constitutional provision at issue; the nature of the purported unconstitutional
conduct; the nature of the harm; separation of powers considerations and the other
factors articulated in Bivens and its progeny; the concerns expressed in Kelley
Property Dev., Inc. [v. Town of Lebanon, 226 Conn. 314 (Conn. 1993)]; and any
other pertinent factors brought to light by future litigation. Id. at 48.
Since Binette, Connecticut courts have rejected numerous constitutional torts
claims under various sections of the state constitution. . . .
Here, it is appropriate to decline supplemental jurisdiction where this Court would
be forced to interpret Connecticut constitutional law in the absence of any state
court precedent regarding whether a private right of action exists under Article
First, section 15.
No. 3:11-cv-1164 (VLB), 2013 WL 3353977, at *26–27 (D. Conn. July 3, 2013) (citations and
internal quotation marks omitted). Like the plaintiff in Doutel, Kaminsky fails to identify any
controlling case law recognizing a private cause of action under Article First, Section 15 of the
Connecticut Constitution. Because recognizing such a private cause of action would require this
Court to “wade into the uncharted waters of private rights of action under the Connecticut
constitution,” id. at *27, I decline to assert supplemental jurisdiction over that portion of Count
Two.
iii. Count Three: First Amendment Retaliation
In Count Three, Kaminsky asserts that Schriro’s conduct, which Kaminsky alleges was a
response to his filing of the State Action, amounted to retaliation in violation of the First
Amendment. The elements of a First Amendment retaliation claim depend on the factual context
of the claim; the Second Circuit has fashioned differing elements when the plaintiff has been a
prisoner, a public employee, and a private citizen. See, e.g., Zherka v. Amicone, 634 F.3d 642,
21
644 (2d Cir. 2011) (“We have described the elements of a First Amendment retaliation claim in
several ways, depending on the factual context. For example, public employees must show
adverse employment action. For their part, inmates must show retaliatory conduct that would
deter a similarly situated individual of ordinary firmness from exercising . . . constitutional
rights.” (citations and internal quotation marks omitted)).
As a private citizen suing a public official for retaliation, Kaminsky must allege facts
showing: “(1) he has an interest protected by the First Amendment; (2) defendant[’s] actions
were motivated or substantially caused by his exercise of that right; and (3) defendant[’s] actions
effectively chilled the exercise of his First Amendment right.” Curley v. Vill. Of Suffern, 268
F.3d 65, 73 (2d Cir. 2001). The parties do not dispute that by filing the State Action to seek the
return of the firearms and ammunition, Kaminsky was engaging in activity protected by the First
Amendment. See, e.g., Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir. 1994) (“The
rights to complain to public officials and to seek administrative and judicial relief are protected
by the First Amendment.”).
The State Defendants argue that this claim should be dismissed because Kaminsky’s
allegations fail to satisfy the third element, which requires “actual chilling” of his exercise of his
First Amendment right. The actual chilling requirement originates from the necessary elements
of a Section 1983 claim as well as a basic tenet of standing:
To state a claim under Section 1983, a plaintiff must allege facts indicating that
some official action has caused the plaintiff to be deprived of his or her
constitutional rights—in other words, there is an injury requirement to state the
claim. In [a case in which a private citizen asserts a retaliation claim against a
public official, the plaintiff] need not show that she was silenced by [the
official’s] threatened [action]—the First Amendment protects the right to free
speech so far as to prohibit state action that merely has a chilling effect on speech.
However, to sustain her claim, [plaintiff] is required to show that the defendant’s
actions had some actual, non-speculative chilling effect.
22
Colombo v. O’Connell, 310 F.3d 115, 117 (2d Cir. 2002). Thus, to state a claim, Kaminsky must
either allege facts showing that Schriro “silenced him,” Williams, 535 F.3d at 78, or some actual
chilling effect resulting from Schriro’s conduct that is neither “conclusory” nor “speculative,”
Spear, 954 F.2d at 67. The allegations asserted in the Amended Complaint do not support the
former: none suggest that Kaminsky has been in any way “silenced.” The question I must
address, then, is whether Kaminsky’s allegations identify a non-conclusory, non-speculative
chilling of his First Amendment right to seek judicial relief. I find that they do not.
Kaminsky cites his filing of this lawsuit as evidence that Schriro’s conduct had a chilling
effect on his First Amendment right: “Kaminsky was chilled enough to file the District Court
action asking for injunctive relief to prevent further retaliation.” (Pl.’s Mem. Opp. at 25.) This
cannot be enough to satisfy the actual chilling element of a First Amendment retaliation claim.
If it was, every First Amendment retaliation claim would inherently satisfy the actual chilling
requirement. In support of this argument, Kaminsky cites a portion of the Second Circuit’s
discussion in Gill, in which the court states, “the test . . . is not whether plaintiff . . . himself was
chilled[;] if that were the standard, no plaintiff likely would prevail, for the very commencement
of a lawsuit could be used by defendants to argue that the plaintiff was not chilled.” 389 F.3d at
383–84 (quoting Walker v. Pataro, 99 Civ. 4607 (GBD) (AJP), 2002 WL 664040, at *9
(S.D.N.Y. Apr. 23, 2002)). Yet this statement, which Kaminsky takes out of context, establishes
only the mirror-image of the flaw in his argument: just as the fact that the plaintiff filed a
retaliation claim cannot by itself satisfy the actual chilling requirement, the fact that he has done
so cannot by itself demonstrate that he was not chilled. See id. (“[W]hile subjective chilling is a
general requirement, where a plaintiff alleges that the protected conduct at issue is the prior filing
of a grievance or lawsuit against the defendant, it would be unfair in the extreme to rule that
23
plaintiff’s bringing of the subsequent claim in itself defeated his claim of retaliation.” (emphasis
in original)). In other words, the fact that Kaminsky has filed this lawsuit does not in itself
defeat his claim that he has been chilled, but it also does not itself satisfy the element of actual
chilling.
The complaint asserts no facts suggesting that Kaminsky was actually chilled by
Schriro’s filing of the reconsideration petition because he has alleged “no change in his behavior,
[which] quite plainly show[s] no chilling of his First Amendment” rights. Curley, 268 F.3d at
73. He does not allege that he withdrew his claim in the State Action, nor does he allege that he
decided against taking any specific action he would have taken had Schriro not filed the
reconsideration petition. He does allege that Schriro’s action “caused [him] to implement a
substantial change in his litigation strategy,” (Am. Compl. ¶ 144), but the only change he
specifies – in the following paragraph – is the filing of this lawsuit. (Id. ¶ 145 (“Kaminsky was
forced to engage counsel in order to file this District Court action separate and distinct from the
Petition in order to request injunctive relief. . . .”). As noted, that is insufficient to satisfy the
actual chilling element.
In this sense, Kaminsky’s claim is analogous to those in Singer, Curley, and Spear. In
Singer, the plaintiff brought a retaliation claim after he was arrested and charged with petit
larceny for taking $11.55 worth of sandwich materials from a shop without paying. Singer
claimed that he had received consent from the store clerk to take the materials and pay later, and
that his prosecution was the product of an effort to punish him for publishing a newspaper
critical of local officials and thus constituted retaliation in violation of the First Amendment.
The court affirmed dismissal of that claim in part because he had “failed to allege with sufficient
particularity any actual chilling of his speech, or of his participation in the political process,” and
24
adding, “[a]s a matter of fact, Singer continued to publish his newspaper.” 63 F.3d at 120. In
Curley, the plaintiff similarly argued that his arrest after a barroom brawl was retaliation in
response to his accusing local officials of improper conduct. The Second Circuit affirmed
summary judgment against Curley in part because he had alleged no actual chilling: “despite
plaintiff’s charge that he was arrested in retaliation for his comments made during [his mayoral
candidacy], he continued his [later] campaign for village trustee even after the arrest and ran
again for village public office” the following year. 268 F.3d at 73. Finally, in Spear, the Town
of West Hartford brought a RICO suit against Spear and others seeking to enjoin certain antiabortion protests. Spear subsequently asserted a First Amendment retaliation claim against the
Town, asserting that the RICO lawsuit was retaliation for his publication of editorials critical of
the Town’s handling of the protests. Spear alleged in his complaint that the retaliation caused
“fear, mental anguish and worry over any potential legal liability . . . , thereby causing a chilling
effect.” 954 F.2d at 65. The Second Circuit affirmed the dismissal of the retaliation claim
because he had not alleged facts suggesting actual chilling: “The complaint offer[s] nothing
beyond a bare assertion that the [RICO] lawsuit caused a chilling effect . . . Spear did not allege
that he had declined to write further anti-abortion editorials, nor did he claim that he had toned
down his writing on the subject. He did not allege that he had changed even one word of his
writing.” Id. at 67 (internal quotation marks omitted). Just as Singer, Curley, and Spear did not
allege actual chilling by failing to identify a change in their behavior, Kaminsky has not alleged
facts suggesting that, as a result of Schriro’s petition to the Board, he altered his behavior. As a
result, he has failed to allege actual chilling.
Kaminsky also contends that Second Circuit case law does not always require actual
chilling. While he is correct that, in certain cases, the plaintiff need not allege actual chilling,
25
those are cases in which the plaintiff has alleged an independent injury resulting from a
defendant’s retaliatory conduct. Actual chilling is a necessary element of a retaliation claim
when, like here, chilling is the only cognizable injury the plaintiff alleges. See Gill, 389 F.3d at
382 (noting that actual chilling has been recognized as an element of a retaliation claim only
when “the only injury alleged by the plaintiff is, seemingly, the putative chilling itself . . . . On
this view, defendants are correct that a plaintiff asserting First Amendment retaliation must
allege some sort of harm, but they are wrong that this harm must, in all cases, be a chilling of
speech” (emphasis in original)); Zherka, 634 F.3d at 645 (“[P]rivate citizens claiming retaliation
for their criticism of public officials have been required to show that they suffered an actual chill
in their speech as a result. However, in limited contexts, other forms of harm have been accepted
in place of this actual chilling requirement.” (citations and internal quotation marks omitted));
LaVertu v. Town of Huntington, 2014 WL 6682262, at *6 (E.D.N.Y. Nov. 24, 2014) (“Where
private citizens allege retaliation for criticism of public officials . . . plaintiffs have been required
to allege an ‘actual chill’ in their speech as a result of the defendants’ conduct. However, recent
cases have concluded that the chilling requirement applies only where no other harm is alleged.”
(citation omitted)). The cases that Kaminsky cites in support of his argument confirm this point.
In Tomlins v. Vill. Of Wappinger Falls Zoning Bd. of Appeals, 812 F. Supp. 2d 357 (S.D.N.Y.
2011), the plaintiff’s allegations of retaliatory denials of a building permit and zoning variance
constituted sufficient injury to support a retaliation claim. 812 F. Supp. at 371 n. 17. Similarly,
in Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d 147 (2d Cir. 2006), the plaintiffs claimed
that the defendants revoked their permit to operate a nursing home in retaliation for their speech
– plainly an independent injury that dispensed with the need to show actual chilling. Finally, the
courts in Gagliardi and Puckett v. City of Glen Cove, 631 F. Supp. 2d 226 (E.D.N.Y. 2009), did
26
not require the plaintiffs to show (or allege) actual chilling because the defendants’ approval of
developments and activities on lots adjoining the plaintiffs’ properties had a detrimental effect on
those properties.
The only injury Kaminsky identifies in his memorandum is an assertion that Schriro’s
letter to the Board caused a delay of the State Action: “[t]he plaintiff’s assertion that the actions
of Defendant Schriro delayed the recovery of his property and that her action[s] were retaliatory
is precisely that, a conclusion supported by facts set forth to establish the same.” (Pl.’s Mem.
Opp. at 26.) The only allegation asserted in the Amended Complaint that supports this claim
states:
Schriro’s unlawful retaliatory conduct was the proximate cause of the injury,
damages, loss, expenses and harm sustained by Kaminsky in that the delay caused
in the state court Petition proceeding caused by her threatened unlawful
retaliatory conduct harmed his ability to recover his property in the state court
Petition, and further caused him grave stress, fear, court costs and attorney’s fees.
(Am. Compl. ¶ 146; see also id. at ¶ 133 (identical).) This assertion, alone, is both conclusory
and speculative. Kaminsky does not allege any facts suggesting how Schriro’s conduct caused a
delay in the State Action: he does not allege facts suggesting that the state court judge was even
aware of Schriro’s letter, let alone that the judge stayed the proceedings or otherwise took action
to delay a determination of the State Action until the Board acted on Schriro’s letter. In the
absence of any non-speculative, non-conclusory allegations suggesting that Kaminsky was
harmed by Schriro’s conduct – in the form of actual chilling or any other injury – Kaminsky’s
allegations fail to state a claim for First Amendment retaliation.8
8
In any event, it appears that Kaminsky’s claim would likely fail for a different reason: although I do not
decide this issue, I note that qualified immunity would likely shield Schriro from liability for Kaminsky’s
First Amendment retaliation claim. The complaint alleges that Schriro violated Kaminsky’s First
Amendment right by, herself, engaging in activity that appears to be First-Amendment-protected
petitioning activity. Specifically, she sent a letter to the Board of Pardons and Paroles – an independent
state agency not under her control – asking it to reconsider the pardon granted to Kaminsky. Because
27
Because the facts alleged by Kaminsky do not raise a plausible claim against Schriro for
retaliation in violation of the First Amendment, the claim is dismissed.
iv. Count Three: Connecticut Constitution, Article One, Section 10
Retaliation
While Schriro does not move to dismiss Kaminsky’s claim of retaliation under Article
One, Section 10 of the Connecticut Constitution, I dismiss it for the same reasons discussed with
respect to Kaminsky’s Article One, Section 15 claim.
Article First, Section 10 states, “All courts shall be open, and every person, for an injury
done to him in his person, property or reputation, shall have remedy by due course of law, and
right and justice administered without sale, denial or delay.” Kaminsky claims that Schriro
violated this provision by retaliating against him for filing the State Action. In Binette, the
Connecticut Supreme Court rejected the plaintiff’s argument that Section 10 provides a private
cause of action to enforce common law rights predating the Connecticut Constitution’s
establishment in 1818. See 244 Conn. at 31–32 (“[T]he doctrine that, under article first, § 10, the
legislature may not diminish pre-1818 common-law or statutory rights without enacting
reasonable alternatives . . . does not necessarily imply, as the plaintiffs and amicus assume, that
article first, § 10, embodies a private cause of action for pre-1818 ‘fundamental’ common-law
rights.” (citation omitted)). While the Binette court did not explicitly decide whether Section 10
provided an implied private right of action for the violation of its own terms, I have not been able
to find a Connecticut case holding that it does – and Kaminsky cites no such case. This claim
therefore “raises a novel or complex issue of State law,” 28 U.S.C. § 1367(c)(1), because in
such conduct is protected by the First Amendment, qualified immunity would likely prevent Kaminsky
from obtaining damages against Schriro. See Lynch v. Ackley, 811 F.3d 569, 580–82 (2d Cir. 2016)
(defendant was entitled to qualified immunity on First Amendment retaliation claim in part because she
was exercising her own First Amendment rights).
28
order to recognize Kaminsky’s claim, this Court would have to find, in the absence of guidance
from the Connecticut Supreme Court, an implied cause of action under the Connecticut
Constitution. For that reason, I decline to exercise supplemental jurisdiction over the Article
First, Section 10 claim asserted in Count Three.
C. Supervisory Liability Claim Against Defendant D’Alessandro
In his response memorandum, Kaminsky states that he “does not oppose the Motion to
Dismiss on the claim made regarding Defendant Sergeant Paolo D’Alessandro’s supervisory
liability.” (Pl.’s Mem. Opp., at 30.) The supervisory claim against Sergeant D’Alessandro is
therefore dismissed.
D. Official Capacity Claims Against Defendants Solenski and Flanagan
Defendants Solenski and Flanagan seek to dismiss Kaminsky’s claims against them in
their official capacities, arguing that the Amended Complaint alleges no conduct by the Town of
Coventry. Kaminsky does not oppose this motion. (ECF No. 50.) As a result, the claims against
Defendants Solenski and Flanagan in their official capacities are dismissed.
IV.
Conclusion
For the reasons stated above, Defendants’ motion to dismiss (ECF No. 40) is GRANTED
in part and DENIED in part. The claims asserted against the State Defendants in their official
capacities are DISMISSED, the portion of Count Two asserting a Second Amendment violation
is DISMISSED, the portion of Count Three asserting a violation of the First Amendment is
DISMISSED, the supervisory claim against Defendant D’Alessandro is DISMISSED, and I
decline to assert supplemental jurisdiction over, and therefore dismiss without prejudice, the
remaining portions of Counts Two (asserting a violation of Article First, Section 15 of the
Connecticut Constitution), and Three (asserting a violation of Article First, Section 10 of the
29
Connecticut Constitution). Defendants Solenski’s and Flanagan’s motion to dismiss (ECF No.
42) is GRANTED and the claims against them in their official capacities are DISMISSED.
The sole remaining claim asserts a violation of the Fourth Amendment Mattson, Musial,
Imbimbo, Solenski, Flanagan, Dexter, Opdenbrouw, and Hicks in their individual capacities.
IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:
Hartford, Connecticut
June 21, 2016
30
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