Brown et al v. Dirga et al

Filing 107

MEMORANDUM OF CONFERENCE and RULING denying 94 Motion for Joinder; denying 95 Motion to Amend/Correct. See attached Memorandum and Ruling for details and deadlines. Signed by Judge Sarah A. L. Merriam on 10/11/2016. (Attachments: # 1 Exhibit Fed. R. Civ. P. 26, # 2 Exhibit Fed. R. Civ. P. 37). (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
FRANKLIN BROWN
:
:
v.
:
:
FREDRICK DIRGA
:
:
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Civil No. 3:15CV01086(JCH)

October 11, 2016

MEMORANDUM OF CONFERENCE AND RULING ON MOTIONS
On October 4, 2016, this Court held a telephonic Status
Conference on the record. Plaintiff Franklin Brown
(“plaintiff”), appearing pro se, and counsel for defendant,
Attorney Christopher A. Clark, participated in the conference.
The following summarizes the pertinent discussions held during
the October 4, 2016, conference.
I.

Plaintiff’s Motion to Amend the Complaint and Motion for
Joinder of Claims and Parties [Docs. ##94, 95]
Pending before the Court are plaintiff’s Motion for Leave

to File an Amended Complaint, and plaintiff’s Motion for Joinder
of Claims and Parties. [Docs. ##94, 95]. In both motions,
plaintiff seeks to amend his Complaint to add claims of: assault
and battery; false arrest; and section 1983 claims against
proposed new defendants Captain Patrick Howard, Chief William
McKenna, Captain Wallace, Lieutenant Davis, and the City of
Middletown. See Docs. ##94, 95. In support of his motions,
plaintiff contends that newly discovered evidence warrants the
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amendment and the addition of parties. See Doc. #94-1 at 1, 3-4;
Doc. #95 at 1. Plaintiff attaches police investigatory records
and an affidavit from witness Karen Rogala as exhibits in
support of his motion, but his motion does not discuss how these
materials constitute “new evidence,” when the information was
received, or how it supports his proposed new claims. See Docs.
##94, 95. Defendant opposes plaintiff’s motion, arguing, inter
alia, that plaintiff has failed to show good cause for filing
his motion beyond the deadline to amend the pleadings; that the
proposed amendments are futile; and that the amendments would be
prejudicial to defendant. See Doc. #97.
At the October 4, 2016, conference, plaintiff explained
that the newly acquired evidence was produced by defendant
during the course of discovery, and received by plaintiff on
February 22, 2016. Plaintiff contended that the records attached
to his “Motion for Joinder of Claims and Parties” [Doc. #94]
provide the “new evidence” necessitating the filing of an
amended complaint and supporting the proposed new claims. The
Court requested that plaintiff point to a particular piece of
“new evidence” and explain how it supports the new proposed
claims.
Plaintiff pointed to a record bearing Bates number BROWN
00089, and specifically to the paragraph in the middle of that
page under the title “Confidential Interview.” See Doc. #94-2 at
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12. This document is the report of an internal investigation
into plaintiff’s civilian complaint after his arrest; the claims
raised in the civilian complaint are similar to those asserted
in this federal case. The paragraph relied upon by plaintiff
contains a statement from a witness who asserts that plaintiff
sold crack to her, using Karen Rogala as an intermediary,
shortly before the arrest plaintiff challenges. The witness also
reports that a man attempted to get plaintiff to sell him crack
that night but plaintiff refused because he believed the man to
be a “snitch.” At the conference, plaintiff asserted that this
paragraph supports plaintiff’s assertion that defendant Dirga
did not observe him making a hand-to-hand transaction
immediately before his arrest, and thus that Dirga’s stated
basis for the arrest is false.
Plaintiff acknowledged at the conference that the
“new evidence” attached to his motion was produced by defendant
seven months before he filed the motions, but stated that he had
been unaware until recently that he could move to amend his
complaint. For the reasons set forth below, plaintiff’s motions
are DENIED.
A.

Legal Standard

Pursuant to Rule 15 of the Federal Rules of Civil
Procedure, a party may amend his pleading “only with the
opposing party’s written consent or the court’s leave. The court
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should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(a)(2). Rule 21 governs the addition of parties: “On motion
or on its own, the court may at any time, on just terms, add or
drop a party.” Fed. R. Civ. P. 21.
With respect to the interaction of Rules 15(a) and 21,
it has been held that Rule 15(a) generally governs the
amendment of complaints, but in the case of proposed
amendments where new defendants are to be added, Rule 21
governs. The perceived supremacy of Rule 21 is, however,
of no practical consequence, since it is generally held
that the standards governing motions to amend under Rule
15 apply with equal force to motions to add parties under
Rule 21.
Meyers v. Kishimoto, No. 3:14CV535(CSH), 2015 WL 4041438, at *3
(D. Conn. July 1, 2015) (quotation marks and internal citations
omitted).
In determining whether to grant leave to amend, the Supreme
Court has held:
If the underlying facts or circumstances relied upon by
a plaintiff may be a proper subject of relief, he ought
to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared reason
— such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance
of the amendment, futility of amendment, etc. — the leave
sought should, as the rules require, be ‘freely given.’
Foman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, where, as
here, a plaintiff moves for leave to amend his complaint to add
new claims and parties, a court will look to whether the
opposing party is unduly prejudiced, whether plaintiff has

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unduly delayed in seeking the proposed amendment, and whether
the proposed amendment would be futile. See, e.g., Jin v. Metro.
Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002) (“Leave to amend
should be freely granted, but the district court has the
discretion to deny leave if there is a good reason for it, such
as futility, bad faith, undue delay, or undue prejudice to the
opposing party.”(citing Foman, 371 U.S. at 182)). With these
factors in mind, the Court turns to plaintiff’s proposed Amended
Complaint.
B.

False Arrest

Plaintiff’s proposed Amended Complaint asserts a new claim
for false arrest. “Favorable termination is an element of a
section 1983 claim sounding in false imprisonment or false
arrest.” Miles v. City of Hartford, 445 F. App’x 379, 383 (2d
Cir. 2011). Further, a claim for false arrest may not succeed
where plaintiff has entered a guilty plea. See Maietta v. Artuz,
84 F.3d 100, 103 n.3 (2d Cir. 1996) (“We have also ruled that
... common law principles preclude a challenge to the validity
of an arrest after a guilty plea, for purposes of a civil suit
under 42 U.S.C. § 1983.” (citing Cameron v. Fogarty, 806 F.2d
380, 386-89 (2d Cir. 1986)). Here, plaintiff pled guilty to the
underlying crime and was convicted. See Doc. #97-9 at 3-4
(transcript of plaintiff’s deposition, in which plaintiff admits
to having pled guilty to the narcotics charge). The Court has
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reviewed the documents attached in support of plaintiff’s
motion. None of these records suggests that plaintiff’s
conviction has been invalidated or reversed. Thus, plaintiff
cannot maintain a section 1983 action based on false arrest. See
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see also Simmons
v. Simpson, No. 3:04CV2044(RNC), 2005 WL 2850078, at *1 (D.
Conn. Oct. 29, 2005). Accordingly, the Court finds that
amendment to permit the addition of a false arrest claim would
be futile.
C.

Individual Supervisory Defendants

Plaintiff also seeks to bring a section 1983 claim against
new individual defendants for their alleged failure to supervise
Officer Dirga, the sole defendant currently named in this
action. See Doc. #94 at 1, Doc. #95-2 at 3-4.
To establish that a municipality’s failure to train or
supervise constitutes deliberate indifference to the
constitutional rights of citizens, plaintiff must show
(1) that a policymaker knows ‘to a moral certainty’ that
her employees will confront a given situation; (2) that
the situation either presents that employee with a
difficult choice of the sort that training or
supervision will make less difficult or that there is a
history of employees mishandling the situation; and (3)
that the wrong choice by the city employee will
frequently cause the deprivation of a citizen’s
constitutional
rights.
Rodriguez v. City of New York, 649 F. Supp. 2d 301, 307
(S.D.N.Y. 2009) (quoting Walker v. City of New York, 974 F.2d
293, 297 (2d Cir. 1992)); see also Reynolds v. Guiliani, 506

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F.3d 183, 192 (2d Cir. 2007). Further, to state a claim under
section 1983, plaintiff must allege the personal involvement of
an individual defendant. See Costello v. City of Burlington, 632
F.3d 41, 48–49 (2d Cir. 2011) (citing Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994)).
The proposed Amended Complaint contains no allegations of
facts that would support a claim of failure to supervise under
section 1983, nor are there any allegations in the proposed
Amended Complaint that establish that the proposed new
individual defendants personally participated in any alleged
misconduct. “This defect is fatal to [plaintiff’s] claim under
42 U.S.C. § 1983.” Costello, 632 F.3d at 49. Accordingly, the
proposed amendment adding claims against Captain Howard, Chief
McKenna, Captain Wallace, and Lieutenant Davis would be futile
and is therefore denied.
D.

City of Middletown

Plaintiff also seeks to amend his complaint to allege a
section 1983 claim against the City of Middletown. Plaintiff
alleges that “[i]t was the policy and/or custom of the City of
Middletown to inadequately and improperly investigate citizen
complaints of police misconduct,” and “to inadequately supervise
and train its police officers[.]” Doc. #95-2 at 4. As the Court
has already noted, plaintiff must demonstrate that there is a
“direct causal link between a municipal policy or custom and the
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alleged constitutional deprivation.” City of Canton, Ohio v.
Harris, 489 U.S. 378, 385 (1989); see also Doc. #8 at 5.
Plaintiff, however, has not alleged any facts that support
these allegations. Further, plaintiff was unable to articulate
at the conference how any of the information contained in the
records attached to his motion suggests an unconstitutional
municipal policy or custom that would give rise to a section
1983 claim against the City of Middletown. As discussed above,
the portion of the report of the investigation into plaintiff’s
civilian complaint on which plaintiff focuses bears no relation
at all to supervision issues. It was prepared after the fact,
and contains no information suggesting that the supervision of
Officer Dirga prior to the arrest of plaintiff was improper.1
Accordingly, the Court finds that the addition of this claim
would be futile, and is denied.
E.

Assault and Battery

Finally, plaintiff seeks to add a claim for assault and
battery against defendant Dirga. Plaintiff is currently
proceeding with a claim against defendant Dirga in his
individual capacity for the use of excessive force in violation

In fact, the report appears thorough and comprehensive, and
establishes that other witnesses, including Ms. Rogala and a
third party, substantiated the fact that plaintiff had a
significant quantity of crack cocaine in his possession at the
time of his arrest, and the third party witness reported that
plaintiff was selling that crack cocaine. See Doc. #94-2.
1

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of plaintiff’s Fourth Amendment rights. At the conference,
defendant argued that the addition of a state claim for assault
and battery would require the reopening of plaintiff’s
deposition, additional interviews of witnesses and police
officers, and other discovery, as the proposed state law claim
has different elements and defenses than the existing federal
claim for excessive force. See, e.g., Conn. Gen. Stat. § 53a-22
(statutory authority for use of force in arrest); Brown v.
Robishaw, 922 A.2d 1086, 1092 (2007) (“[I]t is well established
that the defense of self-defense is available to a defendant
faced with the intentional torts of civil assault and
battery[.]”).
The Court agrees with defendant that the addition of this
claim, beyond the discovery deadline, would cause undue
prejudice to the defendant. “A court may deny a motion to amend
when the movant knew or should have known of the facts upon
which the amendment is based when the original pleading was
filed, particularly when the movant offers no excuse for the
delay. Moreover, when the amendment is sought after discovery
has been closed, prejudice may be found.” Ruotolo v. City of New
York, No. 03CV5045(SHS), 2006 WL 2372236, at *2 (S.D.N.Y. Aug.
16, 2006), aff’d, 514 F.3d 184 (2d Cir. 2008) (internal
citations and quotation marks omitted) (collecting cases); see
also St. John v. Arnista, No. 3:05CV120(WWE), 2007 WL 3355385,
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at *2 (D. Conn. Nov. 9, 2007) (“With respect to the request to
add claims ... the court concludes that the addition of those
claims would unnecessarily delay the litigation of this action
and also prejudice the defendant.” (citation omitted)).
F.

Undue Delay and Prejudice

The Court finds that all of the proposed amendments are
barred because there was undue delay in the plaintiff’s filing
of the request to amend, and permitting the complaint to be
amended at this late date would be unduly prejudicial to
defendant.
The deadline for the completion of fact discovery in this
matter was September 23, 2016, only four days after plaintiff
filed the instant motions. The evidence that plaintiff claims is
newly discovered was in fact produced by defendant and received
by plaintiff in February 2016, over seven months before the
motions were filed. Plaintiff also asserted during the
conference that an attorney appointed to represent him in a
state court matter had advised him in June that he should seek
to amend his complaint, and still he waited until September, as
discovery was closing. Plaintiff had ample time to review the
documents in his possession and move to add claims or parties
prior to the deadline for the close of discovery. He has offered
no persuasive reason for his lengthy delay in filing the motion
to amend.
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Furthermore, the “new evidence” received by plaintiff in
February does not support the proposed amendments. The affidavit
of Karen Rogala contains her report of the incident; plaintiff
has been in contact with Ms. Rogala throughout this litigation
and before it was filed, and thus has been well aware of her
version of events for years. The report summarizing the
investigation of the civilian complaint adds some interesting
detail to the events of the night in question, but no new
information that would support any of the new claims proposed by
plaintiff.
Permitting amendment of substantive claims and addition of
new parties at this late date, three years after the incident in
question, after the close of discovery, on the eve of the
dispositive motions deadline, would also be unduly prejudicial
to defendant. The plaintiff has already been deposed. Both
parties have engaged in discovery, and the Court has been
required to resolve several disputes. Adding new defendants and
new claims now would require the reopening of discovery, the redeposition of plaintiff, and new depositions and document
discovery. As noted above, the Court does not find that the
proposed amendments are supported by the “new evidence”
proffered. Accordingly, the Court finds that the factors of
unreasonable delay and undue prejudice support denial of the
motion to amend.
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G.

Conclusion

The Court concludes that the addition of the proposed
parties and claims would be futile, and would cause prejudice to
defendant at this stage in the proceeding, and that plaintiff’s
request was unduly delayed. The Court sees no justification to
permit the amendment of plaintiff’s Complaint at this time.
Accordingly, plaintiff’s Motion for Leave to File an Amended
Complaint and Motion for Joinder of Claims and Parties are
DENIED.
II.

Affidavit of Karen Rogala
Plaintiff’s Motion for Joinder of Claims and Parties

attaches an affidavit from Karen Rogala, a witness in this
matter. See Doc. #94-3. In defendant’s opposition to plaintiff’s
motion, and again at the October 4, 2016, conference, defendant
argued that Ms. Rogala’s testimony should be precluded, as
defendant’s efforts to serve her with a deposition notice and a
subpoena have been wholly unsuccessful. Specifically, defendant
contends that he attempted to serve Ms. Rogala with a notice and
a subpoena at her last known address of 37 Coles Road, Cromwell,
Connecticut; he has requested her contact information and
whereabouts from plaintiff on multiple occasions; and he has
effected an abode service on Ms. Rogala at her last known
address. See Doc. #97 at 13-14. Ms. Rogala failed to appear for
her deposition on July 27, 2016. Id. at 14.
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At the conference, plaintiff stated on the record that he
has spoken recently to Ms. Rogala on the phone, and that he
speaks with her often. He stated that he received her affidavit
dated September 9, 2016, by mail, and the envelope bore a return
address matching Ms. Rogala’s last known address of 37 Coles
Road. Plaintiff stated that Ms. Rogala has expressed to him that
she does not wish to be subpoenaed and therefore she will not
reveal her whereabouts.
Rule 26(a) of the Federal Rules of Civil Procedure governs
the parties’ mandatory initial disclosures. Rule 26(a)(1)(A)(i)
requires disclosure of:
the name and, if known, the address and telephone number
of each individual likely to have discoverable
information -- along with the subjects of that
information -- that the disclosing party may use to
support its claims or defenses, unless the use would be
solely for impeachment[.]
Fed. R. Civ. P. 26(a)(1)(A)(i). Each party has a duty to
disclose new information as it becomes available:
A party who has made a disclosure under Rule 26(a) -- or
who has responded to an interrogatory, request for
production, or request for admission -- must supplement
or correct its disclosure or response: (A) in a timely
manner if the party learns that in some material respect
the disclosure or response is incomplete or incorrect,
and if the additional or corrective information has not
otherwise been made known to the other parties during
the discovery process or in writing; or (B) as ordered
by the court.
Fed. R. Civ. P. 26(e). If a party fails to comply with these
Rules,
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the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or
at a trial, unless the failure was substantially
justified or is harmless. In addition to or instead of
this sanction, the court, on motion and after giving an
opportunity to be heard:(A) may order payment of the
reasonable expenses, including attorney’s fees, caused
by the failure;(B) may inform the jury of the party’s
failure; and (C) may impose other appropriate sanctions,
including
any
of
the
orders
listed
in
Rule
37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1).
Here, it has been clear since the filing of this case that
Ms. Rogala is a key witness for plaintiff; indeed, she was
originally named as a plaintiff. It is also evident that
plaintiff is in regular contact with Ms. Rogala, both by
telephone and by mail. While plaintiff has represented to the
Court that he does not have additional contact information for
Ms. Rogala, other than that already provided, her submission of
an affidavit in support of his recent motions strongly suggests
that he is able to locate her as needed. Defense counsel,
however, in spite of making repeated efforts including abode
service, has been unable to secure Ms. Rogala’s deposition
testimony.
Thus, as the Court explained at the conference, plaintiff
cannot call Ms. Rogala at trial to offer evidence in support of
his claims if he has not supplied updated, accurate contact
information to defendant’s counsel, and if Ms. Rogala has
refused to cooperate with the efforts to take her deposition.
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The circumstances put defense counsel in the untenable position
of having to confront a key witness at trial whom he has not
previously been able to interview or depose, while plaintiff has
had regular access to her throughout the pendency of the case.
See, e.g., Harewood v. Braithwaite, No. 09CV2874(PKC), 2013 WL
5366391, at *4 (E.D.N.Y. Sept. 23, 2013) (Testimony of an alibi
witness was precluded after he refused to be deposed when
subpoenaed, because if the witness were permitted to testify,
“[d]efendant would be prejudiced by having to confront his
testimony for the first time at trial.”); Yu Chen v. LW Rest.,
Inc., No. 10CV200(ARR), 2011 WL 3420433, at *21 (E.D.N.Y. Aug.
3, 2011) (“Moreover, as discovery has long closed by now,
defendants will be precluded from presenting any witnesses who
have not been produced for depositions or any other evidence
which has not been produced to plaintiffs.”).
As discussed at the conference, the Court declines to
impose the sanction of preclusion at this time. This issue has
only recently been brought to the Court’s attention. It appears
that plaintiff has not timely disclosed information regarding
Ms. Rogala’s whereabouts to defendant. In light of plaintiff’s
status as a self-represented party, however, the Court wishes to
ensure that he is fully aware of the potential consequences of
his repeated failure to produce this witness. See Reilly v.
Natwest Markets Grp. Inc., 181 F.3d 253, 270 (2d Cir. 1999)
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(upholding preclusion, noting that a party had “an adequate
opportunity to argue against the preclusion of the proposed
testimony of” uncooperative witnesses where party had “specific
notice” that preclusion was a possible sanction).
Accordingly, the Court will permit plaintiff an additional
opportunity to ensure that Ms. Rogala appears for a deposition
as duly noticed by defendant. Defendant shall notice the
deposition of Ms. Rogala for a date on or before December 1,
2016, by sending written notice to her last known address of 37
Coles Road, Cromwell, Connecticut. Counsel shall also send a
copy of the notice to plaintiff at his address of record.
Plaintiff must make his best efforts to ensure that Ms. Rogala
appears as directed. Should plaintiff become aware of additional
contact information or a different service address for Ms.
Rogala, he must notify counsel for the defendant immediately. If
Ms. Rogala again fails to appear for the re-noticed deposition,
plaintiff will be precluded from offering her testimony at trial
or relying on any other evidence from her in this matter,
pursuant to Rule 37(c). The Court has attached copies of Rules
26 and 37 to this order for plaintiff’s information.
III. Scheduling Order
At the October 4, 2016, conference, the Court also
discussed the operative Scheduling Order (Doc. #79). The Court
hereby reopens fact discovery in this matter for the limited
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purpose of conducting a deposition of Ms. Rogala. Defendant may
conduct the deposition of Ms. Rogala on or before December 1,
2016. No further fact discovery shall be permitted during this
timeframe. All other deadlines remain unchanged. On or before
December 2, 2016, defendant shall file a notice informing the
Court whether Ms. Rogala appeared for her deposition, and
detailing what, if any, additional discovery defendant believes
is warranted based on Ms. Rogala’s testimony.
IV.

Medical Authorization
At the conference, defendant informed the Court that he has

had difficulty obtaining signed authorizations from plaintiff to
release plaintiff’s medical and non-medical records from his
period of incarceration. On the record, plaintiff represented
that he had signed the authorization to release his medical
records and will send the authorization to defendant. However,
plaintiff does not consent to release any information regarding
his history of incarceration, and therefore refuses to sign the
non-medical release. Defendant has not filed a motion to compel
production of these records, and has not proffered any
persuasive basis for requesting plaintiff’s records from the
Department of Correction that are unrelated to medical issues.
Should defendant determine that the signed authorization he
receives from plaintiff is insufficient, he should file a motion
to compel immediately.
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This is not a Recommended Ruling. This is an order
regarding case management which is reviewable pursuant to the
“clearly erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 11th day of
October 2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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