Conquistador v. Hartford Police Department et al

Filing 84

ORDER. For the reasons stated above, Defendants' 60 Motion to Dismiss is GRANTED. The claims against the Hartford Police Department are DISMISSED with prejudice. The claims against the City of Hartford and the defendant Officers are DISMISSED without prejudice. In light of the plaintiff's pro se status, the Court will give the plaintiff one more chance to amend his complaint to properly state a claim in accordance with the Court's ruling. Should plaintiff wish to do so, he may file an amended complaint that set forth the basis for the Court's jurisdiction and sufficient facts, accepted as true, that state a claim for relief by April 13, 2017.Plaintiff's 48 Motion to Compel, 51 Motion for Conference, [ 62] Motion to Compel, 64 Motion to Compel, 65 Motion to Appoint Counsel, 70 Motion to Compel, 73 Motion to Amend/Correct, 78 Motion to Compel, and 80 Motion for Default Judgment are DENIED as moot. The Clerk is directed to close the case. Signed by Judge Michael P. Shea on 3/13/2017. (Connelly, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JEAN K. CONQUISTADOR,
Plaintiff,
v.

No. 3:15-cv-1618 (MPS)

HARTFORD POLICE DEPARTMENT, et al.,
Defendants.
RULING ON MOTION TO DISMISS
I.

Introduction
Plaintiff Jean Conquistador has brought this lawsuit against the City of Hartford, Hartford

Police Department, Deputy Chief Brian Foley, Hartford Police Officer John Doe 1, Hartford
Police Officer John Doe 2, Hartford Police Officer John Doe 3, Hartford Police Officer Johnson,
Hartford Police Officer Velazquez, Hartford Police Officer Cashman, Hartford Police Officer
Suarez, and Hartford Police Officer Flores, alleging a violation of his constitutional rights under
42 U.S.C. § 1983. Defendants have moved to dismiss the complaint because the plaintiff has
failed to state a claim upon which relief can be granted. For the reasons stated below, the Motion
to Dismiss is GRANTED.
II.

Background
A. Allegations
The plaintiff alleges the following facts. On October 10, 2015, the plaintiff was

“assaulted and robbed for his 98 mustang, school book bag and other unspecified items.”
(Complaint, ECF No. 28 at ¶ 1.) On his way to Hartford Hospital, Defendant Suarez “stopped
and detained” him. (Id. at ¶ 2.) Suarez “verbally assaulted” the plaintiff, but was transported to
Hartford Hospital. (Id. at ¶ 3.) On October 11, 2015, the plaintiff asked Defendant Flores to
take him to recover his 98 Mustang and book bag, and Flores responded that he would take the

plaintiff to the scene to recover his book bag, but he would not held him recover his 98 Mustang
because it was a “lost cause.” (Id. at ¶ 4.) Flores and Defendant John Doe 1 took the plaintiff to
the scene and plaintiff knocked on the “building’s main door” but no one answered and “nothing
was recovered.” (Id. at ¶ 5-6.) The plaintiff was then transported back to Hartford Hospital. (Id.
at ¶ 7.)
That same day, the plaintiff called the Hartford Police Department and “was instructed to
appear with the previous owner of the plaintiff’s vehicle.” (Id. at ¶ 8.) Plaintiff and Jamie
Lockhart, the previous owner, appeared at the Hartford Police Department between 8:00pm and
10:00pm that evening, and “produced sufficient documentation to show that ownership of the
vehicle was indeed signed over to the plaintiff.” (Id. at ¶ 9.) Plaintiff asked if there would be
incident reports about the stolen vehicle, and Defendant Johnson said that there would not be and
that he would not accept the reporting of the stolen vehicle and that Defendant Suarez was “on
his way to make the report.” (Id. at ¶ 11.) Suarez and John Doe “questioned the plaintiff” and
told him that “they, and the Hartford Police Department thought of the plaintiff’s story of the
incident as ‘fishy.’” (Id. at ¶ 12.)
At later times, the plaintiff called the Hartford Police Department and spoke with
Defendants Cashman, Defendant Velazquez, and Defendant Foley, who were “unwilling to help
the plaintiff with seeking a solution.” (Id. at ¶ 13-14.) In his third motion to amend his
complaint, plaintiff seeks to add Hartford Police Chief James Rovella. (ECF No. 73.) Plaintiff
alleges that he called Rovella’s office multiple times and was never called back, and that Rovella
did not direct his officers to investigate his claim or arrest the suspects. (Id.)
B. Procedural History

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Plaintiff filed this lawsuit on November 9, 2015, along with a motion to proceed in forma
pauperis. (ECF Nos. 1, 2.) On November 30, 2015, Magistrate Judge Sarah Merriam filed a
Recommended Ruling, dismissing the complaint without prejudice and denying the motion to
proceed in forma pauperis. (ECF No. 8.) On December 7, 2015, plaintiff filed an amended
complaint. (ECF No. 12.) On July 28, 2015, District Judge Charles Haight approved Magistrate
Judge Merriam’s Recommended Ruling, but accepted the amended complaint and granted the
plaintiff’s refiled motion to proceed in forma pauperis. (ECF No. 20.) Plaintiff filed a motion to
amend his complaint and add three defendants on May 25, 2016. (ECF No. 28.) The Defendants
filed a Motion to Dismiss the First Amended Complaint on June 8, 2016. (ECF No. 29.) On
August 22, 2016, the Court granted plaintiff’s motion to amend his complaint and accepted the
second amended complaint, denying the Defendants’ Motion to Dismiss the First Amended
Complaint. (ECF No. 56.) The Defendants filed a Motion to Dismiss the Second Amended
Complaint on September 2, 2016. (ECF No. 60.) This case was transferred to this Court on
October 5, 2016.
III.

Standard
Under Fed. R. Civ. P. 12(b)(6), the Court must determine whether the Plaintiff has

alleged “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570. Under Twombly, the Court accepts as true all of the complaint’s
factual allegations when evaluating a motion to dismiss. Id. at 572. The Court must “draw all
reasonable inferences in favor of the non-moving party.” Vietnam Ass’n for Victims of Agent
Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008). “When a complaint is based solely
on wholly conclusory allegations and provides no factual support for such claims, it is
appropriate to grant defendants[’] motion to dismiss.” Scott v. Town of Monroe, 306 F. Supp. 2d

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191, 198 (D. Conn. 2004). For a complaint to survive a motion to dismiss, “[a]fter the court
strips away conclusory allegations, there must remain sufficient well-pleaded factual allegations
to nudge plaintiff’s claims across the line from conceivable to plausible.” In re Fosamax
Products Liab. Litig., 2010 WL 1654156, at *1 (S.D.N.Y. Apr. 9, 2010). In other words “a
plaintiff must plead factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 86 (2d Cir. 2015) (internal quotation marks and citation omitted).
IV.

Discussion
The plaintiff invokes 42 U.S.C. § 1983, alleging violations of his First, Fourth, and

Fourteenth Amendment rights. To state a claim under Section 1983, the plaintiff must allege that
a person acting under color of state law deprived him of a right secured by the Constitution or
laws of the United States. 42 U.S.C. § 1983.
A. Defendant Hartford Police Department
The plaintiff names the Hartford Police Department as a defendant but does not otherwise
allege facts to support a claim against the department. The claim against the Hartford Police
Department is dismissed because a municipal police department is not a “person” subject to suit
within the meaning of 42 U.S.C. § 1983. Petaway v. City of New Haven Police Department, 541
F. Supp. 2d 504, 510 (D. Conn. 2008); see also Rose v. City of Waterbury, No. 3:12cv291, 2013
WL 1187049, at *9 (D. Conn. 2013) (dismissing the Waterbury Police Department as a
defendant in a Section 1983 suit because the “Connecticut General Statutes contain no provision
establishing municipal departments, including police departments, as legal entities separate and
apart from the municipality they serve, or providing that they have the capacity to sue or be
sued.”).

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B. City of Hartford
“A municipality may be liable under Section 1983 for any ‘policy or custom’ that causes
a ‘deprivation of rights protected by the Constitution.’” Canzoneri v. Inc. Village of Rockville
Centre, 986 F. Supp. 2d 194, 204 (E.D.N.Y. 2013) (quoting Monell v. Dep’t of Soc. Servs. of
New York, 439 U.S. 658, 690 (1978)). To state such a claim, the plaintiff must allege that “(1) an
official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a
constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (quotations and
citations omitted). “The failure to train or supervise city employees may constitute an official
policy or custom if the failure amounts to ‘deliberate indifference’ to the rights of those with
whom the city employees interact.” Id. at 195 (quotations and citations omitted).
Plaintiff has failed to allege any official policy or custom, or any claim that the City of
Hartford failed to train or supervise its employees. Furthermore, plaintiff has not alleged an
underlying constitutional violation.
C. Claims Against the Defendant Officers
1. Fourteenth Amendment: Failure to Investigate
Construing the complaint liberally, the plaintiff asserts a due process claim under the
Fourteenth Amendment for the defendants’ “negligence in honest and honorable police duty,”
which the Court construes as a claim for failure to investigate. Plaintiff alleges that the officers
failed to recover his stolen car and bookbag and thought his story was “fishy.” “[A] ‘failure to
investigate’ is not independently cognizable as a stand-alone claim,” McCaffrey v. City of N.Y.,
2013 WL 494025, at *5 (S.D.N.Y. Feb. 7, 2013), and “there is no federal right to have criminal
wrongdoers prosecuted.” Marsh v. Kirschner, 31 F.Supp.2d 79, 81 (D.Conn.1998) (citations
omitted); see also Grega v. Pettengill, 123 F. Supp. 3d 517, 536–37 (D. Vt. 2015) (“[D]istrict

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courts in this circuit have consistently declined to recognize a claim of ‘failure to investigate’ as
a violation of due process giving rise to a damages action.”) (collecting cases). This is because
“the duty to investigate criminal acts (or possible criminal acts) almost always involves a
significant level of law enforcement discretion.” Harrington v. Cty. of Suffolk, 607 F.3d 31, 35
(2d Cir. 2010). “That discretion precludes any legitimate claim of entitlement to a police
investigation.” Id. (internal quotation marks omitted). Thus, plaintiff’s Fourteenth Amendment
claim for a failure to investigate against the officers is DISMISSED.
2. Fourteenth Amendment: Equal Protection
Plaintiff claims that the defendants’ “deliberate indifference and unequal protection”
violated his rights under the Constitution. Construing the complaint liberally, the Court
interprets this as a claim a violation of his equal protection rights under the Fourteenth
Amendment. “While the Constitution provides individuals with no affirmative right to an
investigation of their claims by the government, it does prohibit the government from treating
individuals unequally when determining which claims to investigate.” Troy v. City of N.Y., 2014
WL 4804479, at *10 (S.D.N.Y. Sept. 25, 2014), aff'd, 614 F. App'x 32 (2d Cir. 2015) (citing
Myers v. Cnty. of Orange, 157 F.3d 66 (2d Cir.1998)). To plead an equal protection violation, a
plaintiff must allege that
(1) the person, compared with others similarly situated, was selectively treated;
and (2) ... such selective treatment was based on impermissible considerations
such as race, religion, intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a person.
Crowley v. Courville, 76 F.3d 47, 52–53 (2d Cir. 1996). “Without an allegation that other
persons similarly situated were treated differently, the ‘equal’ portion of the Equal Protection
Clause becomes meaningless.” Presnick v. Town of Orange, 152 F. Supp. 2d 215, 225 (D. Conn.
2001) (quoting Economic Opportunity Commission of Nassau Cty. v. County of Nassau, 106
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F.Supp.2d 433, 440 (E.D.N.Y.2000)). Plaintiff’s complaint does not allege any facts suggesting
that he was treated differently than anyone who was similarly situated. Nor does it allege any
facts suggesting that the officers’ refusal to investigate the theft of his Mustang was based on
impermissible considerations. Thus, the claim is dismissed.
3. First Amendment
While the plaintiff has not expressly alleged a violation of his First Amendment rights in
the complaint, the defendants have also moved to dismiss the complaint because it does not state
a claim for a violation of his First Amendment rights. To the extent the complaint, construed
liberally, alleges a First Amendment violation, that claim is dismissed. Plaintiff alleges that he
tried to file a criminal complaint with the Police Department about his stolen vehicle, but that the
Defendants would not accept his report or investigate it. “The rights to complain to public
officials and to seek administrative and judicial relief are protected by the First Amendment.”
Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir. 1994). Furthermore, “it is axiomatic that
filing a criminal complaint with law enforcement officials constitutes an exercise of the First
Amendment right to petition government for the redress of grievances.” Estate of Morris ex rel.
Morris v. Dapolito, 297 F. Supp. 2d 680, 692 (S.D.N.Y. 2004) (internal quotation marks and
citations omitted). Plaintiff does not allege that he was denied an opportunity to file a criminal
complaint, however. In fact, he alleges that was told to come to the police station to provide
more information about report, and it was then that the officers found his report “fishy.” As
discussed above, there is no constitutional right to an investigation once the plaintiff was
permitted to petition the police to investigate.
To the extent that the plaintiff is alleging that his interactions with Suarez and Flores,
when Suarez “verbally assaulted” him and Flores told him that finding the car was a “lost cause,”

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violated his First Amendment rights because it chilled the exercise of his First Amendment
rights, his claim is dismissed. “Mere rudeness or inconvenience, however unpleasant, does not
rise to the level of a cognizable ‘chill’ on the exercise of First Amendment rights.” Batista v.
Rodriguez, 702 F.2d 393, 398 (2d Cir. 1983).
4. Fourth Amendment
While the plaintiff does not explicitly state a claim under the Fourth Amendment, he does
allege that he was “stopped and detained” and “verbally assaulted” by defendant Suarez. (ECF
No. 28 at ¶ 2.) The plaintiff does not give any additional information to allow the Court to
determine if he has stated a Fourth Amendment claim. Nonetheless, because there is a
possibility that the pro se plaintiff could amend his complaint to state a claim upon which relief
could be granted under the Fourth Amendment, the Court will dismiss the claim without
prejudice. See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999).
V.

Conclusion
For the reasons stated above, Defendants’ Motion to Dismiss (ECF No. 60) is

GRANTED. The claims against the Hartford Police Department are DISMISSED with
prejudice. The claims against the City of Hartford and the defendant Officers are DISMISSED
without prejudice. In light of the plaintiff’s pro se status, the Court will give the plaintiff one
more chance to amend his complaint to properly state a claim in accordance with the Court’s
ruling. Should plaintiff wish to do so, he may file an amended complaint that set forth the basis
for the Court's jurisdiction and sufficient facts, accepted as true, that state a claim for relief
by April 13, 2017.
Plaintiff’s Motion to Compel Discovery (ECF No. 48), Motion for Settlement Conference
(ECF No. 51), Motion to Compel (ECF No. 62), Motion to Compel (ECF No. 64), Motion to

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Appoint Counsel (ECF No. 65), Motion to Compel (ECF No. 70), Motion to Compel (ECF No.
78), and Motion for Default Judgment (ECF No. 80) are DENIED as moot. The plaintiff has
filed a motion to amend his complaint for a third time (ECF No. 73), in which he seeks to add
Hartford Police Chief James Rovella as a defendant. The defendants object to the motion to
amend the complaint. The proposed amended complaint does not address any of the defects in
the Defendants’ motion to dismiss, and does not plead cognizable claims. Thus the Motion to
Amend (ECF No. 73) is DENIED as moot.
The Clerk is directed to close the case.

IT IS SO ORDERED.

/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
March 13, 2017

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