Conquistador v. Hartford Police Department et al

Filing 94

ORDER. The 86 Motion to Amend/Correct the Complaint is GRANTED. However, the 87 Motion to Dismiss the Amended Complaint is also GRANTED. For the reasons stated in the attached order, the plaintiff's amended complaint failed to state a claim upon which relief can be granted. The amended complaint is DISMISSED with prejudice. The case will remain closed. Signed by Judge Michael P. Shea on 11/8/2017. (Mac Dougall, S.)

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

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

CITY OF HARTFORD, et al.,
Defendants.
RULING ON MOTION TO DISMISS
I.

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

Chief Rovella, Deputy Chief Foley, Hartford Police Officer John Doe 1, 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
move to dismiss the plaintiff’s third amended complaint (ECF No. 86), filed in response to my
order (ECF No. 84) dismissing the second amended complaint. Because the plaintiff’s new
complaint similarly fails to state a claim upon which relief can be granted, for the reasons stated
below, the Motion to Dismiss is GRANTED.
II.

Background
A. Procedural History
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 he accepted the amended complaint and granted the
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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. I
granted the defendants’ motion to dismiss the second amended complaint on March 13, 2017. I
allowed the plaintiff leave to amend his complaint with regard to the First, Fourth, and Fourteenth
Amendment claims against the City of Hartford and the defendant officers. On March 20, 2017,
the plaintiff filed his third amended complaint. (ECF No. 86.) On March 31, 2017, the defendants
renewed their motion to dismiss as to the plaintiff’s newly amended complaint. (ECF No. 87.)
B. 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.” (Third Amended
Complaint, ECF No. 86 at ¶ 12.) On his way to Hartford Hospital, Defendant Suarez stopped and
detained him. (Id. at ¶ 13.) Suarez “harassed” the plaintiff, but he then was transported to Hartford
Hospital. (Id. at ¶¶ 13–14.) On October 10, 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, but he would not help him recover his 98 Mustang because it was a “lost cause.” (Id. at
¶ 17.) Flores took the plaintiff to the scene. Defendant John Doe 1 accompanied Flores, while the
plaintiff walked to the back of the residence at which he had been assaulted and robbed. (Id. at ¶
18.) The plaintiff “knocked on the doors to the building but did not get a response.” (Id.) The

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plaintiff alleges that “[d]efendant Flores saw the plaintiff’s 98 Ford Mustang parked in the back of
the residence where the plaintiff was assaulted and robbed”, but the “vehicle was not recovered.”
(ECF No. 86 at ¶¶ 19–20.) The plaintiff was then transported back to Hartford Hospital. (Id. at ¶
21.)
The next day, the plaintiff called the Hartford Police Department and “was instructed to
appear . . . with the previous owner of the plaintiff’s 98 Ford Mustang.” (ECF No. 86 at ¶ 22.)
Plaintiff and Jamie Lockhart, the previous owner, appeared at the Hartford Police Department
between 8:00 p.m. and 10:00 p.m. that evening and “provided sufficient documentation showing
that that ownership of the 98 Ford Mustang was passed over to the plaintiff.” (Id. at ¶¶ 23–24.)
The plaintiff asked defendant Johnson to make a photocopy of the bill of sale, but Johnson refused.
(Id. at ¶¶ 25–26.) The plaintiff asked if there would be incident reports about the stolen vehicle,
and Defendant Johnson and others said that there would not be: Johnson said 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 ¶ 28.) Suarez and John Doe “questioned the plaintiff” and told him that “they, and
the [Hartford Police Department,] thought the plaintiff’s story of the incident was ‘fishy.’” (Id. at
¶ 29.)
At later times, the plaintiff called the Hartford Police Department and spoke with
Defendants Velazquez and Defendant Foley, who “did not help the plaintiff find a solution.” (ECF
No. 86 at ¶¶ 30–32.) Plaintiff alleges that he called defendant 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. at ¶ 33.)
The plaintiff’s third amended complaint adds two additional facts, compared with what he
alleged in the second amended complaint: (1) that defendant Flores “saw the plaintiff’s 98 Ford

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Mustang parked in the back of the residence where the plaintiff was assaulted and robbed” (Id. at
¶ 19); and (2) that the plaintiff asked defendant Johnson (previously terminated from the case on
December 7, 2015) to make a photocopy of the bill of sale for the car and that Johnson refused to
photocopy it. (Id. at ¶¶ 25–26.) All other factual allegations stated in the third amended complaint
were previously considered when I ruled on the motion to dismiss the second amended complaint.1
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 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Under Twombly, the Court accepts as true
all of the complaint’s factual allegations when evaluating a motion to dismiss. Twombly, 550 U.S.
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 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

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Although a few of the ways in which plaintiff describes certain allegations are altered and the date on which he
alleges that he contacted the Hartford Police Department is changed from October 11 to October 10, 2015, I have
evaluated the substance of these allegations and found them to be otherwise identical (and the differences legally
irrelevant), aside from the changes in word choice.

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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).
“[P]leadings of a pro se plaintiff must be read liberally and should be interpreted to ‘raise
the strongest arguments that they suggest.’” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)
(citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
IV.

Discussion
The plaintiff invokes 42 U.S.C. Section 1983, alleging violations of his First 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. 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).
The plaintiff’s third amended complaint still 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. The facts that the

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plaintiff added to this complaint do not address these deficiencies, which existed in the prior
complaint as well. Therefore, the plaintiff’s claims against the City of Hartford are DISMISSED.
B. Claims Against the Defendant Officers
1. Fourteenth Amendment: Failure to Investigate
The plaintiff asserts a due process claim under the Fourteenth Amendment for the
defendants’ “negligence[] and deprivation of the plaintiff’s due process rights,” which the Court
construes as a claim for failure to investigate. The plaintiff alleges that the officers failed to recover
his stolen car and bookbag and thought his story was “fishy.” The plaintiff now also alleges that
defendant Flores “saw the plaintiff’s 98 Ford Mustang parked in the back of the residence” that
they visited together. (ECF No. 86 at ¶ 19.) “[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 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).
Whether or not Flores observed the plaintiff’s car after it had allegedly been stolen, the plaintiff’s
claim remains that the defendant failed to investigate his claim—which is not a federal right that
he can enforce. Thus, plaintiff’s Fourteenth Amendment claim for a failure to investigate against
the officers is DISMISSED.

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2. Fourteenth Amendment: Equal Protection
Plaintiff claims that the defendants’ “deliberate indifference [and] discrimination” violated
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., No. 13-cv-5082, 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 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
The plaintiff also alleges violation of the First Amendment. 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. He also alleges that defendant
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Johnson did not make a photocopy of the bill of sale for the plaintiff’s car. “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 “harassed” him and Flores told him that finding the car was a “lost cause,” 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).
V.

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

The claims in the third amended complaint (ECF No. 86) are DISMISSED with prejudice. The
case will remain closed.

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IT IS SO ORDERED.

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

Hartford, Connecticut
November 8, 2017

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