Cane v. New Britain Police Department et al

Filing 17

INITIAL REVIEW ORDER Discovery due by 9/28/2017; Dispositive Motions due by 10/28/2017. Because the Clerk will effect service of the complaint on the defendants, Mr. Cane is not required to comply with Rule 4(m) and serve the defendants himself. Signed by Judge Stefan R. Underhill on 2/27/2017. (Landman, M)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ROBERT A. CANE,
Plaintiff,
v.
NEW BRITAIN POLICE DEP’T, et al.,
Defendants.

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No. 3:16-cv-1638 (SRU)

INITIAL REVIEW ORDER
Robert A. Cane resided in New Britain, Connecticut, when he initiated this action
pursuant to 42 U.S.C. § 1983 against the New Britain Police Department, Police Chief James
Wardell, Captain Thomas Steck, Sergeants Carlos Burgos and Arthur Powers, Officers Peter
Scirpo, Francesco Barbagiovanni, Amando Elias, Egan and Saylor, Detectives Daniel McBride
and Carl Mordasiwicz, Lieutenant Rodriguez and Dog Warden Russo. Cane is currently
incarcerated at the MacDougall-Walker Correctional Institution. On October 11, 2016, the court
granted Cane leave to proceed in forma pauperis.
Cane has filed a motion for appointment of counsel and motions for extension of time to
serve the complaint. For the reasons set forth below, the complaint will be dismissed in part and
the motions for appointment of counsel and for extension of time will be denied.
I.

Standard of Review
When the court grants in forma pauperis status, it must conduct an initial screening of the

complaint to ensure that the case is sufficiently meritorious to proceed. 28 U.S.C. § 1915.
Subsection (e) of that provision protects against abuses of the in forma pauperis privilege by
providing that the Court “shall dismiss the case at any time if the court determines that . . . the

action . . . (i) is frivolous or malicious; or (ii) fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B).
A claim is “frivolous” if it lacks an arguable basis in either law or fact. See Neitzke v.
Williams, 490 U.S. 319, 325 (1989). As the Supreme Court explained in Neitzke, section
1915(e)(2) “accords judges not only the authority to dismiss a claim based on an indisputably
meritless legal theory, but also the usual power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke,
490 U.S. at 327.
Although detailed allegations are not required, the complaint must include sufficient facts
to afford the defendants fair notice of the claims and grounds upon which they are based and to
demonstrate a plausible right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. Nevertheless, it is well-established that “[p]ro se complaints ‘must be
construed liberally and interpreted to raise the strongest arguments that they suggest.’” Sykes v.
Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90. 101-02 (2d Cir.
2010) (discussing special rules of solicitude for pro se litigants).
II.

Background
On October 7, 2013, Cane was sleeping in the living room of his home located at 830

Slater Road in New Britain, Connecticut. Cane woke up when he heard activity outside his
home. Out of his window he could see that New Britain police officers were blocking the area in

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front of his home. An officer directed Cane to come out of his house. Cane went out on his
front porch and asked if the officers had a warrant. They indicated that they did not possess a
warrant. Cane told them to come back with a warrant and went back inside his home.
An officer telephoned Cane and directed him to exit the fenced area of his yard so that
they could talk. Captain Steck, Sergeant Burgos, Officers Scirpo, Barbagiovanni and Elias and
Detective McBride were armed with rifles and intimidated Cane as he stood in his yard and on
his porch. Sergeant Powers threatened Cane during several phone calls. Cane repeatedly told
the officers to come back to his home with a warrant.
After thirty minutes of verbal harassment and intimidation, Officers Saylor and Egan,
Lieutenant Rodriguez and Detective Mordasiwicz entered Cane’s property over the fence
surrounding his yard and cut a hole in his garage. Cane feared for his life and surrendered to
Officers Saylor and Egan, Lieutenant Rodriguez and Detective Mordasiwicz. Although Cane
made those police officers and officials aware that he did not possess any weapons, they tackled
him to the ground from behind using excessive force. Cane sustained a tear in his right rotator
cuff that subsequently required surgery. Officers Saylor and Egan, Lieutenant Rodriguez and
Detective Mordasiwicz took Cane into custody and removed him from his property.
Captain Steck, Sergeant Burgos, Officers Scirpo, Barbagiovanni, Elias, Egan and Saylor,
Detectives McBride and Mordasiwicz, Lieutenant Rodriguez and Dog Warden Russo then
entered Cane’s home without a warrant, searched it and seized various items of contraband. The
items seized were used to obtain a search warrant the following day and to support Cane’s arrest
on felony charges. Chief Wardell supervised the searches of Cane’s home.
III.

Discussion

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A.

Claims against New Britain Police Department

A municipal police department is not an independent legal entity and is not subject to suit
under section 1983. See Rose v. City of Waterbury, 2013 WL 1187049, at *9 (D. Conn. Mar. 21,
2013) (noting that courts within Connecticut have determined that state statutes do not include
“provision[s] 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 . . . it is the municipality itself which possesses the capacity to sue and be sued”)
(internal quotation marks and citation omitted). Furthermore, a police department is not a person
amenable to suit under 42 U.S.C. § 1983. See Nicholson v. Lenczewski, 356 F. Supp. 2d 157,
164 (D. Conn. 2005) (collecting cases). Thus, any claims against the New Britain Police
Department are dismissed pursuant to 28 U.S.C. § 1915A(b)(1) as lacking an arguable legal
basis.
B.

Claims against Defendants in Official Capacities

Cane alleges that remaining defendants are all employed by the New Britain Police
Department. He seeks compensatory damages from the defendants in their individual and
official capacities.
In Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978), the Supreme Court set forth
the test for municipal liability. To establish municipal liability for the allegedly unconstitutional
actions of a municipal employee, the plaintiff must “plead and prove three elements: (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) (citation
omitted). A municipality cannot be held liable under 42 U.S.C. § 1983 solely for the acts of its

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employees. See Monell, 436 U.S. at 694-95. The plaintiff must demonstrate “a direct causal link
between a municipal policy or custom, and the alleged constitutional deprivation.” City of
Canton v. Harris, 489 U.S. 378, 385 (1989). Any claim against a municipal official or employee
in his official capacity is considered to be a claim against the municipality. See Hafer v. Melo,
502 U.S. 21, 25 (1991).
Cane has not alleged any conduct on the part of the defendants that is attributable to a
municipal custom, practice or policy which resulted in the deprivation of his constitutional
rights. The incidents that Cane describes regarding the search of his home, the destruction of his
property, his arrest and the use of excessive force are all isolated occurrences that occurred on
October 7, 2013. See Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single
incident of unconstitutional activity is not sufficient to impose liability under Monell, unless
proof of the incident includes proof that it was caused by an existing, unconstitutional municipal
policy, which policy can be attributed to a municipal policymaker.”); DeCarlo v. Fry, 141 F.3d
56, 61 (2d Cir. 1998) (“a single incident alleged in a complaint, especially if it involved only
actors below the policy-making level, does not suffice to show a municipal policy”) (internal
quotation marks and citation omitted).
Because Cane has not alleged facts suggesting that the defendants engaged in a
widespread pattern or practice of directing others to conduct unreasonable searches or subjecting
him or other individuals at other times to arrests without a warrant or excessive force, he fails to
state a claim for monetary damages against the defendants in their official capacities. See Klos
v. Bligh, 2014 WL 377893, at *6 (E.D.N.Y. July 31, 2014) (dismissing claims against police
officer defendants because no allegations that challenged conduct including, falsely arresting

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plaintiff, conspiracy to deprive plaintiff of civil rights, conspiracy to charge plaintiff with
fictitious crimes and obtain false statements and charging plaintiff with criminal offenses not
supported by probable cause, was the result of a municipal policy or custom). All official
capacity claims for monetary damages against the defendants are dismissed. See 28 U.S.C. §
1915A(b)(1).
C.

Claims against Sergeant Powers

The only allegation against Sergeant Powers is that he participated in telephone calls with
Cane in an effort to convince Cane to leave his property. Sergeant Powers allegedly verbally
harassed and threatened Cane during the conversations, but did not participate in entering onto
Cane’s property, searching his home or arresting him.
Verbal harassment or profanity alone, “unaccompanied by any injury no matter how
inappropriate, unprofessional, or reprehensible it might seem,” does not constitute the violation
of any federally protected right and therefore is not actionable under section 1983. Aziz Zarif
Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N.Y.1998) (collecting cases). Thus, Cane’s
assertion regarding verbal harassment and threats made by Sergeant Powers over the telephone
does not rise to the level of a violation of any federally protected right. See Carrow v. City of
N.Y., 2010 WL 1009996, at *8 (S.D.N.Y. Mar. 17, 2010) (section 1983 claim “premised on the
officers’ alleged use of verbal abuse and harassment,” lacked an arguable legal basis because
“[i]t is well established that verbal abuse and profanity is not actionable conduct under 42 U.S.C.
§ 1983, as it does not violate any protected federal right”) (collecting cases); Bowles v. State, 37
F. Supp. 2d 608, 613 (S.D.N.Y. 1999) (“To the extent [plaintiff] seeks to assert a claim of verbal
abuse against [the arresting officer], this Court notes that verbal harassment or threats alone do

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not constitute a violation of a federally protected right and are therefore not actionable pursuant
to 42 U.S.C. § 1983.”) (citations omitted). The verbal harassment claim against defendant
Powers is dismissed. See 28 U.S.C. § 1915A(b)(1).
D.

Claims against Remaining Defendants in Individual Capacities

Cane alleges that the defendants Chief Wardell, Captain Steck, Sergeant Burgos, Officers
Scirpo, Barbagiovanni, Elias, Egan and Saylor, Detectives McBride and Mordasiwicz,
Lieutenant Rodriguez and Dog Warden Russo violated his Fourth, Fifth and Fourteenth
Amendment rights when they entered his property and searched his home without a warrant,
destroyed his garage and possibly his fence when they entered his property, arrested him without
a warrant and used excessive force against him during the arrest. As the United States Supreme
Court has stated, if “a particular Amendment ‘provides an explicit textual source of
constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not
the more generalized notion of “substantive due process” must be the guide for analyzing these
claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S.
386, 395 (1989)).
Here, Cane’s claims of false arrest, excessive force, unreasonable search and seizure and
destruction of property in connection with the illegal entry onto his property are all covered by
the Fourth Amendment’s protections against unlawful searches and seizures. Therefore, Cane
cannot state a Fifth Amendment substantive due process claim, nor can he allege those same
injuries as violations of his Fourteenth Amendment substantive due process rights. See id. at
274-75 (“The Framers considered the matter of pretrial deprivations of liberty and drafted the
Fourth Amendment to address it . . . . [Therefore,] substantive due process . . . can afford [the

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plaintiff] no relief.”); United States v. Ramirez, 523 U.S. 65, 71 (1998) (“[e]xcessive or
unnecessary destruction of property in the course of a search may violate the Fourth
Amendment, even though the entry itself is lawful and the fruits of the search are not subject to
suppression”); Graham, 490 U.S. at 394 (“Where, as here, the excessive force claim arises in the
context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment”). Accordingly, the Fifth and Fourteenth
Amendment claims are dismissed. See 28 U.S.C. § 1915A(b)(1).
I conclude that Cane has stated Fourth Amendment claims of false arrest, illegal search
and seizure, destruction of property and excessive force against defendants Officers Saylor and
Egan, Lieutenant Rodriguez and Detective Mordasiwicz and Fourth Amendment claims of illegal
search and seizure against defendants Chief Wardell, Captain Steck, Sergeant Burgos, Officers
Scirpo, Barbagiovanni, Elias, Egan and Saylor, Detectives McBride and Mordasiwicz,
Lieutenant Rodriguez and Dog Warden Russo. Those claims will proceed against the defendants
in their individual capacities.
IV.

Motion for Appointment of Counsel
Civil litigants, unlike criminal defendants, do not have a constitutional right to the

appointment of counsel. See Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986) (district
judges are afforded “broad discretion” in determining whether to appoint pro bono counsel for an
indigent litigant in a civil case); 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to
represent any person unable to afford counsel.”) (emphasis added). The Second Circuit has
made clear that before an appointment is even considered in a civil action, the indigent person

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must demonstrate that he or she is unable to obtain counsel or legal assistance. See Hodge, 802
F.2d at 61.
Cane does not indicate that he has made any attempts to secure representation in this
action. Thus, he had not demonstrated that he is unable to secure legal assistance independently
or that he cannot litigate this case on his own. The motion for appointment of counsel is denied
at this time. See Hodge, 802 F.2d at 61.
V.

Conclusion
In is hereby ordered that:
(1)

All claims against defendants New Britain Police Department and Sergeant

Powers, the Fifth and Fourteenth Amendment claims, and the claims against all other defendants
in their official capacities are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). The Fourth
Amendment claims of false arrest, illegal search and seizure, destruction of property and
excessive force will proceed against defendants Officers Saylor and Egan, Lieutenant Rodriguez
and Detective Mordasiwicz in their individual capacities and the Fourth Amendment illegal
search and seizure claims will proceed against defendants Captain Steck, Sergeant Burgos,
Officers Scirpo, Barbagiovanni, Elias, Egan and Saylor, Detectives McBride and Mordasiwicz,
Lieutenant Rodriguez and Dog Warden Russo in their individual capacities.
The Motion for Appointment of Counsel [Doc. No. 9] is DENIED without prejudice to
refiling at a later stage of litigation. Any renewal of that motion shall be accompanied by a
summary of any attempts to obtain counsel or legal assistance, including the names of the
attorneys contacted, the dates upon which Cane made those contacts and the reasons why
assistance was unavailable.

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(2)

Within twenty-one (21) days of this Order, the Clerk shall mail a waiver of

service of process request packet to each of the following defendants in his or her individual
capacity at the New Britain Police Department, 10 Chestnut Street, New Britain, CT 06051:
Police Chief James Wardell, Captain Thomas Steck, Sergeant Carlos Burgos, Officer Peter
Scirpo, Officer Francesco Barbagiovanni, Officer Amando Elias, Officer Egan, Officer Saylor,
Detective Daniel McBride, Detective Carl Mordasiwicz, Lieutenant Rodriguez and Dog Warden
Russo.
(3)

Defendants shall file their response to the complaint, either an answer or motion

to dismiss, within sixty (60) days from the date the notice of lawsuit and waiver of service of
summons forms are mailed to them. If the defendants choose to file an answer, they shall admit
or deny the allegations and respond to the cognizable claims recited above. They may also
include any and all affirmative defenses permitted by the Federal Rules.
(4)

Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be

completed within seven months (210 days) from the date of this order. Discovery requests need
not be filed with the court.
(5)

All motions for summary judgment shall be filed within eight months (240 days)

from the date of this order.
(7)

If you change your address at anytime during the litigation of this case, Local

Rule 83.1(c)2 provides that you must notify the court. Failure to do so can result in the dismissal
of your case.
SO ORDERED at Bridgeport, Connecticut, this 27th day of February 2017.
/s/STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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