Ferrara v. Maturo et al

Filing 25

RULING For the above-stated reasons, the Motion to Amend (Doc. No. 24) is GRANTED. Accordingly, the court directs Ferrara to docket the Proposed Amended Complaint. When docketed, it will be the operative complaint and will be referred to as the Amend ed Complaint. The Motion to Dismiss (Doc. No. 19) is GRANTED IN PART AND DENIED IN PART. Specifically, it is GRANTED as to Count Five and DENIED as to Count Three. To the extent that Counts One and Two proceed under a theory of conspiracy, the Motio n to Dismiss is GRANTED, and Ferrara is given leave to replead if he can allege sufficient facts to state a claim of conspiracy. To the extent that Counts One and Two proceed under a theory of direct liability under section 1983 without relying on conspiracy, the Motion to Dismiss is DENIED. Signed by Judge Janet C. Hall on 9/26/2017. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
:
:
:
:
:
:
:

VINCENT FERRARA
Plaintiff,
v.
JOSEPH MATURO, JR., ET AL.
Defendants.

CIVIL ACTION NO.
3:17-CV-0360 (JCH)

SEPTEMBER 25, 2016

RULING RE: MOTION TO DISMISS (DOC. NO. 19) AND
MOTION TO AMEND (DOC. NO. 24)
I.

INTRODUCTION
The plaintiff, Vincent Ferrara, filed a Complaint on March 1, 2017. Complaint

(“Compl.”) (Doc. No. 1). In it, Ferrara brings five claims against the defendants Mayor
Joseph Maturo, Chiefs of Police Edward Lennon and Brent Larrabee, Deputy Chief of
Police James Naccarato, Police Sergeants Craig Michalowski and Kevin Klarmon,
Police Officer Robert Brockett, the Town of East Haven (“the Town”), and the East
Haven Board of Police Commissioners (“EHBPC”). Ferrara alleges that the defendants
retaliated against him for cooperating with the Department of Justice (“DOJ”) in its
investigation of the East Haven Police Department (“EHPD”). See Proposed Amended
Complaint (“Am. Compl.”) (Doc. No. 24-1).
The defendants filed a Motion to Dismiss Counts One, Two, Three, and Five of
the Complaint on May 8, 2017. Motion to Dismiss (“Mot. to Dismiss”) (Doc. No. 19).
Ferrara also filed a Motion to Amend the Complaint on July 20, 2017, to add a sixth
cause of action under Conn. Gen. Stat. § 31-51q. Motion to Amend Complaint (“Mot. to
Amend”) (Doc. No. 24).

1

For the reasons set forth below, the court grants Ferrara’s Motion to Amend. The
court also grants the defendants’ Motion to Dismiss as to Count Five and denies the
Motion as to Counts One, Two, and Three.
II.

FERRARA’S MOTION TO AMEND
Federal Rule of Civil Procedure 15(a)(2) provides that a party that is no longer

entitled to amend as a matter of course “may amend its pleading only with the opposing
party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). In those cases,
the court “should freely give leave when justice so requires.” Id. Ferrara’s Proposed
Amended Complaint seeks to add Count Six, alleging that the defendants violated
Conn. Gen. Stat. § 31-51q by disciplining Ferrara for exercising his First Amendment
rights. See Mot. to Amend. The Proposed Amended Complaint makes no changes to
the alleged facts or the other five Counts from the original Complaint and therefore does
not alter in any way the court’s analysis of the defendants’ Motion to Dismiss. See id.
The defendants have the opportunity to respond to the additional count and are not
prejudiced by the amendment. Nor have they opposed the Motion. Thus, the court
finds that justice would be served by permitting Ferrara to amend the Complaint, and
the Motion is granted.
Noting that the Proposed Amended Complaint is substantively identical to the
original Complaint in all areas relevant to the defendants’ Motion to Dismiss, the court
now treats the Proposed Amended Complaint as the operative complaint. See
McKnight v. Mental Health Ass’n of Conn., No. 3:13-CV-1436 (SRU), 2015 WL
5116766, at *1 (D. Conn. Aug. 28, 2015).

2

III.

FACTS
The Amended Complaint alleges the following facts.1 Ferrara was employed as

a police officer for the Town of East Haven beginning in 2007. Am. Compl. at ¶ 21. In
2009, the DOJ Civil Rights Division investigated the EHPD for police misconduct,
violations of constitutional rights, and discrimination. See id. at ¶ 22. Among other
findings, the DOJ found that “Chief Gallo and other EHPD officers created a hostile and
intimidating environment for persons who wished to cooperate with [their] investigation
at EHPD.” Id. 26. In 2012, the investigation resulted in a Settlement Agreement and
Compliance Order that required the EHBPC to establish a policy that “expressly
prohibit[s] all forms of retaliation, whether subtle or direct, including discouragement,
intimidation, coercion, or adverse action, against any person, civilian or officer, who
reports misconduct, makes a misconduct complaint or cooperates with an investigation
of misconduct.” Id. at ¶ 65; see also id. at ¶ 66.
In 2010, the DOJ Criminal Division also investigated the EHPD for similar
violations. Id. at ¶ 31. Ferrara cooperated with the DOJ and the FBI in the investigation
by providing information about discriminatory and illegal actions of EHPD officers and
by testifying against them before a grand jury. See id. at ¶¶ 32–37. The Amended
Complaint alleges that this speech is protected by the First Amendment. See id. at ¶¶
76–77. Several EHPD officers were subsequently indicted for criminal violations,

1 The court accepts all factual allegations in the Amended Complaint as true for the purposes of a
motion to dismiss. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). When a proposed amended complaint
is filed in response to a motion to dismiss, as is the case here, the facts alleged in the proposed amended
complaint are assumed to be true for purposes of the motion to dismiss. See Claes v. Boyce Thompson
Inst. for Plant Research, 88 F.Supp.3d 121, 123 (N.D.N.Y. 2015).

3

including among other things, “instances of harassment and intimidation of fellow
officers believed to be cooperating with the DOJ/FBI.” Id. at ¶¶ 52–53.
The Amended Complaint alleges that other EHPD officers, including the
defendants, learned of Ferrara’s cooperation and harassed him in retaliation. See id. at
¶ 38, 54. Examples of such harassment against Ferrara include making threats and
intimidating comments at police union meetings, hanging an offensive poster outside his
locker, ordering new officers not to associate with him, refusing to back him up on calls,
threatening him with a gun, and filing false complaints against him. See, e.g., id. at ¶¶
39–51, 60–64, 69. For instance, in 2016, defendant Sergeant Michalowski filed a false
complaint of unreasonable force against Ferrara. Id. at ¶ 60. Additionally, in March of
that year, defendant Chief of Police Larrabee suspended Ferrara for ten days without
cause on a false finding that he violated the disciplinary matrix. Id. at ¶ 63. When
Ferrara appealed the suspension to the EHBPC, the EHBPC initially indicated that it
would overturn the suspension but, after holding an executive session and postponing
the meeting, the EHBPC instead upheld it. Id. at ¶ 64. Ferrara also alleges that he filed
grievances and complaints about the harassment and retaliation to Mayor Maturo,
Chiefs of Police Larrabee and Lennon, and the EHBPC, but none of the defendants
acted on his complaints. See id. at ¶¶ 46, 70–71.
The Amended Complaint contains six counts against the defendants based on
these facts. Pursuant to section 1983, Count One alleges that the defendants violated
Ferrara’s First Amendment rights by retaliating against him because of his protected
speech in cooperation with the DOJ and FBI. See id. at ¶¶ 76–83. Count Two alleges
that the defendants violated Ferrara’s Fourteenth Amendment rights by failing to provide

4

adequate procedures before disciplining him and instead using the disciplinary process
to harass him. See id. at ¶¶ 85–92. Count Three alleges that the Town of East Haven
is liable for the aforementioned violations under Monell v. Department of Social
Services, 436 U.S. 658 (1978). See id. at ¶¶ 93–100. Count Four alleges that the
defendants, by their harassment and retaliation, intentionally inflicted emotional distress
on Ferrara. See id. ¶¶ 101–05. Count Five alleges that the Town is liable for damages
caused by the negligence of its officers under Conn. Gen. Stat. § 52-557n. See id. at ¶¶
107–08. Finally, Count Six, which was added in the Amended Complaint, alleges that
the defendants violated Conn. Gen. Stat. § 31-51q by disciplining Ferrara for exercising
his First Amendment rights. See id. at ¶¶ 110–11. The defendants now move to
dismiss Counts One, Two, Three, and Five of the above.
IV.

LEGAL STANDARD
Federal Rule of Civil Procedure 8(a) requires a complaint to plead “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
Proc. 8(a). Under Rule 12(b)(6), to survive a motion to dismiss for failure to state a
claim, that plain statement must allege facts sufficient to state a plausible claim for
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (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). While this plausibility standard does not require
probability, it is not satisfied by “a sheer possibility that a defendant has acted
unlawfully” or by facts that are “merely consistent with a defendant’s liability.” Id.
(internal quotation marks omitted).

5

In deciding a motion to dismiss under Rule 12(b)(6), the court must accept all
material factual allegations of the complaint as true and draw all reasonable inferences
in favor of the plaintiff. Hemi Grp., LLC v. City of New York, 559 U.S. 1, 5 (2010);
Jaghory v. N.Y. State Dep’t Educ., 131 F.3d 326, 329 (2d Cir. 1997). However, the
court is not required to accept as true a “legal conclusion couched as a factual
allegation.” Timm v. Faucher, No. 3:16-CV-00531 (VAB), 2017 WL 1230846, at *6 (D.
Conn. Mar. 31, 2017) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). In those
instances, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The court may consider
“only the facts alleged in the pleadings, documents attached as exhibits or incorporated
by reference in the pleadings, and matters of which judicial notice should be taken.”
Borg v. Town of Westport, No. 3:15-CV-1380 (AWT), 2016, WL 9001021, at *3 (D.
Conn. Aug. 18, 2016) (quoting Samuels v. Air Trans. Local 504, 992 F.2d 12, 15 (2d Cir.
1993)).
V.

DISCUSSION
The defendants move to dismiss Counts One, Two, Three, and Five.2 They

argue that Counts One and Two fail to state a claim first, because the allegations of
conspiracy are conclusory, vague, and general, and second, because a conspiracy
cannot exist between members of the same corporation.3 See Defendant’s

2 The original Complaint, on which the defendants relied in filing their Motion to Dismiss, did not
contain Count Six, which was added in the Amended Complaint after the Motion to Dismiss was filed.
See Mot. to Amend at 1.
3

A police department has been treated as a corporation for the purposes of the intracorporate
conspiracy doctrine. See Natale v. Town of Darien, No. CIV. 3:97CV583 (AHN), 1998 WL 91073, at *5
(D. Conn. Feb. 26, 1998).

6

Memorandum in Support of Motion to Dismiss (“Mem. in Supp.”) at 4–12. The
defendants argue that Count Three fails to state a claim against the Town of East
Haven because Ferrara has not pled facts indicating that his alleged injuries were
caused by a policy of the Town. See id. at 12–18. Finally, they argue that Count Five
fails to state a claim of negligence against the Town because the Amended Complaint
has pled only facts showing that the defendants acted intentionally, not negligently. See
id. at 18–20.
A.

First and Fourteenth Amendment Claims (Counts One and Two)

Counts One and Two of the Amended Complaint assert claims under section
1983 of title 42 of the United States Code (“section 1983”), alleging that the defendants
violated Ferrara’s rights under the First and Fourteenth Amendments. See Am. Compl.
at ¶¶ 76–83, 85–92. The defendants argue that the court should dismiss Counts One
and Two because Ferrara failed to plead facts alleging that the defendants engaged in a
conspiracy. See Mem. in Supp. at 4–12. The court agrees that, to the extent Ferrara
sought to plead conspiracy under section 1983, he failed to do so, and Counts One and
Two should be dismissed. However, the court reads the Amended Complaint as also
alleging that the defendants each violated Ferrara’s rights individually and finds that
Ferrara has stated a sufficient claim for relief on that basis.
1.

Against Each Defendant Directly and Individually

A section 1983 claim has two essential elements: “(1) whether the conduct
complained of was committed by a person acting under color of state law; and (2)
whether this conduct deprived a person of rights, privileges, or immunities secured by
the Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535
(1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330–31
7

(1986). While a claim of conspiracy can be brought under section 1983, a conspiracy is
not required for a section 1983 action, as an individual defendant can—and often
does—violate a plaintiff’s constitutional rights without first agreeing with others to do so.
In this case, although the Amended Complaint does contain allegations
pertaining to conspiracy, it also makes claims against each defendant that do not rely
on their acting in concert. Ferrara is permitted to raise both kinds of claims in the same
complaint and has sufficiently stated a claim for relief against each defendant directly
and individually. For example, the Amended Complaint alleges, among other things,
that Officer Brockett told other officers that Ferrara was a rat and refused to back him up
on calls; that Sergeants Michalowski and Klarmon ordered new officers not to associate
with him; that Sergeant Michalowski initiated a false complaint of unreasonable force
against him in 2016; that Chief of Police Larrabee wrongly suspended him in March of
2016; and that the EHBPC improperly upheld the suspension. See Am. Compl. at ¶¶
42–46, 60–64.
The defendants have raised no challenge to Counts One and Two for failure to
state a claim against each defendant directly. Their arguments pertain only to the
extent these two counts seek to allege a theory of conspiracy. For example, while the
defendants argue that the allegations of conspiracy are conclusory, vague, and general,
they do not raise the same argument as to the allegations of direct retaliation or
harassment. See Mem. in Supp. at 9–11. Therefore, to the extent that Counts One and
Two do not rely on conspiracy and instead allege that each defendant individually
violated Ferrara’s First and Fourteenth Amendment rights, the Motion to Dismiss is
denied.

8

2.

Under a Theory of Conspiracy

To the extent that Ferrara does proceed under a conspiracy theory, the
defendants argue that the court should dismiss Counts One and Two for two reasons.
First, the defendants argue that Ferrara has not alleged sufficient facts to state a
plausible claim for relief because his allegations regarding conspiracy are conclusory,
vague, and general. See Mem. in Supp. at 4–11. Second, the defendants argue that
Ferrara failed to state a claim because a conspiracy does not exist between members of
a single corporation. See Mem. in Supp. at 11–12. The court agrees with the
defendants that Counts One and Two of the Amended Complaint fail to allege sufficient
facts to state a claim of conspiracy. The court dismisses Counts One and Two to the
extent that they purport to do so and grants Ferrara leave to replead. Because the court
dismisses on this ground, it is unnecessary to decide the defendants’ other argument.
However, should Ferrara sufficiently replead factual allegations supporting a claim for
conspiracy, the court notes that the intracorporate conspiracy doctrine should not likely
bar his claim.
“To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between
two or more state actors or between a state actor and a private entity; (2) to act in
concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of
that goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
The agreement can be tacit—as Ferrara argues in this case—rather than overt. See
Aho v. Anthony, 782 F. Supp. 2d 4, 7 (D. Conn. 2011); Plaintiff’s Memorandum in
Opposition to Motion to Dismiss (“Mem. in Opp.”) (Doc. No. 22) at 5. However, the
plaintiff must nonetheless show “some factual basis supporting a meeting of the minds,
such that the defendants entered into an agreement, express or tacit, to achieve the
9

unlawful end.” Aho, 783 F. Supp. 2d at 7. This can be done through circumstantial or
direct evidence, as the Second Circuit has recognized that “conspiracies are by their
very nature secretive operations.” Pangburn, 200 F.3d at 72.
At the motion to dismiss stage, the plaintiff must plead “factual content that
allows the court to draw the reasonable inference” that the above three elements are
satisfied. Ashcroft, 556 U.S. at 678. For conspiracy claims, “complaints containing only
conclusory, vague, or general allegations that the defendants have engaged in a
conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed;
diffuse and expansive allegations are insufficient, unless amplified by specific instances
of misconduct.” Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002)
(quoting Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993)). In Ciambriello,
the Second Circuit affirmed the dismissal of Ciambriello’s claims as conclusory because
he failed to provide “any details of time and place” or “to specify in detail the factual
basis necessary to enable [defendants] intelligently to prepare their defense.” Id.
In evaluating the sufficiency of the Amended Complaint, the court accepts all
factual allegations therein as true and draws all inferences in favor of Ferrara. See
Hemi Grp., 559 U.S. at 5; Jaghory, 131 F.3d at 329. While the court acknowledges that
this is a close case, the court concludes that Ferrara failed to allege a claim of
conspiracy because he has not alleged facts sufficient to support an inference that there
was an agreement between the defendants to do the unlawful acts.
In several sentences of the Amended Complaint, Ferrara explicitly mentions that
the defendants conspired or acted in concert to deprive him of his rights. See, e.g., Am.
Compl. at ¶ 58 (“Naccarato and subsequently Brockett in concert with the other

10

individual Defendants initiated retaliatory and unjustified internal investigations against
the Plaintiff.”); id. at ¶ 74 (“Defendants knew that their conduct was abusive, and
conspired to create a hostile work environment . . . .”); id. at ¶ 91 (“Defendants have
orchestrated a joint effort to force Plaintiff from his government employment . . . .”); see
also id. at ¶¶ 55, 78, 88, 90. However, these statements are conclusory, only stating
that the defendants have conspired without providing any facts to support a plausible
inference that they have done so. Merely stating that the defendants conspired or acted
in concert, without more, does not state a claim of conspiracy. See, e.g., Robbins v.
Cloutier, 121 Fed. App’x 423, 425 (affirming the dismissal of a complaint where plaintiffs
only alleged that an agreement took place without alleging facts to support that
inference). In particular, Ferrara has failed to allege facts indicating either an
agreement between the defendants or specific instances of misconduct in which the
defendants acted together.
In a few places, Ferrara comes close to stating facts from which the court could
infer an agreement between the defendants. For example, in Paragraph 64, Ferrara
states:
Plaintiff appealed the suspension to the EHBPC who initially
stated they would overturn the suspension, and exonerate
Plaintiff, then after an illegal “executive session” and then a
postponement of the meeting initiated by Chief Lennon and
Town Attorney Zullo the EHBPC improperly upheld the
suspension.
Am. Compl. at ¶ 64. However, this statement alone is insufficient because the
Amended Complaint does not state who was present at the executive session or what
was discussed. Asserting that the executive session was illegal and the ultimate
decision improper does not indicate that those present at the session reached any kind
11

of agreement, let alone one to engage in unlawful retaliation. Similarly, Ferrara alleges
that Sergeants Michalowski and Klarmon told newly appointed officers not to associate
with Ferrara. See, e.g., Am. Compl. at ¶ 42. Had Ferrara pled that the new officers
then agreed, either expressly or tacitly by in fact not associating with him, he may have
presented sufficient facts for the court to infer an agreement between Michalowski,
Klarmon, and the new officers. However, the Amended Complaint, as filed, falls short of
alleging the facts necessary to draw this inference.
Additionally, where Ferrara does plead specific instances of misconduct, he
alleges actions by individual defendants without indicating that the defendants acted
together or in support of each other. For instance, as evidence that the defendants used
unjustified disciplinary investigations to harass Ferrara, the Amended Complaint alleges
that in 2016, Sergeant Michalowski initiated a false complaint of unreasonable force
against him; that on March 29, 2016, Chief of Police Larrabee falsely suspended him for
ten days; and that Chief of Police Lennon initiated dubious internal investigations
against him. Id. at ¶ 60, 63, 69. None of these instances indicate that the defendants
acted in concert. Even where the Amended Complaint mentions multiple actors, it
merely asserts that both defendants engaged in the same types of actions, but does not
state that they did so in concert. See id. at ¶ 61 (“On numerous occasions, Michalowski
and Klarmon have engaged in harassing and threatening behavior against Plaintiff,
singled him out for discipline, and told other officers not to communicate or associate
with Plaintiff.”). While these facts are specific and may demonstrate an unconstitutional
injury, they do not support an inference of an agreement between the defendants, as is
required for a claim of conspiracy.

12

Finally, the Amended Complaint does allege that some defendants in their
supervisory roles failed to protect Ferrara from the retaliation of other defendants and
took no action on his complaints. For example, Ferrara alleges that he complained
about Officer Brockett’s harassment to Chief of Police Larrabee, who “rebuffed it and
refused to take action.” Id. at ¶ 46; see also id. at ¶ 64 (alleging that the EHBPC upheld
Larrabee’s improper suspension); id. at ¶ 43, 59 (alleging that Sergeant Klarmon and
Deputy Chief of Police Naccarato were promoted despite their harassment of Ferrara).
However, Ferrara has not pled specific facts indicating that the failure to protect him
from his harassers was motivated by a conspiratorial objective or the product of an
agreement to retaliate. Without more, the defendants’ failure to take supervisory action
is not sufficient to support an inference of an agreement to deprive Ferrara of his rights.
In sum, the Motion to Dismiss as to Counts One and Two is granted in part to the
extent that they claim to proceed under a theory of conspiracy. However, the court
recognizes the challenge that plaintiffs face in alleging a conspiracy because
“conspiracies are by their very nature secretive operations.” Pangburn, 200 F.3d at 72
(quoting Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994)). Therefore, Ferrara is
given leave to replead the Counts under a conspiracy theory if he can plead additional
facts to show an agreement between the defendants.4 The Motion to Dismiss as to
Counts One and Two is denied in part to the extent that it seeks to dismiss causes of
action against individual defendants.

4 The court need not decide the intracorporate conspiracy doctrine issue at this time because the
conspiracy claims under Counts One and Two have been dismissed on other grounds. However, should
Ferrara sufficiently replead, the court notes that the intracorporate conspiracy doctrine is not likely to bar
his claim.

13

B.

Municipal Liability Under Monell (Count Three)

Count Three of the Amended Complaint alleges that the Town of East Haven is
liable for the aforementioned deprivation of Ferrara’s First and Fourteenth Amendment
rights. See Am. Compl. at ¶ 101–05. The defendants argue that Count Three should
be dismissed because Ferrara failed to state a claim for municipal liability under Monell
v. Department of Social Services, 436 U.S. 658 (1978). The defendants argue that
Ferrara has not pled sufficient facts to give rise to an inference that any constitutional
injury was caused by an official policy of the Town. See Mem. in Supp. at 12–18. The
court disagrees and finds that the Amended Complaint has stated a claim for municipal
liability by alleging a custom or practice of retaliation that represented the official policy
of the Town.
Under section 1983, a municipality cannot be held liable under a theory of
respondeat superior, but can be sued if “the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” Monell, 436 U.S. at 690–91. To
bring a successful claim against a municipality, then, a plaintiff must prove: “(1) actions
taken under color of law; (2) deprivation of a constitutional or statutory right; (3)

The doctrine states that “there is no conspiracy if the conspiratorial conduct challenged is
essentially a single act by a single corporation acting exclusively through its own directors, officers, and
employers, each acting within the scope of his employment.” Herrmann v. Moore, 576 F.2d 453, 459 (2d
Cir. 1978). However, the doctrine only applies to “defendants who are acting within the scope of their
employment when conducting the alleged conspiracy. ‘An exception to the intracorporate conspiracy
doctrine applies to individuals within a single entity where they are pursuing personal interests wholly
separate and apart from the entity.’” Moulthrop v. Slavin, No. 3:16-CV-00220 (VAB), 2017 WL 421647, at
*7 (D. Conn. Jan. 31, 2017) (quoting Cowan v. City of Mount Vernon, 95 F. Supp. 3d 624, 650 (S.D.N.Y.
2015)). In this case, retaliation and harassment, including refusing to back up Ferrara on calls and filing
false complaints against him, are not likely to be authorized by or in the interest of the police department.
Rather, they undermine the safety of the department’s officers and the integrity of its disciplinary
processes. Thus, the defendants’ actions are likely to be outside the scope of their employment, and the
personal interest exception would permit the court to find that they were capable of conspiracy.

14

causation; (4) damages; and (5) that an official policy of the municipality caused the
constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008). At issue
in this case, the fifth element can be satisfied by showing “(1) the existence of an official
policy, (2) that an official with final policy-making authority took action or made a specific
decision that caused the deprivation, or (3) the deprivation was caused by an unlawful
practice amongst subordinate officials that was so widespread as to imply constructive
acquiescence by policy-making officials.” Rogers v. City of New Britain, 189 F. Supp.
3d 345, 358 (D. Conn. 2016). In effect, the plaintiff must show that, “through its
deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.”
Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997).
In this case, the Amended Complaint contains language that appeals to both the
theory that some of the defendants are policymakers whose decisions represent
municipal policy and the theory that the misconduct is so widespread as to constitute a
custom or practice of the municipality. See, e.g., Am. Compl. at ¶ 94 (“Maturo,
Larrabee, Lennon, and the Board of Police Commissioners as policy makers, and their
subordinates continued the retaliation against Plaintiff in furtherance of the practice,
custom and procedure of the Town of East Haven.”). The court concludes that Ferrara
has alleged sufficient facts to state a claim of municipal liability through a widespread
custom or practice. Therefore, the court need not address whether the defendants are
final policymakers or not.
Under a theory of municipal policy through custom or practice, Ferrara alleges
that the retaliation was so widespread as to establish a custom because the Town was
deliberately indifferent to the constitutional violations of its police department. See

15

Mem. in Opp. at 10–11. A custom can be established if the plaintiff shows that a
practice “was so persistent or widespread as to constitute a custom or usage with the
force of law, or that a discriminatory practice of subordinate employees was so manifest
as to imply the constructive acquiescence of senior policy-making officials.” Patterson
v. Cty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004). The plaintiff must show “that
the official’s inaction constitutes a deliberate choice.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 126 (2d Cir. 2004). To do so, the plaintiff may offer
circumstantial proof, but “the mere assertion that a municipality has such a policy is
generally insufficient to support such an inference.” Ulysses I & Co. v. Peer Morton, 11
Fed. App'x 14, 16 (2d Cir. 2001).
Cases addressing whether a custom or practice exists have employed the
language of both deliberate indifference and constructive acquiescence. The Second
Circuit has not been clear as to whether deliberate indifference is a separate theory
from constructive acquiescence or whether both describe how to prove an unofficial
custom, but it is clear that the analysis substantially overlaps. See Hardy v. Town of
Greenwich, No. 3:06CV833 MRK, 2008 WL 5117370, at *4 (D. Conn. Dec. 3, 2008) (“It
is not entirely clear from Second Circuit case law whether ‘constructive acquiescence’
and ‘deliberate indifference’ are separate legal theories for satisfying Monell, or whether
they are essentially two ways of describing the fact that a municipality had, in effect,
adopted an unofficial custom or policy of unconstitutional conduct.”); see also
Henderson v. Town of Greenwich, No. 3:03-CV-665, 2006 WL 3791385, at *6 (D. Conn.
Dec. 22, 2006) (analyzing constructive acquiescence and deliberate indifference as one
theory). Under both deliberate indifference and constructive acquiescence analysis, “the

16

relevant inquiry is whether municipal policymakers had either actual or constructive
knowledge of subordinates’ unconstitutional practices and nonetheless permitted them
to continue.” Hardy, 2008 WL 5117370, at *4. Therefore, the court proceeds using the
language of deliberate indifference5—as used by the parties in their memoranda—but
finds that constructive acquiescence analysis would lead to the same result.
The court finds that the Amended Complaint in this case alleges facts sufficient
to support the inference that the policymakers of the Town were deliberately indifferent
to the retaliation against Ferrara. One way to satisfy deliberate indfference is to allege
“repeated complaints of civil rights violations” and that “the complaints are followed by
no meaningful attempt on the part of the municipality to investigate or to forestall further
incidents.” Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). Ferrara
pleads various instances of retaliation from fellow officers, including harassing
comments about being a “rat,” a threatening poster, refusal to back him up on calls, and
filing of false complaints against him. See Am. Compl. at ¶¶ 39–45, 47–48, 60–63. He
alleges that he filed complaints about such harassment up the chain of command, but
no action was taken. See id. at ¶¶ 46, 64, 71. While the court acknowledges that these
allegations are not particularly detailed, Ferrara does cite two specific instances. See
id.
Additionally, all of this took place in the context of a DOJ investigation that found
and alerted Mayor Maturo and other Town of East Haven policymakers to the fact that

5 Deliberate indifference is most often discussed in the context of the municipality’s failure to train
or supervise subordinates, see, e.g., City of Canton, Ohio v. Harris, 489 U.S. 378 (1989), but the
language in Amnesty America v. Town of West Hartford applies deliberate indifference more broadly to
the “constitutional deprivations caused by subordinates.” 361 F.3d at 125. Amnesty America discusses
deliberate indifference as a means for finding that policymakers effectively ratified their subordinates’
misconduct because of the policymakers’ inaction. Id.

17

the EHPD suffered from a problem of retaliation. See id. at ¶¶ 24–29. The DOJ found
that the EHPD “created a hostile and intimidating environment for persons who wished
to cooperate with [their] investigation” and tasked the EHBPC with “expressly
prohibit[ing] all forms of retaliation, whether subtle or direct, including discouragement,
intimidation, coercion, or adverse action.” Id. at ¶¶ 26, 65. The DOJ’s findings included
conduct similar to that experienced by Ferrara, such as notes outside offices and via the
police union bulletin board about “rats” in the EHPD. Id. at ¶ 27. Therefore, the
policymakers acting for the Town were already aware of a problem of retaliation that
went beyond Ferrara’s individual case, and Ferrara alleged multiple incidents against
him consistent with that existing problem. The court finds that the failure to take action
in the face of that knowledge is deliberate indifference sufficient to plausibly allege a
custom or practice of retaliation.
Accordingly, Ferrara has pled sufficient facts to state a claim of municipal liability.
The Motion to Dismiss Count Three is denied.
C.

Town’s Liability for Negligence (Count Five)

Count Five alleges that the Town of East Haven is liable for damages under
Conn. Gen. Stat. § 52-557n for harm done to Ferrara as a result of the negligence of the
Town’s employees and officers. See Am. Compl. at ¶ 107. The defendants argue that
Ferrara failed to state a claim against the Town under Count Five because the
Amended Complaint only pleads facts showing that the defendants acted intentionally,
not negligently, and Conn. Gen. Stat. § 52-557n does not provide a cause of action for
intentional conduct of a municipality’s employees. See Mem. in Supp. at 18–20. The
court agrees with the defendants, and Count Five is dismissed.

18

Conn. Gen. Stat. § 52-557n(a)(1) states: “[A] political subdivision of the state
shall be liable for damages to person or property caused by . . . [t]he negligent acts or
omissions of such political subdivision or any employee, officer or agent thereof acting
within the scope of his employment or official duties . . . .” Conn. Gen. Stat. § 52557n(a)(1) (2017). This statute abrogates the common law immunity of municipalities
and provides plaintiffs a direct cause of action against a municipality. See Spears v.
Garcia, 263 Conn. 22, 29 (2003); Ellison v. Macci, No. HHDCV156062155S, 2016 WL
3202486, at *7 (Conn. Super. Ct. May 17, 2016) (citing Spears). However, the statute
also provides an exception that “a political subdivision of the state shall not be liable for
damages to person or property caused by . . . [a]cts or omissions of any employee,
officer, or agent which constitute criminal conduct, fraud, actual malice or willful
misconduct.” Conn. Gen. Stat. § 52-557n(a)(2) (2017). Connecticut law treats
“willfulness” as “synonymous with intentional.” Pane v. City of Danbury, 267 Conn. 669,
685 (2004) (internal quotation marks omitted), overruled on other grounds by Grady v.
Town of Somers, 294 Conn. 324 (2009).
The defendants argue that the Amended Complaint alleges actions that are
intentional and therefore not covered by the statute. See Mem. in Supp. at 18–19. For
example, the Amended Complaint alleges, “For the reasons set forth above, the injuries
to the Plaintiff were the direct and proximate cause of the intentional actions of the
Defendants. Am. Compl. at ¶ 79. As recited above, these intentional actions included
leaving an offensive cartoon outside of Ferrara’s locker, ordering other officers not to
associate with him, threatening him with a gun to his chest, and filing false complaints

19

against him.6 See id. at ¶ 39–45, 60–63. The defendants focus particularly on the fact
that Count Five incorporates all prior paragraphs, including Count Four, which alleges
intentional infliction of emotional distress. See Mem. in Supp. at 19–20; see also Am.
Compl. at ¶ 102 (“The Defendants’ [sic] intended to inflict emotional distress, or knew
that or should have known that emotional distress was a likely result of their conduct.”).
These allegations cannot serve as the basis for liability under Conn. Gen. Stat. § 52557n because they include only willful misconduct not covered by the statute.
Bringing a claim for intentional tort does not itself preclude a plaintiff from also
stating sufficient facts to bring a claim in negligence, as it is possible for a defendant to
commit some acts intentionally and others negligently. However, Ferrara does not
allege facts that would support a cause of action for negligence. In the few places
where the Amended Complaint employs language sounding in negligence—for
example, allegations stating that the defendants should have known the consequences
or illegal nature of their actions—these statements are conclusory without support from
factual allegations, and Ferrara then goes on to argue that the actions were intentional.
See Am. Compl. at ¶ 95 (“The Plaintiff was charged with misconduct that the
Defendants know or should have known were are [sic] illegal and supplanted false
information and omitted valid information from their records and documents in order to

6

In the different context of considering qualified immunity for municipal officers, at least one court
in this District has found it reasonable for a jury to consider adverse employment actions taken in
retaliation for exercising First Amendment rights to be intentional acts. See Russo v. City of Hartford, 419
F. Supp. 2d 134, 150 (D. Conn. 2006) (“The court has found that Russo presented sufficient evidence
from which the jury reasonably, and without serious error, could have concluded that Croughwell
undertook adverse employment actions against Russo with the motivation of retaliating against him for
exercising First Amendment rights. In light of the jury’s liability finding on the section 1983 claims against
Croughwell, the jury had to have found that Croughwell acted with intent to discriminate against Russo for
his exercise of his First Amendment rights.”).

20

deny Plaintiff the rights, customs, practices and fairness under Connecticut State
Statutes . . . .”); see also id. at ¶ 72, 102. Accordingly, these few conclusory statements
fail to state a claim for negligence against the Town.
Ferrara in his Opposition responds to the defendants’ Motion to Dismiss Count
Five by arguing that the defendants’ actions are not subject to qualified immunity
because either they are ministerial rather than discretionary or, if discretionary, they fall
under the imminent harm exception. See Mem. in Opp. at 12–15. In doing so, Ferrara
misunderstands the defendants’ argument. The defendants’ Motion to Dismiss does not
depend on whether their actions are considered ministerial or discretionary. The
distinction is only relevant when considering immunity for negligent acts. Rather, Conn.
Gen. Stat. § 52-557n makes clear that a political subdivision is not liable for acts that
constitute willful misconduct. Conn. Gen. Stat. § 52-557n(a)(2)(B) (2017). “The
provision makes no distinction between ministerial and discretionary acts. When a
plaintiff alleges an intentional tort that is governed by the immunity provided in § 52557n(a)(2)(A), it is immaterial whether the acts are ministerial or discretionary.” Avoletta
v. City of Torrington, 133 Conn. App. 215, 225 (2012). Therefore, Ferrara’s response is
irrelevant here, and he has proffered no argument in his Opposition indicating that or
how the Amended Complaint sufficiently alleges a cause of action in negligence.
Accordingly, Count Five is dismissed.
While the defendant Town of East Haven did not move to dismiss Count Four for
IIED, the argument raised against Count Five also relates to Count Four. Specifically,
Conn. Gen. Stat. § 52-557n precludes a plaintiff from bringing a claim of intentional
infliction of emotional distress against a town. Miner v. Town of Cheshire, 126 F. Supp.

21

2d 184, 194 (D. Conn. 2000); see also Pane, 267 Conn. at 685. Count Four of the
Amended Complaint alleges IIED without specifying against which defendants. See
Am. Compl. at ¶ 101–05. The court therefore construes Count Four as only proceeding
against the individual defendants in their personal capacity, not against the Town of
East Haven.
VI.

CONCLUSION
For the above-stated reasons, the Motion to Amend (Doc. No. 24) is GRANTED.

Accordingly, the court directs Ferrara to docket the Proposed Amended Complaint.
When docketed, it will be the operative complaint and will be referred to as the
“Amended Complaint.”
The Motion to Dismiss (Doc. No. 19) is GRANTED IN PART AND DENIED IN
PART. Specifically, it is GRANTED as to Count Five and DENIED as to Count Three.
To the extent that Counts One and Two proceed under a theory of conspiracy, the
Motion to Dismiss is GRANTED, and Ferrara is given leave to replead if he can allege
sufficient facts to state a claim of conspiracy. To the extent that Counts One and Two
proceed under a theory of direct liability under section 1983 without relying on
conspiracy, the Motion to Dismiss is DENIED.
SO ORDERED.
Dated at New Haven, Connecticut this 25th day of September, 2017.

/s/ Janet C. Hall __________
Janet C. Hall
United States District Judge

22