Pace v. Waterbury Police Department et al

Filing 9

RECOMMENDED RULING. For the reasons set forth in the attached Ruling, the Court recommends that the 1 Complaint be DISMISSED, in part, pursuant to 28 U.S.C. §1915(e)(2)(B)(ii). 11 Pages. Objections due by 4/26/2017. Signed by Judge Sarah A. L. Merriam on 4/12/2017. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
JOHN PACE
:
:
v.
:
:
WATERBURY POLICE DEPARTMENT, :
et al.
:
:
------------------------------x

Civ. No. 3:17CV00426(DJS)

April 12, 2017

RECOMMENDED RULING
This matter is before the Court on an initial review of the
Complaint [Doc. #1] and Motion for Leave to Proceed in Forma
Pauperis [Doc. #2] filed by self-represented plaintiff John Pace
(“plaintiff”). For the reasons set forth below, plaintiff’s
Motion for Leave to Proceed in Forma Pauperis [Doc. #2] is
GRANTED. Upon review, the Court recommends that the Complaint
[Doc. #1] be DISMISSED, in part, pursuant to 28 U.S.C.
§1915(e)(2)(B)(ii).
I.

Background
Plaintiff brings this action pursuant to 42 U.S.C. section

1983 against defendants Waterbury Police Department; John Doe
Officer 1; John Doe Officer 2; and Sin City Nightclub. See Doc.
#1 at 1. The allegations in plaintiff’s Complaint stem from an
incident on July 6, 2014, at the defendant Sin City Nightclub
(“Sin City”) in Waterbury, Connecticut. See generally Doc. #1.
Plaintiff claims that he was attending a concert at Sin City.
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See id. at 1. Upon stepping outside to smoke a cigarette,
plaintiff was approached by Sin City security guards, who
informed plaintiff that he was not permitted to smoke where he
was standing. See id. Plaintiff alleges that he was then
“[s]uddenly without warning” pushed down the steps by defendants
John Doe Officer 1 and John Doe Officer 2 (collectively, “John
Doe Officers”). Id. Plaintiff claims that he was subjected to
excessive force by the John Doe Officers during the course of
his arrest, and that said officers refused plaintiff’s request
for an ambulance. See id. at 2. Plaintiff alleges that the Sin
City security guards witnessed the incident but did not call for
medical assistance for plaintiff. See id. Plaintiff was placed
in the back of a police wagon and brought to the police station.
See id. Once at the station, plaintiff notified the officers of
his injuries but was not provided medical assistance. See id.
Plaintiff claims that he was bleeding and in pain for two hours.
See id. Plaintiff seeks compensatory and punitive damages, and
attorney’s fees. Simultaneously with his Complaint, plaintiff
filed a Motion for Leave to Proceed in Forma Pauperis. [Doc.
#2].
II.

Motion for Leave to Proceed in Forma Pauperis [Doc. #2]
Plaintiff has filed a motion seeking to proceed without

payment of fees and costs, along with a financial affidavit.
[Doc. #2]. Plaintiff asserts that he is unable to pay fees and
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costs, as he has no monthly income. See id. at 3-5. Plaintiff
also asserts that he has no assets, cash or securities on hand.
See id. at 3-4. At this stage, such allegations are sufficient
to establish that the plaintiff “is unable to pay” the ordinary
filing fees required by the Court. 28 U.S.C. §1915(a)(1).
Accordingly, the plaintiff’s Motion for Leave to Proceed in
Forma Pauperis [Doc. #2] is GRANTED.
III. Initial Review
A.

Standard of Review

The determination of whether an in forma pauperis plaintiff
should be permitted to proceed under 28 U.S.C. §1915 involves
two separate considerations. The Court must first determine
whether the plaintiff may proceed with the action without
prepaying the filing fee in full. See 28 U.S.C. §1915(a). The
Court has already addressed that issue. Second, section 1915
provides that “the court shall dismiss the case at any time if
the court determines that” the case “is frivolous or malicious”
or “fails to state a claim on which relief may be granted[.]” 28
U.S.C. §1915(e)(2)(B)(i),(ii). In the interest of efficiency,
the Court reviews complaints under this provision shortly after
filing to determine whether the plaintiff has stated a
cognizable, non-frivolous claim.
The Court construes complaints filed by self-represented
plaintiffs liberally. See Haines v. Kerner, 404 U.S. 519, 520
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(1972). The Court exercises caution in dismissing a case under
section 1915(e) because a claim that the Court perceives as
likely to be unsuccessful is not necessarily frivolous. See
Neitzke v. Williams, 490 U.S. 319, 329 (1989). In addition,
“unless the court can rule out any possibility, however unlikely
it might be, that an amended complaint would succeed in stating
a claim[,]” the Court will permit a self-represented plaintiff
who is proceeding in forma pauperis to file an amended complaint
that attempts to state a claim upon which relief may be granted.
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999).
B.

Discussion

Plaintiff brings this action pursuant to section 1983,
which creates a federal cause of action against any person who,
under color of state law, deprives a citizen or a person within
the jurisdiction of the United States of any right, privilege,
or immunity secured by the Constitution or laws of the United
States. See 42 U.S.C. §1983. The Court construes plaintiff’s
complaint as asserting claims of: (1) excessive force in
violation of the Fourth Amendment; (2) deliberate indifference
to medical needs in violation of plaintiff’s Fourteenth
Amendment due process rights; (3) intentional infliction of
emotional distress, in violation of state law; and (4)
negligence, in violation of state law.

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1. John Doe Officer Defendants
The Court turns first to plaintiff’s claims against the
John Doe Officers. Plaintiff alleges that, during the course of
his arrest, the John Doe Officers knocked him down the stairs,
grabbed him by the throat, threw him to the ground, kicked him,
kneed him, and slammed his head and chin against the ground
repeatedly. See Doc. #1 at 1-2. The Court finds that plaintiff
has sufficiently alleged a claim of excessive force in violation
of plaintiff’s Fourth Amendment rights against the John Doe
Officers.
Plaintiff further claims that the officers refused his
request for an ambulance at the scene; this request was again
refused at the police station. See id. at 2. “[T]he Due Process
Clause requires the government to provide medical care to
persons injured while being apprehended by police.” Zipoli v.
Caraballo, 603 F. Supp. 2d 399, 404 (D. Conn. 2009) (citing City
of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). This
“constitutional obligation is met by seeing that the arrestee is
taken promptly to a hospital that provides the treatment
necessary for his injury.” Id. at 404 (quotation marks and
citation omitted). Thus, it is the due process clause of the
Fourteenth Amendment, not the Eighth Amendment, that is
implicated by plaintiff’s allegations that he was denied medical
attention on the date of the alleged incident. See Weyant v.
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Okst, 101 F.3d 845, 856 (2d Cir. 1996) (“When [plaintiff] needed
medical attention, he was a pretrial detainee, not a person who
had been convicted, and hence the Eighth Amendment did not
apply.” (citations omitted)); see also Demski v. Town of
Enfield, No. 3:14CV01568(VAB), 2017 WL 486262, at *9 (D. Conn.
Feb. 6, 2017) (“A detainee who has not yet been convicted may
bring a Section 1983 claim of deliberate indifference to medical
needs under the Fourteenth Amendment, while a convicted prisoner
may bring such a claim under the Eighth Amendment.”).
Accordingly, the Court construes plaintiff’s Complaint to allege
a claim against the John Doe Officer defendants of deliberate
indifference to plaintiff’s medical needs, in violation of his
Fourteenth Amendment due process rights.
As the Complaint contains no allegation that plaintiff was
denied medical attention post-conviction, the Court recommends
that plaintiff’s claim of cruel and unusual punishment in
violation of his Eighth Amendment rights be DISMISSED, without
prejudice. Plaintiff may proceed against John Doe Officer 1 and
John Doe Officer 2 on his claims of Fourth Amendment excessive
force, Fourteenth Amendment deliberate indifference to medical
needs, and intentional infliction of emotional distress.
However, plaintiff fails to identify the John Doe Officer
defendants so that the United States Marshals may properly
effectuate service upon them. Accordingly, on or before May 26,
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2017, plaintiff shall file an amended complaint or other notice
to the Court which specifically identifies John Doe Officer 1
and John Doe Officer 2 by name. Failure to do so may result in
the dismissal of the Complaint with respect to these John Doe
Officer defendants.
2. Waterbury Police Department
Plaintiff also names the Waterbury Police Department as a
defendant, and seeks to hold it liable for “the municipal
policy, procedure, and custom of use of excessive force and
their officers not making reports or obtaining medical attention
when force is used.” Doc. #1 at 2. Plaintiff further alleges
that the Waterbury Police Department “has a custom of turning a
blind eye to underage drinking at night clubs in order to
sustain overtime shifts and details for its officers at clubs.”
Id.
The Waterbury Police Department is not amenable to suit
under section 1983. “Because a municipal police department is
not an independent legal entity, it is not subject to suit under
section 1983.” Nicholson v. Lenczewski, 356 F. Supp. 2d 157, 164
(D. Conn. 2005). As the Waterbury Police Department “is neither
a municipality nor a ‘person’ that can be sued under §1983[,]”
Jackson v. Waterbury Police Dep’t, No. 3:11CV642(GWC), 2015 WL
5251533, at *3 (D. Conn. Sept. 8, 2015), the Court recommends
that plaintiff’s claims against this defendant be DISMISSED,
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with prejudice. See also Jones v. Waterbury Police Dep’t, No.
3:04CV2137(MRK), 2005 WL 1185723, at *2 (D. Conn. May 12, 2005)
(dismissing claims against Waterbury Police Department pursuant
to 28 U.S.C. §1915(e)(2)(B)(i) as it is not subject to suit
under 42 U.S.C. section 1983).1
3. Defendant Sin City
Finally, plaintiff alleges that defendant Sin City
“exploits minors for financial gain” and that its security
officers “failed to call an ambulance for the plaintiff who was
brutally beaten in front of them on their property.” Doc. #1 at
2. “Private parties are not proper defendants in a Section 1983
action unless the private parties were acting under color of
state law.” Jae Soog Lee v. Law Office of Kim & Bae, PC, 530 F.
App’x 9 (2d Cir. 2013); see also Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49–50 (1999) (“The under-color-of-statelaw element of §1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” (quotation
marks and citations omitted)).
There are situations in which a court may treat the actions

The Court notes that plaintiff has alleged the existence of a
municipal policy relating to plaintiff’s alleged constitutional
deprivations. See Monell v. Dept. of Soc. Servs. of the City of
N.Y., 436 U.S. 658, 694 (1978). However, the City of Waterbury
is not a defendant to this action. Plaintiff may file an amended
complaint that names the City of Waterbury as a defendant, if
plaintiff wishes to pursue a claim of municipal liability.
1

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of private individuals as state action for the purposes of
section 1983, however, this case does not appear to present such
an instance. Plaintiff has made no allegations that defendant
Sin City acted in concert with the John Doe Officer defendants,
nor does plaintiff allege that Sin City acted under color of
state law. See Betts v. Shearman, 751 F.3d 78, 84-85 (2d Cir.
2014). Accordingly, any claims against defendant Sin City
pursuant to section 1983 must be dismissed. However, because the
Court cannot “rule out any possibility” that an amendment of the
claims against private defendant Sin City would be futile, the
Court recommends that these claims be DISMISSED, without
prejudice.
The Court also construes plaintiff’s Complaint to allege
state law claims of negligence and intentional infliction of
emotional distress as to defendant Sin City. As plaintiff has
alleged cognizable federal claims against other defendants that
“form part of the same case or controversy under Article III of
the United States Constitution,” the Court will exercise
supplemental jurisdiction over these claims. 28 U.S.C. §1367(a).
IV.

Conclusion
For the reasons set forth herein, the Court GRANTS

plaintiff’s Motion for Leave to Proceed in Forma Pauperis [Doc.
#2]. The Court recommends that plaintiff’s Complaint be
DISMISSED, in part. Specifically, the Court recommends that: (1)
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all claims against the Waterbury Police Department be dismissed
with prejudice; (2) plaintiff’s claim of cruel and unusual
punishment pursuant to the Eighth Amendment be dismissed,
without prejudice; and (3) any claims against defendant Sin City
Nightclub pursuant to 42 U.S.C. §1983 be dismissed, without
prejudice.
Plaintiff may proceed on his current Complaint with his
claims against John Doe Officer 1 and John Doe Officer 2 of
excessive force, deliberate indifference to medical needs, and
intentional infliction of emotional distress; and with his
claims against Sin City Nightclub of negligence and intentional
infliction of emotional distress. As noted above, plaintiff must
file an amended complaint or a notice to the Court identifying
the John Doe Officer defendants by name on or before May 26,
2017, or his Complaint may be dismissed in its entirety. If
plaintiff elects to file an amended complaint, the complaint
should also remove the claims that have been dismissed with
prejudice. If plaintiff wishes to proceed on his municipal
liability claim, he must file an amended complaint naming the
City of Waterbury as a defendant.
This is a recommended ruling. See Fed. R. Civ. P. 72(b)(1).
Any objections to this recommended ruling must be filed with the
Clerk of the Court within fourteen (14) days of being served
with this order. See Fed. R. Civ. P. 72(b)(2). Failure to object
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within fourteen (14) days will preclude appellate review. See 28
U.S.C. §636(b)(1); Rules 72, 6(a) and 6(d) of the Federal Rules
of Civil Procedure; D. Conn. L. Civ. R. 72.2; Small v. Secretary
of H.H.S., 892 F.2d 15 (2d Cir. 1989) (per curiam); F.D.I.C. v.
Hillcrest Assoc., 66 F.3d 566, 569 (2d Cir. 1995).
SO ORDERED at New Haven, Connecticut, this 12th day of
April, 2017.

/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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