Chase v. Nodine's Smokehouse, Inc. et al
Filing
66
ORDER granting in part and denying in part 34 Motion to Dismiss. For the reasons stated in the attached Memorandum of Decision, Counts 15, 18, 20, 21, 22 and 24 are DISMISSED. Additionally, Counts 14 and 17 are dismissed as to Sergeant Penney. P laintiff's section 1983 personal capacity and state and common law claims for false and arrest and malicious prosecution (Counts 14, 16, 17, and 19), as well as her intentional infliction of emotional distress claim (Count 23) will proceed. Signed by Judge Vanessa L. Bryant on 1/22/2019. (Bryan, Kelsey)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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NICOLE CHASE,
Plaintiff,
v.
NODINE’S SMOKEHOUSE, INC.,
CALVIN NODINE,
TOWN OF CANTON,
JOHN COLANGELO,
ADAM GOMPPER,
MARK J. PENNEY,
CHRISTOPHER ARCIERO,
Defendants.
No. 3:18-CV-00683 (VLB)
January 22, 2019
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
MOTION TO DISMISS [DKT. 34]
Plaintiff Nicole Chase brings the instant action alleging claims arising out of
her arrest by the Canton Police following a complaint of sexual assault by her thenemployer, Defendant Calvin Nodine. Ms. Chase brings thirteen claims against
Nodine’s Smokehouse and Calvin Nodine (the “Nodine Defendants”), and ten
claims against the Town of Canton, Detective John Colangelo, Officer Adam
Gompper, Sergeant Mark J. Penney, and Chief Christopher Arciero (the “Town
Defendants”), including false arrest, malicious prosecution, denial of equal
protection, denial of substantive due process, intentional infliction of emotional
distress, and negligent infliction of emotional distress. See [Dkt. 1-1 (Notice of
Removal, Att. 1 (Compl.))].
1
The Town Defendants now move to dismiss all claims against them under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief
can be granted. For the following reasons, the motion is granted in part and denied
in part.
Background
For the purposes of the motion to dismiss, the court assumes the following
facts set forth in the Complaint to be true.1 Ms. Chase started working at Nodine’s
Smokehouse, Inc. (“Nodine’s Smokehouse”) in or about September 2016. [Dkt. 11 ¶ 7]. She initially worked at the Nodine’s Smokehouse factory, and later assisted
with Nodine’s Restaurant.
Id. ¶ 28. Nodine’s Restaurant opened in or about
November 2016. Id. ¶ 29.
For most of the time Ms. Chase worked at Nodine’s Restaurant, Calvin
Nodine, the owner, would come by the restaurant regularly but usually would not
1
A court considering a motion to dismiss may consider “the factual allegations in
plaintiffs’ amended complaint, which are accepted as true, . . . documents attached
to the complaint as an exhibit or incorporated in it by reference, . . . matters of
which judicial notice may be taken, or . . . documents either in plaintiffs’ possession
or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am.
Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). The Court agrees with the Town
Defendants that the two exhibits attached to Plaintiff’s Opposition Memorandum,
transcripts of the police interviews of Nicole Chase and Calvin Nodine, [Dkt. 43-2
(Opp’n Ex. 1, Tr. of Nodine Interview); Dkt. 43-3 (Opp’n Ex. 2, Tr. of Chase
Interview)], do not fall into any of these categories because they were not attached
to or incorporated into the Complaint by reference, they are not matters of which
the Court may take judicial notice under Federal Rule of Evidence 201 because they
are unofficial transcripts of non-public interviews, and Plaintiff did not rely upon
them in bringing suit, as evidenced by the fact that they were not quoted or
referenced in the Complaint. To consider the transcripts would require the Court
to treat the motion as one for summary judgment under Rule 56 and allow
Defendants the opportunity to conduct necessary discovery and submit
corresponding pertinent materials. The Court therefore does not take the two
transcripts into consideration in deciding the Motion to Dismiss.
2
stay for very long. Id. ¶¶ 14, 30. When he was there, Mr. Nodine “would engage in
inappropriate conduct that made [Ms. Chase] feel uncomfortable.” Id. ¶ 31. For
example, Mr. Nodine, on more than one occasion, purposefully dropped his eye
glasses on the floor and directed Ms. Chase to pick them up. Id. When she would
do as directed, he would stare down her shirt.
Id.
Mr. Nodine would make
suggestive comments and jokes. Id. He would also stare at Ms. Chase and follow
her around. Id. Mr. Nodine’s behavior made Ms. Chase uncomfortable, but she
“put up with it because he was never around in the restaurant very long.” Id. ¶ 32.
Mr. Nodine started spending more time at Nodine’s Restaurant in April 2017.
Id. ¶ 33. On May 6, 2017, Mr. Nodine was at the restaurant while Ms. Chase was
working.
Id. ¶¶ 35-36.
That day, Mr. Nodine made multiple offensive sexual
comments directed at Ms. Chase, which she ignored. Id. ¶¶ 37, 39-40. Mr. Nodine
also made unwanted and uncomfortable physical contact with Ms. Chase multiple
times that day, including hugging and kissing her on the cheek and later coming
up behind her and squeezing her body and her buttocks. Id. ¶¶41-44. At the end
of the day, Mr. Nodine pulled Ms. Chase into the men’s bathroom, locked the door,
and forced Ms. Chase to perform oral sex on him. Id. ¶¶ 45-46.
After the incident, Ms. Chase texted her former general manager at Nodine’s
Restaurant and told him of the assault, leaving out the detail that Mr. Nodine had
successfully forced her to perform oral sex on him. Id. ¶¶ 48, 101. He told her to
report it to the police. Id. Ms. Chase told her mother about the assault that night
as well, again leaving out the oral sex detail. Id.
3
The next day, May 7, 2017, Ms. Chase went with her mother to the Canton
Police Department to report the assault. Id. ¶¶ 49, 60. Defendant police officer
Adam Gompper met with Ms. Chase, who had her relate the details of the assault
in the lobby of the Canton Police Department. Id. ¶ 64. Ms. Chase told Officer
Gompper that she was not sure if she wanted to press charges at that time, and
Officer Gompper told her to come back and make a written statement if she decided
to pursue charges. Id. ¶ 70. Ms. Chase returned to the Police Department on
Thursday, May 11, 2017, and spoke to Officer Gompper again, who typed up her
statement and had her sign it. Id. ¶ 71. Ms. Chase did not specify that Mr. Nodine
had forced her to perform oral sex during either of the meetings or in the written
statement.
Id. ¶ 101.
Two other Nodine’s Restaurant employees provided
statements to the police corroborating Ms. Chase’s account of Mr. Nodine’s other
behavior towards her. Id. ¶¶ 74-76.
According to Ms. Chase’s arrest warrant, Officer Gompper and Defendant
Detective John Colangelo interviewed Mr. Nodine on May 18, 2017. Id. ¶ 81. Mr.
Nodine had his attorney present and, while he initially denied any sexual contact
with Ms. Chase, after conferring with his attorney, he told Officer Gompper and
Detective Colangelo that Ms. Chase had performed consensual oral sex on him on
one occasion. Id. ¶¶ 82-83. The Police Department did not update Ms. Chase
following Mr. Nodine’s interviews as Officer Gompper had said they would. Id. ¶
84. After trying to reach Officer Gompper multiple times to get an update on her
case, Ms. Chase was able to speak with him and he informed her that the
Department was still investigating the matter. Id. ¶ 85-86.
4
On June 21, 2017, Ms. Chase reported to the Police Department at their
request. Id. ¶¶ 87-88. She met with Detective Colangelo, whom she was meeting
for the first time, in an interview room. Id. ¶¶ 89-90. Detective Colangelo asked Ms.
Chase about her story and then pressed her for more information. Id. ¶¶ 92-97.
Detective Colangelo told Ms. Chase that Mr. Nodine had told them she had
performed consensual oral sex on him. Id. ¶ 100. He also told her that Mr. Nodine
had taken a lie detector test, leaving out that he had failed that test and then refused
to take another test. Id. ¶¶ 98-99, 136. Ms. Chase felt that Detective Colangelo was
being aggressive and was intimidated by him. Id. She became emotional and,
despite being ashamed and uncomfortable with explaining the specifics, she told
Detective Colangelo that Mr. Nodine forced her to perform oral sex and that it was
not consensual. Id. ¶¶ 102-104. Thereafter, Detective Colangelo focused on Ms.
Chase’s prior omission of these details and questioned whether Mr. Nodine had
sexually assaulted her. Id. ¶ 105.
Ms. Chase told Detective Colangelo about the text messages she sent her
former manager shortly after the assault, and Detective Colangelo asked that she
provide them with copies of the messages. Id. ¶¶ 106-107. Detective Colangelo
told Ms. Chase that she had made a false statement and asked if she wanted to
revise her previous statement. Id. ¶¶ 108-109. While denying that her statement
had been false, Ms. Chase told Detective Colangelo that she would like to revise
her statement but would like to speak with a lawyer first. Id. Several days later,
Ms. Chase called Detective Colangelo to try to coordinate a time to come in and
amend her statement but she was unable to reach him. Id. ¶ 110. The Court infers
5
Ms. Chase to allege that she left messages asking Detective Colangelo to call her
back but he failed to return her calls.
According to Ms. Chase’s arrest warrant, Detective Colangelo signed the
warrant application for the arrest of Ms. Chase for making a false statement on July
7, 2017, 16 days after he interviewed her. Id. ¶ 111. Around July 13, 2017, Ms.
Chase went to the police department to drop off copies of the text messages and
again asked to speak with Detective Colangelo about revising her statement, but
he was not available. Id. ¶¶ 112-113. Ms. Chase thereafter emailed Detective
Colangelo multiple times about revising her statement, the second time attaching
revisions to be incorporated into her original statement. Id. ¶¶ 116-118. On August
10, 2017, Detective Colangelo responded to Ms. Chase’s emails. Id. ¶ 119. In his
response, Detective Colangelo indicated that he did not know she had wanted to
give a new statement but stated that he had documented the change in her story
and had provided the case to the court for review. Id. He further indicated that the
case was still with the State’s Attorney’s office and that he hoped to have next
steps shortly. Id.
The Complaint alleges that the Assistant State’s Attorney signed the warrant
application on August 30, 2017, after Ms. Chase’s many attempts to revise her
statements and after Detective Colangelo finally acknowledged those requests and
represented to Ms. Chase that he had documented the change. Id. ¶ 121. The
warrant was signed by the court on September 6, 2017. Id. ¶ 122. On September
8, 2017, Detective Colangelo arrested Ms. Chase for making a false statement in
violation of Connecticut General Statute §53a-57b and she was thereafter arraigned
6
on the charge. Id. ¶¶ 123, 126. On November 6, 2017, the State’s Attorney’s Office
entered an unconditional nolle prosequi and the case was dismissed. Id. ¶ 127.
On April 10, 2018, Ms. Chase filed this lawsuit in Connecticut Superior Court,
Judicial District of Hartford. Case No. HHD-CV-17-5049825-S. On April 20, 2018,
the Town Defendants—the Town of Canton, Detective Colangelo, Detective
Gompper, Sergeant Penney, and Town of Canton Chief of Police Christopher
Arciero—removed the case to federal court. See [Dkt. 1].
Ms. Chase’s Complaint alleges violations of the Connecticut Fair
Employment Practices Act for harassment, hostile work environment, retaliation,
and aiding and abetting; violations of Title VII for harassment, hostile work
environment, and retaliation; negligent infliction of emotional distress; intentional
infliction of emotional distress; intentional and/or reckless assault and battery;
negligent assault and battery; invasion of privacy; false imprisonment; intimidation
based on bigotry or bias; and malicious prosecution against the Nodine
Defendants.
[Dkt. 1-1 ¶¶ 140-219].
It also alleges false arrest; malicious
prosecution; denial of equal protection; denial of substantive due process;
intentional infliction of emotional distress; and negligent infliction of emotional
distress against the Town Defendants. Id. ¶¶ 220-279. On July 24, 2018, the Town
Defendants moved to dismiss the claims against them. [Dkt. 34 (Mot. Dismiss)].
Legal Standard for a Motion to Dismiss
To survive a motion to dismiss, a plaintiff must plead “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
7
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). In
considering a motion to dismiss for failure to state a claim, the Court should follow
a “two-pronged approach” to evaluate the sufficiency of the complaint. Hayden v.
Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can choose to begin by
identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). “At the
second step, a court should determine whether the ‘wellpleaded factual
allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’”
Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations
omitted).
In general, the Court’s review on a motion to dismiss pursuant to Rule
12(b)(6) “is limited to the facts as asserted within the four corners of the complaint,
the documents attached to the complaint as exhibits, and any documents
incorporated by reference.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191
(2d Cir. 2007). The Court may also consider “matters of which judicial notice may
be taken” and “documents either in plaintiffs’ possession or of which plaintiffs had
knowledge and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d
142, 150 (2d Cir. 1993); Patrowicz v. Transamerica HomeFirst, Inc., 359 F. Supp. 2d
140, 144 (D. Conn. 2005).
8
Discussion
A. § 1983 Official Capacity Claims (Counts 15, 18, and 21)
The Complaint brings three claims against the individual Town Defendants
(Colangelo, Gompper, Penney, and Arciero) in their official capacities—Count 14
for § 1983 false arrest, Count 18 for § 1983 malicious prosecution, and Count 21 for
§ 1983 denial of equal protection. Suits against municipal officials in their officialcapacities are tantamount to suit against the municipality itself. Monell v. New York
City Dept. of Social Servs., 436 U.S. 658, 690 (1978); Hafer v. Melo, 502 U.S. 21, 25
(1991).
“Because the real party in interest in an official-capacity suit is the
governmental entity and not the named official, ‘the entity’s policy or custom must
have played a part in the violation of federal law.” Hafer, 502 U.S. at 25 (citing
Kentucky v. Graham, 473 U.S. 159, 166 (1985); Monell, 436 U.S. at 694).
In order to impose liability on a local government under § 1983, a plaintiff
“must prove that ‘action pursuant to official municipal policy’ caused their injury.”
Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Monell, 436 U.S. at 691).
Thus, in order for Counts 14, 18, and 21 to stand, the Complaint must allege that a
municipal custom or practice caused the deprivation of Ms. Chase’s rights.
“Official municipal policy includes the decisions of a government’s
lawmakers, the acts of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” Id. at 61. “To show a policy,
custom, or practice, the plaintiff need not identify an express rule or regulation.”
Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (citing Sorlucco v.
New York City Police Dep’t, 971 F.2d 864, 870-71 (2d Cir. 1992)). For example, it
9
may be enough where “a discriminatory practice of subordinate employees was
‘so manifest as to imply the constructive acquiescence of senior policy-making
officials.’” Id. (quoting Sorlucco, 971 F.2d at 871). Additionally, “[a] policy, custom,
or practice may also be inferred where ‘the municipality so failed to train its
employees as to display a deliberate indifference to the constitutional rights of
those within its jurisdiction.’” Id. (quoting Kern v. City of Rochester, 93 F.3d 38, 44
(2d Cir. 1996)).
The Complaint alleges that there are “Law Enforcement Standards . . . as to
methods and procedures for the investigation and interview of victims of sexual
assault” and that “[t]hese standards are intended to overcome the longstanding
stereotypical assumption about sexual assault and negative judgments made
about victims of sexual assault when they report the crime.” [Dkt. 1-1 ¶ 61]. The
Complaint further alleges that Defendants failed to follow any of these standards
in handling Plaintiff’s case. Id. ¶ 62. Plaintiff’s Opposition to the Motion to Dismiss
suggests that those two paragraphs, in addition to the facts set forth regarding the
officers’ failure to meet those standards in Ms. Chase’s case, are enough to satisfy
the pleading standards for a Monell claim for Counts 14 and 18. See [Dkt. 43 at 31].
With respect to the denial of equal protection claim, Count 21, the Complaint
alleges that the Town of Canton Police Department “maintained longstanding
discriminatory practices against women,” noting that there were no women police
officers in the department at the time of Ms. Chase’s arrest and that the department
provided inadequate training and inadequate oversight of its officers. Id. ¶¶ 249,
252-255. Additionally, it alleges that the department “was riddled with stereotypical
10
assumptions about women who report crimes of violence against men” and that
this resulted in “discrimination and hostility towards female victims of crimes of
violence against men.” Id. ¶¶ 254, 259.
Aside from these mostly conclusory allegations, Ms. Chase provides no
factual allegations supporting the existence of a municipal policy or practice
outside the facts regarding her own experience.
But facts alleging a single
instance of misconduct or mishandling of a complaint do not suffice to state a
Monell claim. Newton v. City of New York, 566 F. Supp. 2d 256, 271 (S.D.N.Y. 2008)
(“[A] custom or policy cannot be shown by pointing to a single instance of
unconstitutional conduct by a mere employee of the State.”); see also City of
Oklahoma City v. Tuttle, 471 U.S. 808, 831 (1985) (“To infer the existence of a city
policy from the isolated misconduct of a single, low-level officer, and then hold the
city liable on the basis of that policy, would amount to permitting precisely the
theory of strict respondeat superior liability rejected in Monell.”).
The Complaint includes no alleged statements or reports that this kind of
misconduct occurs with regularity in the department’s handling of claims of sexual
assault against women or that there has been any observation that training for
handling such cases is lacking.
Nor does she support her claim with other
instances of officers of the department bringing unsupported false statement
charges, or the like, against other women who had made sexual assault
complaints. Cf. Graham v. County of Erie, No. 11-cv-605S, 2012 WL 1980609, at *56 (W.D.N.Y. May 31, 2012) (denying motion to dismiss where plaintiff demonstrated
“a pattern of documented shortcomings,” which included multiple instances of
11
misconduct recorded by a DOJ investigation); Bertuglia v. City of New York, 839 F.
Supp. 2d 703, 738 (S.D.N.Y. 2012) (denying motion to dismiss where the “Amended
Complaint point[ed] to over fifteen cases where City prosecutors allegedly
committed misconduct, and allege[d] the existence of many more such cases in
the form of unpublished opinion”); Bektic-Marrero v. Goldberg, 850 F. Supp. 2d 418,
431 (S.D.N.Y. 2012) (denying motion to dismiss where plaintiff supported
allegations with a DOJ report regarding systemic failures in the jail’s provision of
medical care to inmates).
None of Ms. Chase’s allegations regarding the existence of a municipal
policy or practice of mishandling claims brought by women against men for sexual
assault include actual factual support. The Complaint includes only conclusory
statements about there being discriminatory practices and inadequate training and
oversight. To survive a motion to dismiss, a plaintiff “cannot merely allege the
existence of a municipal policy or custom, but must allege facts tending to support,
at least circumstantially, an inference that such a municipal policy or custom
exists.” Triano v. Town of Harrison, 895 F. Supp. 2d 526, 535 (S.D.N.Y. 2012).
“[N]aked assertion[s] devoid of further factual enhancement” do not suffice. Iqbal,
556 U.S. at 678. The fact that there were no female police officers in the department
at the time of Ms. Chase’s arrest along with the specific factual allegations
supporting the claim that the officers mishandled her own case do not plausibly
lead to an inference that a municipal policy or practice existed.
As such, Ms. Chase has failed to sufficiently plead liability on the part of the
Town of Canton for the § 1983 claims, including the claims against the individual
12
officers in their official capacities, and Counts 15, 18, and 21 are therefore
DISMISSED.
These dismissals are without prejudice to filing an amended
complaint within fourteen days after the date of this decision setting forth factual
support for the conclusory claims alleged.
B. False Arrest & Malicious Prosecution (Counts 14, 16, 17, and 19)
The Town Defendants argue that the Complaint fails to state a claim for any
of the false arrest or malicious prosecution claims “because [Ms. Chase’s] arrest
was made pursuant to an arrest warrant issued by a state superior court judge.”
[Dkt. 34-1 (Mot. Dismiss Mem.) at 8]. 2, 3
“To state a valid claim for false arrest or malicious prosecution under § 1983,
a plaintiff must plead an unreasonable deprivation of liberty in violation of the
Fourth Amendment and satisfy the state law elements of the underlying claims.”
Walker v. Sankhi, 494 F. App’x 140, 142 (2d Cir. 2012). The Fourth Amendment
provides “[t]he right of the people to be secure in their persons . . . against
2
The remaining false arrest and malicious prosecution claims include: Count 14
for § 1983 false arrest against Detective Colangelo, Officer Gompper, and Sergeant
Penney in their personal capacities; Count 16 for state law false arrest against
Detective Colangelo, Officer Gompper, Sergeant Penney, Chief Arciero, and the
Town of Canton; Count 17 for § 1983 malicious prosecution against Detective
Colangelo, Officer Gompper, and Sergeant Penney in their personal capacities; and
Count 19 for common law malicious prosecution against Detective Colangelo,
Officer Gompper, Sergeant Penney, Chief Arciero, and the Town of Canton.
3
Defendants seem to question whether the Court will exercise jurisdiction over
these claims. See [Dkt. 34-1 at 21]. This Court has federal question jurisdiction
arising out of the § 1983 claims and therefore has supplemental jurisdiction over
the pendent state law claims, which derive from a common nucleus of operative
fact as the federal claims. Given that considerations of judicial economy and
convenience and fairness to the litigants justify hearing the state law claims with
the federal claims, and absent any argument to the contrary, this Court exercises
jurisdiction. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725-26 (1966).
13
unreasonable searches and seizures.” U.S. Const. Amend. IV. Section 1983 claims
for false arrest and malicious prosecution are based on this Fourth Amendment
right to be free from unreasonable seizures, including arrest and prosecution
without probable cause. See Soares v. Conn., 8 F.3d 917, 920 (2d Cir. 1993) (“It is
settled that a person has a clearly established right not to be arrested or
prosecuted without probable cause.”). In analyzing § 1983 claims for false arrest
and malicious prosecution, courts “generally look[ ] to the law of the state in which
the arrest occurred.” Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir. 2016). Because
“[c]laims for false arrest or malicious prosecution, brought under § 1983 to
vindicate the Fourth and Fifteenth Amendment right to be free from unreasonable
seizures, are substantially the same as claims for false arrest or malicious
prosecution under state law,” the Court considers the federal and state claims
together. Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003).
Under Connecticut law, “[f]alse imprisonment, or false arrest, is the unlawful
restraint by one person of the physical liberty of another.”
Russo v. City of
Bridgeport, 479 F.3d 196, 204 (2d Cir. 2007) (quoting Outlaw v. Town of Meriden, 43
Conn. App. 387, 392 (Conn. App. Ct. 1996)). The elements of such a claim under
Connecticut law are: (1) the defendant arrested plaintiff or had plaintiff arrested; (2)
the plaintiff was aware of the arrest; (3) there was no consent for the arrest; and (4)
the arrest was not supported by probable cause. Marchand v. Simonson, 16 F.
Supp. 3d 97, 109 (D. Conn. 2014) (quoting Shattuck v. Town of Stratford, 233 F.
Supp. 2d 301, 306 (D. Conn. 2002)). The Town Defendants do not challenge the
Complaint’s allegations as to the first three elements.
14
“To prevail on a malicious prosecution claim under Connecticut law, a
plaintiff must prove the following elements: (1) the defendant initiated or continued
criminal proceedings against the plaintiff; (2) the criminal proceeding terminated
in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the
defendant acted with malice.” Roberts v. Babkiewicz, 582 F.3d 418, 420 (2d Cir.
2009) (quoting McHale v. W.B.S. Corp., 446 A.2d 815, 817 (Conn. 1982)). The Town
Defendants do not challenge the Complaint’s allegations as to the first two
elements. See [Dkt. 1-1 ¶¶ 123, 127, 139]. Nor do Defendants seem to challenge
the pleading as to the fourth element requiring malice, and the Court finds that the
facts alleged state a plausible claim that the Town Defendants acted with malice in
bringing the case against Ms. Chase.4 Thus, the challenge to the false arrest and
malicious prosecution claims rests on the sufficiency of the pleading as to the lack
of probable cause element.
1. Probable Cause Defense
The existence of probable cause is a complete defense to claims of false
arrest and malicious prosecution under both federal and Connecticut law. See
Williams v. Town of Greenburgh, 535 F.3d 71, 78-79 (2d Cir. 2008); Walczyk v. Rio,
496 F.3d 139, 152 n. 14 (2d Cir. 2007) (“The existence of probable cause to arrest
4
In so finding, the Court takes into account Ms. Chase’s allegations that she
informed the Town Defendants of multiple witnesses who could corroborate her
harassment allegations against Mr. Nodine, their alleged demeanor and treatment
of Mr. Nodine during his interview, their alleged repeated dismissals of Ms. Chase’s
attempts to formally amend her statement, and their provision of information and
confidential materials to Mr. Nodine regarding Ms. Nodine’s impending arrest
before even she knew that she was under suspicion. See [Dkt. 1-1 ¶¶ 74-76, 81-83,
85, 109-125].
15
constitutes justification and is a complete defense to an action for false arrest,
whether that action is brought under state law or under § 1983.”); Johnson v. Ford,
496 F. Supp. 2d 209, 213 (D. Conn. 2007) (citing Davis v. Rodriguez, 364 F.3d 424,
433 (2d Cir. 2004)).
When an arrest is made pursuant to a warrant issued by a neutral magistrate,
probable cause is presumed. See Walczyk v. Rio, 496 F.3d 139, 155-56 (2d Cir.
2007) (“Ordinarily, an arrest or search pursuant to a warrant issue by a neutral
magistrate is presumed reasonable because such warrants may issue only upon a
showing of probable cause.”).
A plaintiff may overcome this presumption by
showing that “the officer submitting the probable cause affidavit ‘knowingly and
intentionally, or with reckless disregard for the truth, made a false statement in his
affidavit’ or omitted material information, and that such false or omitted information
was ‘necessary to the finding of probable cause.’” Soares, 8 F.3d at 920 (quoting
Golino v. Town of New Haven, 950 F.2d 864, 870-71 (2d Cir. 1991)); see also Franks
v. Delaware, 438 U.S. 154, 155-56 (1978).
Here, Detective Colangelo arrested Ms. Chase for an alleged violation of
Conn. Gen. Stat. § 53a-157b, which states in pertinent part:
A person is guilty of false statement when such person (1)
intentionally makes a false written statement that such person does
not believe to be true with the intent to mislead a public servant in the
performance of such public servant’s official function, and (2) makes
such statement under oath or pursuant to a form bearing notice,
authorized by law, to the effect that false statements made therein are
punishable.
The Town Defendants argue that Detective Colangelo “had probable cause to
arrest [Ms. Chase] because a valid arrest warrant had been issued by a judge.”
16
[Dkt. 34-1 at 11]. They further argue that Ms. Chase has not sufficiently alleged
what information, if any, was “false and/or omitted from the warrant application,
which information would have negated the finding of probable cause.” Id. at 11-12.
Thus, they suggest that Ms. Chase failed to allege facts rebutting the presumption
of probable cause for arrest. The Court disagrees.
Ms. Chase acknowledges that Detective Colangelo had a warrant for her
arrest but alleges that Detective Colangelo’s affidavit “was filled with lies,
innuendos, and distortions.” [Dkt. 1-1 ¶ 134]. Ms. Chase does not leave it to
conclusory allegations; she makes specific allegations as to the warrant’s untruths
and misrepresentations.
She alleges that Detective Colangelo untruthfully
represented that he told her that “she could call and speak to Affiant Colangelo
about her decision to provide a written statement,” which would suggest that he
had made himself available for her to revise her statement when she was ready but
that she had affirmatively chosen not to do so. See id. She also alleges that his
statement that “[a]s of 7/7/17, Chase has not called to speak to Affiant Colangelo
of [sic] Officer Gompper” is misleading. See id. She further alleges:
These statements completely misrepresent the facts presented to the
reviewing court. Nicole Chase attempted to contact defendant
Colangelo numerous times. She tried to revise her complaint before
he drafted and signed the warrant, and after he had signed the warrant,
but before it had been presented to the reviewing State’s Attorney, or
the court. Chase even emailed the revised version of her statement to
Detective Colangelo one month before it was signed or reviewed by
the State’s Attorney or Judge.
Id.
Even more specifically, Ms. Chase alleges that she told Detective Colangelo
during her June 21, 2017 interview that she wanted to revise her statement, but that
17
she wanted to consult with a lawyer first. Id. ¶ 109. She alleges that she tried to
get in contact with Detective Colangelo numerous times following her interview on
June 21, 2017—calling him several days later, asking for him when she visited the
station on July 13, 2017, and sending him multiple emails later in July. Id. ¶¶ 110,
112-118.
The Complaint alleges that neither Officer Gompper nor Detective
Colangelo responded to any of Ms. Chase’s efforts until August 10, 2017, when
Detective Colangelo emailed her back saying that he hadn’t realized she wanted to
amend her statement but that he “had already documented the change in [her]
recount of the incident.” Id. ¶¶ 114, 119. Ms. Chase alleges that all of this happened
weeks before the Assistant State’s Attorney signed the warrant application on
August 30, 2017, and more than a month before the Court signed the warrant on
September 6, 2017. Id. ¶¶ 121, 122. Thus, the Complaint plausibly alleges that at
the time of the judge’s signature the warrant affidavit included misrepresentations
of fact such that it was false and misleading.
Taking these allegations as true, the Complaint states a plausible claim that
Detective Colangelo, the warrant application affiant, “knowingly and intentionally,
or with reckless disregard for the truth, made a false statement in his affidavit or
omitted material information, and that such false or omitted information was
necessary to the finding of probable cause,”
Soares, 8 F.3d at 920 (internal
quotations omitted), thus overcoming the assumption of probable cause provided
by the signed warrant. The Complaint alleges that Officer Gompper was involved
in the investigation and contributed to the warrant application. See [Dkt. 1 ¶ 128].
18
These allegations are sufficient to state plausible claims of false arrest and
malicious prosecution against Officer Gompper as well.
2. Sergeant Penney – § 1983 Liability Personal Involvement Requirement
Ms. Chase’s personal capacity § 1983 false arrest (Count 14) and malicious
prosecution (Count 17) claims are also alleged against Sergeant Penney. The Town
Defendants argue however that her allegations as to Sergeant Penney’s personal
involvement, as required for liability under § 1983, are insufficient.5
The Supreme Court has held that respondeat superior may not serve as the
basis for imposing § 1983 liability. Monell v. Dep’t of Social Servs., 436 U.S. 658
(1978). “The Supreme Court’s rejection of respondeat superior as a basis for §
1983 liability necessarily means that each defendant, whether an individual or
entity, may be held liable only for that defendant’s own wrongs. This principle is
invoked most frequently and prominently in the context of municipal entity and
supervisory officer liability, but applies to all defendants sued under § 1983.”
Schwartz, Section 1983 Litig. Claims & Defenses, § 6.04 Rule Against Respondeat
Superior Liability. In Rizzo v. Goode, the Supreme Court held that superior officers
cannot be held liable under § 1983 merely because of their authority to control
subordinate employees. 423 U.S. 362 (1976). As a result, an official must have
5
The Town Defendants also argue that Ms. Chase’s claims as to Chief Arciero’s
personal involvement are lacking. But Chief Arciero is not a named defendant for
Counts 14 and 17 and Counts 15 and 18 against Chief Arciero in his official capacity
have already been found lacking infra. The Town Defendants’ § 1983 personal
involvement arguments do not apply to Counts 16 and 19 because they are state
claims. The Town Defendants do not argue that § 1983 limits to liability also apply
to the state and common law false arrest and malicious prosecution claims. Nor
do the Town Defendants argue any other immunity or liability limitations as to these
claims. As such, the Court declines to wade into any such issues.
19
been “personally involved” in a violation of the plaintiff’s federal rights in order for
him or her to be subject to § 1983 liability. See Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994); Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991).
Ms. Chase alleges her § 1983 false arrest and malicious prosecution claims
against Sergeant Penney, in addition to Detective Colangelo and Officer Gompper.
The Complaint alleges that Sergeant Penney was the “Shift Commander who
oversaw Officer Gompper and Detective Colangelo in the investigation of Nicole
Chase’s . . . [c]omplaint and her arrest.” [Dkt. 1-1 ¶¶ 19-20]. It further alleges that
“Penney reviewed and approved all of the police reports pertaining to the
investigation” and that he “took Colangelo’s oath as to the accuracy of the warrant
and approved the Arrest Warrant on July 7, 2017.” Id. ¶ 129. The Complaint alleges
that his approval and allowance of submission of the warrant was “with deliberate
and/or reckless disregard for the false, distorted, and misleading information
contained therein, and the omission of material exculpatory information.” Id. ¶ 224.
These allegations are insufficient to state a claim against Sergeant Penney
because they do not include an allegation that he knew or should have known any
statement in the warrant application was false or misleading.
Counts 14 and 17
are therefore DISMISSED without prejudice to filing an amended complaint within
fourteen days of the date of this decision alleging facts establishing Sergeant
Penney knew or should have known a material statement in the warrant application
was false or misleading.
20
3. Chief Arciero and Town of Canton – Counts 16 and 19
In addition to naming Detective Colangelo, Officer Gompper, and Sergeant
Penney in her state law false arrest (Count 16) and common law malicious
prosecution (Count 19) claims, Ms. Chase names Chief Arciero and the Town of
Canton. The Town Defendants make no arguments outside those discussed infra
challenging the liability of these two additional defendants on these counts. As
such, the Court declines to dismiss them sua sponte.
C. Denial of Equal Protection
The Town Defendants argue that, as to Counts 20 and 21 for denial of equal
protection in the Defendants’ personal and official capacities, Ms. Chase “fails to
state a plausible claim for relief for selective enforcement or pursuant to a class of
one theory of liability.” [Dkt. 34-1 at 12]. Because the Court has already concluded
that Count 21 is insufficiently pled and therefore dismissed, the Court considers
only Count 20 for denial of equal protection against the individual Defendants in
their personal capacities.
Ms. Chase’s Opposition to the Motion makes clear that she is asserting a
selective enforcement claim, rather than a class of one claim, see [Dkt. 43 at 27,
n.3], so the Court considers whether she sufficiently pled the former theory of
liability.
The Second Circuit has recognized that the Equal Protection Clause may be
violated by selective enforcement or selective adverse treatment. See Bush v. City
of Utica, at 134. “To state such a claim, a plaintiff must allege (1) that he or she
was treated differently from other similarly situated individuals, and (2) that the
21
‘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.’” Id. (quoting LeClair v. Saunders, 627 F.2d 606, 60910 (2d Cir. 1980)). The second element requires the plaintiff to allege that there is
no rational basis related to a legitimate governmental purpose for different
treatment based on the alleged classification. Id.
Here, the Complaint alleges that the Town of Canton Police Department
“maintained longstanding discriminatory practices against women” amounting to
custom and practice in the Department. [Dkt. 1-1 ¶ 249-50]. It further alleges that
inadequate training and oversight of investigations related to crimes against
women has led to different treatment of women, as opposed to men, when reporting
crimes, and the failure to take cases such as Ms. Chase’s seriously. Id. ¶ 256-58.
In addition, the Complaint alleges that Mr. Nodine was treated in a “blatantly
disparate manner” as compared to her, having been accused of sexual assault, lied
to the police about there having been no sexual contact, and then changing his
story without repercussions.
Id. ¶¶ 262-64.
The Complaint alleges that this
disparate treatment amounts to a violation of her right to Equal Protection under
the law.
The Town Defendants argue that Ms. Chase’s allegations are insufficient to
state a claim because the Complaint “contains no more than conclusory
allegations and recitation of the elements of her claim, without any facts supporting
her assertions.” [Dkt. 34-1 at 14]. The Town Defendants take specific issue with a
claimed lack of facts “as to whom she contends she was similarly situated to but
22
treated differently from” and “tending to establish that she was treated differently
based upon her sex.” Id. Further, they argue that Mr. Nodine is an inappropriate
comparator because “failure to investigate and failure to arrest are insufficient to
establish a constitutional violation as a matter of law” and “Courts have
consistently held that one does not have a recognized right to have another
individual investigated or prosecuted.” Id. at 15 (citing Linda R.S. v. Richard D.,
410 U.S. 614 (1973)).
Defendants’ reliance on Linda R.S. v. Richard D. is misplaced. In that case,
the Supreme Court examined whether the mother of an illegitimate child had
standing to challenge the discriminatory enforcement of a Texas statute making
the failure to provide for one’s child a misdemeanor. 410 U.S. at 614-15. The father
of the plaintiff’s child had refused to provide support, but when the mother
complained, the district attorney refused to act because Texas courts had
consistently interpreted the law to apply only to parents of legitimate children such
that her case was not within the scope of the statute. Id. The Court explained that
its “prior decisions consistently hold that a citizen lacks standing to contest the
policies of the prosecuting authority when he himself is neither prosecuted nor
threatened with prosecution.” Id. at 619. As such, “a private citizen lacks a
judicially cognizable interest in the prosecution or nonprosecution of another.” Id.
The Linda R.S. Court’s statements regarding a party’s interest, or lack
thereof, in the prosecution of another was wholly related to whether the former had
standing to challenge said prosecution. It in no way implies that a litigant cannot
invoke the prosecution or nonprosecution of another individual in making his or
23
her claim for selective enforcement of laws when she herself has been prosecuted.
Indeed, one would be wholly unable to state a claim of selective enforcement if she
were prevented from invoking the nonprosecution of others, as this would strip her
of any argument that other similarly situated individuals were treated differently in
that charges were not brought against them for an impermissible reason.
The Second Circuit has guided however that “mere failure to prosecute other
offenders is not a basis for a finding of denial of equal protection.” LaTrieste Rest.
V. Vill. of Port Chester, 188 F.3d 65, 70 (2d Cir. 1999) (quoting LeClair v. Saunders,
627 F.2d 606, 608 (2d Cir. 1980)). This is because “selective prosecution implies
that a selection has taken place.” Id. (quoting United States v. Armstrong, 517 U.S.
456, 469 (1996)). Thus, in order to show that he/she was selectively treated, a party
would need to show that the government entity “knew of other violations, but
declined to prosecute them.” Id.
Ms. Chase’s allegations regarding similarly situated comparators are
minimal and, the Court concludes, insufficient to state a claim.
The only
comparator provided in the Complaint is Mr. Nodine. Ms. Chase alleges that Mr.
Nodine initially told the police that there had been no sexual contact between
himself and Ms. Chase but moments later, after consulting with counsel, admitted
this was untrue. [Dkt. 1 ¶ 263]. She further alleges that, while she was arrested as
a result of her misstatements, the police knew of Mr. Nodine’s lie and chose not to
charge him. Id. ¶ 264. Ms. Chase alleges that this constitutes disparate treatment
in violation of her right to equal protection under the laws. Id. ¶ 262, 265.
24
But even taking the facts alleged in the light most favorable to Ms. Chase,
Mr. Nodine is not a similarly situated comparator. Unlike Ms. Chase, Mr. Nodine,
according to the Complaint, did not include his inaccuracy in any official statement
to the police. Rather, he misstated the facts and corrected that misstatement in the
same interview. He never made an official false or inaccurate statement upon
which the police could have brought a false statement charge. Thus, Mr. Nodine
does not qualify as a similarly situated comparator. Because Mr. Nodine is the only
comparator included in the Complaint and the Court has concluded that he is not
similarly situated, Ms. Chase’s equal protection claim is insufficiently pled and
therefore DISMISSED in its entirety.
D. Denial of Substantive Due Process
Ms. Chase also brings a claim for denial of substantive due process (Count
22), alleging that the Town Defendants’ behavior “was an egregious, outrageous,
and arbitrary assertion of government authority that shocked the conscience.”
[Dkt. 1-1 ¶ 268].
She further argues that the Fourteenth Amendment guards
generally against official conduct which shocks the conscience or is used for
purposes of oppression and that the Town Defendant’s actions fall into these
categories and she has thus stated a claim. [Dkt. 43 at 28]. The Town Defendants
suggest that Ms. Chase cannot bring a substantive due process claim when a more
specific claim—e.g. a Fourth Amendment claim—is available. [Dkt. 34-1 at 18-19].
The Court agrees with the Town Defendants.
In Albright v. Oliver, the Supreme Court concluded that the defendant’s
malicious prosecution claim was properly asserted under the Fourth Amendment,
25
rather than the Fourteenth. 510 U.S. 226 (1994). The Court explained that “[w]here
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.” Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395
(1989) (internal quotations omitted)).
Because “[t]he Framers considered the
matter of pretrial deprivations of liberty and drafted the Fourth Amendment to
address it,” “substantive due process, with its scarce and open-ended guideposts,
can afford [the defendant] no relief.” Id. at 274-75 (quoting Collings v. Harker
Heights, 503 U.S. 115, 125 (1992)).
This analysis appropriately applies to Ms. Chase’s substantive due process
claim. Because her allegations fall within the purview of the Fourth Amendment,
corresponding to her § 1983 false arrest and malicious prosecution claims, her
Fourteenth Amendment claim is DISMISSED. See Nadeau v. Anthony, No. Civ.A.
303-cv-34 (AWT), 2003 WL 22872150, at *2 (D. Conn. Dec. 2, 2003) (dismissing
substantive due process claim, finding that the “plaintiff may not pursue a cause
of action under the Fourteenth Amendment for violation of his right to substantive
due process when a cause of action for his claim exists under the Fourth
Amendment.”).
E. Intentional Infliction of Emotional Distress
In order to assert a claim for intentional infliction of emotional distress, the
plaintiff must establish: (1) that the actor intended to inflict emotional distress; or
that he knew or should have known that the emotional distress was a likely result
26
of his conduct; (2) that the conduct was extreme and outrageous; (3) that the
defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the
distress suffered by the plaintiff was severe.” Petyan v. Ellis, 200 Conn. 243, 253,
510 A.2d 1337 (1986); see also Miner v. Town of Cheshire, 126 F. Supp. 2d 184, 194
(D. Conn. 2000). “Liability for intentional infliction of emotional distress requires
conduct that is so extreme and outrageous that it goes beyond all possible bounds
of decency, is regarded as atrocious, is utterly intolerable in a civilized society, and
is of a nature that is especially calculated to cause, and does cause, mental distress
of a very serious kind.” Miner, 126 F. Supp. 2d at 194.
Ms. Chase brings an intentional infliction of emotional distress claim against
Detective Colangelo, Officer Gompper, and the Town of Canton.
The Town
Defendants contend that Ms. Chase has not alleged “extreme and outrageous”
conduct which would satisfy the intentional infliction of emotional distress
standard. [Dkt. 34-1 at 24]. They cite two cases to suggest that Ms. Chase’s
allegations are lacking.
First, they cite Appleton v. Board of Education, in which the Supreme Court
of Connecticut found that the defendants’ conduct did not rise to the level of
extreme and outrageous. 757 A.2d 1059, 1063 (Conn. 2000). In Appleton, the
plaintiff, a teacher, alleged that the defendants had made condescending
comments to her in front of colleagues, questioned her vision and ability to read,
told the plaintiff’s daughter that she had been acting differently, called police who
escorted plaintiff from the school, caused her to undergo psychiatric examinations,
and ultimately forced her to take a suspension, leave of absence, and then resign.
27
Id.
The Court reasoned that “[t]hese occurrences may very well have been
distressing and hurtful to the plaintiff” but “were not so atrocious as to exceed all
bounds usually tolerated by decent society,” especially given that the Court had
previously held that it is not patently unreasonable for an employer to remove a
discharged employee from the premises under a security escort. Id.
The circumstances in Appleton are entirely distinct from those at issue here.
The facts alleged by Ms. Chase surpass mere critical statements and removal from
the premises by supervisors, which under certain circumstances may have been
appropriate and do not, as the Appleton Court found, constitute extreme and
outrageous conduct.
The Town Defendants next cite Carrol v. Allstate Ins. Co., in which the
Connecticut Supreme Court concluded that the evidence presented was not
sufficient for a jury to reasonably concluded that the defendant’s conduct in its
investigation of plaintiff’s fire was extreme and outrageous. 815 A.2d 119, 126
(Conn. 2003). The Carrol Court explained that “[t]he plaintiff produced evidence
that the defendant did not conduct a thorough or reasoned investigation and may
have decided too quickly that the fire had been set deliberately. As distressing as
this insurance investigation may have been to the plaintiff, however, it simply was
not so atrocious as to trigger liability for intentional infliction of emotional
distress.” Id.
As with Appleton, the facts at issue in Carrol are not analogous to those at
hand.
Ms. Chase does not allege a sloppy investigation followed by a hasty
conclusion resulting in denial of insurance coverage by an insurance company.
28
She alleges much more extreme conduct: that the Town of Canton police chose
not to take her claims against Mr. Nodine seriously, treated Ms. Chase as though
she was the assailant rather than a victim of sexual assault, willfully or recklessly
ignored her attempts to clarify her statement of the events of her sexual assault,
knowingly misrepresented the facts surrounding her statement in a sworn affidavit
to the State’s Attorney and a judge in order to obtain a warrant for her arrest for
making a false statement, and then arrested her for initially leaving a salacious
detail out of the recounting of her assault. Ms. Chase alleges more than the simple
fact of her arrest; she alleges improper conduct leading up to an arrest which
caused her significant emotional distress.
The Court finds that these allegations are sufficient to state a claim for
intentional infliction of emotional distress against Detective Colangelo as well as
Officer Gompper, who Ms. Chase alleges was involved in the development and
execution of the case. The Town Defendants make no argument that the Town of
Canton is immune from this claim or ineligible for respondeat superior liability. As
a result, this claim stands against the Town of Canton as well.
F. Negligent Infliction of Emotional Distress
“To prove a claim of negligent infliction of emotional distress, the plaintiff
must establish that the defendant knew or should have known that its conduct
involved an unreasonable risk of causing emotional distress, and that the distress,
if it were caused, might result in bodily harm.” Copeland v. Home & Cmty. Health
Servs., Inc., 285 F. Supp. 2d 144, 149 (D. Conn. 2003) (quoting Buckman v. People
Express, Inc., 205 Conn. 166, 173, 530 A.2d 596 (1987)). Having found that Ms.
29
Chase sufficiently alleged a claim for intentional infliction of emotional distress,
which carries a higher standard than negligent infliction, the Court finds that she
has stated a claim for negligent infliction of emotional distress for the same
reasons. However, the Town Defendants argue that this claim is barred by the
doctrine of governmental immunity. [Dkt. 34-1 at 25].
Under common law in Connecticut, “barring the possible application of an
exception, both municipalities and their employees or agents have immunity from
negligence liability for governmental acts involving the exercise of judgment or
discretion.” Elliott v. City of Waterbury, 715 A. 2d 27, 40 (Conn. 1998) (citing Heigl
v. Bd. Of Edu., 218 Conn. 1, 4-5 (1991); Evon v. Andrews, 211 Conn. 501, 505 (1989)).
“The hallmark of a discretionary act is that it requires the exercise of judgment . . .
In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed
manner without the exercise of judgment.” Violano v. Fernandez, 907 A.2d 1188,
1193-94 (Conn. 2006) (quoting Martel v. Metro. Dist. Commission, 275 Conn. 38, 4849 (2005)). Ms. Chase does not contest that Defendants’ actions were discretionary
and would therefore be entitled to immunity but argues in her Opposition to the
Motion to Dismiss that an exception to immunity applies here. See [Dkt. 43 at 29].
The Connecticut Supreme Court has explained that there are three
exceptions to discretionary act immunity. See Violano, 907 A.2d at 1194. One such
exception is “when the circumstances make it apparent to the public officer that
his or her failure to act would be likely to subject an identifiable person to imminent
harm.” Id. The exception requires “(1) imminent harm; (2) an identifiable victim;
and (3) a public official to whom it is apparent that his or her conduct is likely to
30
subject that victim to that harm.” Violano, 907 A.2d at 1194. Ms. Chase invokes
this exception in her Opposition Memorandum. See [Dkt. 43 at 29].
The Town Defendants argue that, because Ms. Chase did not explicitly plead
the exception in her Complaint, she cannot invoke it now. [Dkt. 46 (Reply Mem.) at
8]. Governmental immunity is a special defense which a defendant must raise in
his or her pleadings or, where it is apparent from the face of the complaint that the
government function complained of was discretionary, the defendant may attack
the legal sufficiency of the complaint through a motion to strike. Violano, 321 A.2d
at 1195. Contrary to the Town Defendants’ assertion, a plaintiff is not required to
explicitly name in its initial complaint an exception to a special defense which the
defendant has not yet had an opportunity to raise. The two cases cited by the Town
Defendants do not suggest otherwise.
Defendants rely on Haynes v. City of Middletown, 997 A.2d 636, 641 (Conn.
App. 2010), rev’d, 50 A.3d 880, 882 (Conn. 2012), and Kajic v. Marquez,
HHDCV166065320S, 2017 WL 4399631, at *9 (Conn. Super. Ct. Aug. 16, 2017), in
which the courts declined to consider the applicability of the identifiable person,
imminent harm exception to governmental immunity raised by the plaintiffs for the
first time late in each case. But in each of those cases, unlike here, the plaintiffs
had not raised the exception promptly after the defendants pled the special defense
of governmental immunity. Rather, in Haynes the plaintiff raised the exception for
the first time after trial and in response to the defendants’ motion for directed
verdict, 997 A.2d at 641, and in Kajic the plaintiff first raised the exception in
opposition to a summary judgment motion and after the close of discovery, 2017
31
WL 4399631, at *9. The courts concluded that the plaintiffs had failed to make the
applicability of the exception issues in the cases, both of which had proceed past
discovery, and therefore declined to allow the plaintiffs to raise it at such late
stages. See Haynes, 997 A.2d at 641; Kajic, 2017 WL 4399631, at *9.
But here, the pleading stage has not concluded, and when Defendants raised
the special defense of governmental immunity for the first time in their Motion to
Dismiss, Plaintiff promptly raised the immunity exception, thus making it an issue
in the case well before the close of discovery. The question then becomes whether
Plaintiff pleaded facts sufficient to support the applicability of the exception.
The exception requires (1) imminent harm; (2) an identifiable victim; and (3)
a public official to whom it is apparent that his or her conduct is likely to subject
that victim to that harm.
Violano, 907 A.2d at 1194.
Plaintiff’s Opposition
Memorandum argues that she “was the identifiable victim of the alleged negligent
conduct and harm inflicted by Officers Colangelo and Gompper.” [Dkt. 43 at 29].
Thus, Plaintiff seems to argue that Detective Colangelo and Officer Gompper would
have known from the circumstances that their failure to correct the warrant
application would result in the imminent harm of Ms. Chase.
It is unclear from the Complaint or the Opposition, but the Court presumes
that the alleged imminent harm would have been a violation of Ms. Chase’s Fourth
Amendment rights or the emotional distress that she experienced. But such nonphysical harm is “not the type of ‘dangerous condition’ that rises to a level so as
to invoke the imminent harm to identifiable victim exception.” See Borg v. Town
of Westport, No. 3:15-cv-1380(AWT), 2016 WL 9001021, at *10 (D. Conn. Aug. 18,
32
2016); Bento v. City of Milford, No. 3:13-cv-1385, 2014 WL 1690390, at *6 (D. Conn.
Apr. 29, 2014) (“[C]ourts in this state have also held that the imminent harm
complained of must be physical in nature in order for the exception to apply.”);
Pane v. City of Danbury, No. CV97347235S, 2002 WL 31466332, at *9 (Conn. Super.
Ct. Oct. 18, 2002), aff’d, 267 Conn. 669 (2004) (Finding that “[c]ases where plaintiffs
allege ‘imminent harm’ typically involve physical harm rather than emotional
distress[,]” therefore finding governmental immunity for the plaintiff’s negligent
infliction of emotional distress claim).
The Complaint includes no allegation that the Town Defendants would have
known from the circumstances that some physical harm would have befallen Ms.
Chase had they failed to act. As such, Ms. Chase has failed to sufficiently plead
facts supporting the applicability of an exception to the Town Defendants’
governmental immunity with respect to her negligent infliction of emotional
distress claim and that count is accordingly DISMISSED in its entirety.6
G. Federal Qualified Immunity
The Town Defendants argue that “the individual Canton defendants are
entitled to qualified immunity as to each claim set forth by the plaintiff in Counts
Fourteen through Twenty-two.” [Dkt. 34-1]. The Court has already found that the
6
In one sentence in her Opposition Memorandum, Plaintiff states that her
“negligent infliction of emotional distress claim against the Town is founded on §
52-577n.” [Dkt. 43 at 30]. To the extent Plaintiff intended to make some argument
on this basis, it is completely undeveloped both factually and legally and the Court
declines to consider such a cursory argument. See Herbert v. Architect of Capitol,
839 F. Supp. 2d 284, 298 (D.D.C. 2012) (“[T]he [defendant] has simply failed to
support its argument with any meaningful measure of factual or legal argument.
Courts need not consider cursory arguments of this kind, and the Court declines
to do so here.”)
33
official capacity false arrest and malicious prosecution claims, as well as the denial
of equal protection claims and the denial of substantive due process claim must
be dismissed. Therefore, the Court considers the Town Defendants’ qualified
immunity arguments with respect to the remaining § 1983 false arrest and
malicious prosecutions claims, Counts 14 and 17.7
“Under federal law, a police officer is entitled to qualified immunity where (1)
his conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known, or (2) it was objectively
reasonable for him to believe that his actions were lawful at the time of the
challenged act.” Benn v. Kissane, 510 F. App’x 34, 37-38 (2d Cir. 2013). Put another
way, “government officials performing discretionary functions, generally are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
In the false arrest / malicious prosecution context, the Second Circuit has
explained that, “there can frequently be a range of responses to given situations
that competent officers may reasonably think are lawful. . . . The essential inquiry
. . . is whether it was objectively reasonable for the officer to conclude that probable
7
Even though Defendants argue that qualified immunity applies to Counts 14
through 22, which encompasses state and common law claims in addition to § 1983
claims, as far as the Court can tell, Defendants invoke only the federal doctrine of
qualified immunity, which does not apply to Plaintiff’s state and common law false
arrest and malicious prosecution claims. Defendants do not argue that this federal
standard should apply to the state claims or assert that Connecticut’s common law
qualified immunity doctrine should apply to these claims. The Court therefore only
considers federal qualified immunity with respect to the civil rights claims. See
Mulligan v. Rioux, 643 A.2d 1226, 1239 n.29 (Conn. 1994).
34
cause existed.” Benn, 510 F. App’x at 38. More specifically, the Second Circuit has
explained that “[w]here an officer knows, or has reason to know, that he has
materially misled a magistrate on the basis for a finding of probable cause, . . . the
shield of qualified immunity is lost.” Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir.
1994).
Here, the Town Defendants argue that the individual defendants are entitled
to qualified immunity because they “cannot be found liable for any alleged
statutory and/or constitutional violations.” [Dkt. 34-1 at 29-30]. This argument fails
because the Court has concluded that Ms. Chase has alleged facts sufficient to
state § 1983 false arrest and malicious prosecution claims based on violation of
her Fourth Amendment right not to be arrested or prosecuted without probable
cause. The Town Defendants make no arguments that the violated rights were not
clearly established or that it would have been objectively reasonable for
Defendants to believe that their actions were lawful. And the Court believes that
such arguments would have failed at this stage given that one’s right not to be
prosecuted absent probable cause is not, and has not for some time, been in
question. As such, the Court finds that the Town Defendants are not entitled to
qualified immunity at this stage.
Conclusion
For the foregoing reasons, the Court GRANTS in part and DENIES in part the
Town Defendants’ Motion to Dismiss.
Counts 15, 18, 20, 21, 22 and 24 are
DISMISSED. Additionally, Counts 14 and 17 are dismissed as to Sergeant Penney.
Plaintiff’s § 1983 personal capacity and state and common law claims for false and
35
arrest and malicious prosecution (Counts 14, 16, 17, and 19), as well as her
intentional infliction of emotional distress claim (Count 23) remain.
IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: January 22, 2019
36
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