Kucera v. Tkac et al

Filing 32

OPINION AND ORDER granting 8 Town of Hartford's Motion to Dismiss, granting Defendants' 9 Partial Motion to Dismiss. Signed by Chief Judge Christina Reiss on 4/8/2013. (pac)

u.s.

0151
DISTRICT

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT
DENNIS KUCERA,
Plaintiff,
v.
MICHAEL TKAC, GLENN CUTTING,
LEONARD ROBERTS, UNKOWN POLICE
OFFICERS, and TOWN OF HARTFORD,
VERMONT,
Defendants.

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Case No. 5:12-cv-264

OPINION AND ORDER GRANTING DEFENDANTS'
MOTIONS TO DISMISS COUNT TWO AND COUNT SEVEN
(Docs. 8 & 9)
Plaintiff Dennis Kucera brings this action pursuant to 42 U.S.C. § 1983 and state
law against Defendants Town of Hartford ("Hartford") and Hartford Police Officers
Michael Tkac, Glenn Cutting, Leonard Roberts, and Unknown Police Officers in their
individual capacities 1 (collectively, the "Defendants").
Presently before the court is the partial motion to dismiss (Doc. 9), filed by
Defendants Glenn Cutting, Leonard Roberts, and Michael Tkac, and Hartford's motion to
dismiss (Doc. 8). The moving Defendants seek dismissal of Count 2 of Plaintiffs
Amended Complaint, filed January 2,2013, arguing that Plaintiff has failed to adequately
allege that Hartford and Officers Cutting and Roberts implemented or furthered policies,
customs, and practices, constituting deliberate indifference to Plaintiffs rights or

Plaintiff initially also brought suit against Officers Tkac, Cutting, and Roberts in their official
capacities. Plaintiff has withdrawn those claims as duplicative of his claims against Hartford.
See Escobar v. City ofNew York, 2007 WL 1827414, at *3 (E.D.N.Y. June 25, 2007) ("A suit for
damages against a municipal officer in their official capacity is the equivalent of a damage suit
against the municipality itself. "). In response to the motion to dismiss, Plaintiff also dismissed
his claims brought against Officers Tkac, Cutting, and Roberts under the Fifth and Eighth
Amendments.
1

otherwise failed to adequately supervise members of the Hartford Police Department.

2

Additionally, Hartford seeks dismissal of Plaintiffs state law negligence claim set forth
in Count 7 of the Amended Complaint, arguing that it is entitled to municipal immunity.
The parties waived oral argument.
Plaintiff is represented by Christopher A. Dall, Esq. Defendants are represented
by Joseph A. Farnham, Esq. and Nancy G. Sheahan, Esq.

I.

Factual Allegations.
In his Amended Complaint, Plaintiff alleges that on September 10, 2010, Officers

John Adams, Christopher O'Keefe, and Stewart Rogers, of the Hartford Police
Department, responded to a report of domestic assault at the Shady Lawn Motel. The
disturbance was reported in Room 230, but upon their arrival and discovery that there
was no Room 230, the officers determined that the report had originated from Room 130.
The door to Room 130 was open, and Plaintiff and his roommate, Monica Therrien, were
present.
Suspecting that Ms. Therrien was intoxicated, the officers asked her to submit to a
preliminary breath test, which indicated that she had a breath alcohol content of .287%.3
Ms. Therrien told Officer O'Keefe that Plaintiff had pushed her against a wall, causing
pain; however, despite Ms. Therrien's attempts to show the officers her injuries, they
observed no injuries except for a bruise that Ms. Therrien admitted she had inflicted upon
herself. Plaintiff spoke with Officer Adams and denied grabbing, restraining, or
assaulting Ms. Therrien. Plaintiff informed Officer Adams that Ms. Therrien had been
drinking in a different location, had returned upset, and had begun to throw objects
around the motel room.

2 While Officer Michael Tkac is listed as one of the moving defendants, the arguments advanced
by Defendants that Plaintiff has failed to state a claim in Count 2 against Officers Cutting and
Roberts for supervisory liability do not pertain to Officer Tkac.

Later, when she was tested at the hospital, Ms. Therrien's blood alcohol content was allegedly
.480%.

3

2

At some point during the interaction on September 10, 2010, Ms. Therrien
allegedly became involved in a physical altercation with Officer Adams, and she was
transported to Dartmouth Hitchcock Medical Center ("DHMC"). Prior to leaving the
Shady Lawn Motel, the officers discussed filing charges, but ultimately did not arrest
Plaintiff or issue him a citation. One officer purportedly stated, "I don't even have
enough for a domestic. If anything, she [Ms. Therrien] was violent and tumultuous."
(Doc. 27-2 at ~ 18.) This statement was allegedly recorded on a video. 4
On September 20,2010, Officer Tkac allegedly learned that Ms. Therrien had
returned to DHMC on September 12, 2010 with a broken rib and punctured lung. He
then began an "internal affairs" investigation. Plaintiff alleges that the interviews
conducted pursuant to the investigation were used "primarily, though unsuccessfully, to
obtain statements and evidence to use against [Plaintiff] for allegedly assaulting Ms.
Therrien between September 10,2010 and September 12,2012." Id. at ~ 20.
On September 21-27,2010, Officer Tkac interviewed several witnesses, including
David Nestle, an occupant of Room l31 at the Shady Lawn Motel, who told Officer Tkac
that he heard objects bouncing off the shared wall with Room 130 on September 10,
2010. He also stated that he did not hear any yelling, and had not heard any commotion
from Room 130 since that night.
Susan Heyes, a second witness, provided Officer Tkac with photos of Ms.
Therrien's back. The photos were of the injuries allegedly caused by Officer Adams on
September 10,2010.
Plaintiff alleges that Ralph Diaz spoke to Officer Tkac on September 23,2010,
and claimed that he was present in Room l30 with Plaintiff and Ms. Therrien. Mr. Diaz
allegedly stated that Plaintiff did not "lay hands" on Ms. Therrien. Id. at ~ 22.
On September 24, 2010, certain unknown police officers allegedly arrested
Plaintiff without a warrant. Plaintiff also alleges that the officers lacked probable cause
for the arrest. Officer Cutting allegedly observed Plaintiffs arrest, but Plaintiff provides
no additional facts regarding Officer Cutting's proximity to the arrest or his participation
4

Neither party has submitted a video for the court's review.
3

in it. Plaintiff was incarcerated pending payment of a cash bail in the amount of $2,500,
and he remained incarcerated until his arraignment in state court on September 27,2010.
On September 27,2010, Officer Tkac allegedly interviewed Mr. Diaz who
confirmed the statements that he made on September 23,2010. On the same day, prior to
Plaintiffs arraignment, Officer Tkac spoke to Ms. Therrien who allegedly informed him
that she did not have a broken rib when she returned to DHMC and that the collapsed
lung was caused by a foreign object lodged in her lung, but did not result from conduct of
either the Hartford police officers or Plaintiff. Plaintiff further alleges that Ms. Therrien
stated that Plaintiff did not grab, push, or assault her in any way.
On September 27,2010, after Officer Tkac's conversation with Ms. Therrien,
Plaintiff was charged with one count of domestic assault pursuant to 13 V.S.A. § 1042. 5
Officer Tkac drafted the affidavit of probable cause in support of the criminal
information, which stated that Plaintiff had caused injuries to Ms. Therrien that required
hospitalization. Plaintiff alleges that this statement is false. The affidavit allegedly
omitted information obtained from Officer Tkac'sinterviews with Mr. Diaz on
September 23 and 27,2010 and Ms. Therrien on September 27, 2010.
When issuing Plaintiffs conditions of release on September 27,2010, the state
court trial judge was allegedly not aware of the eXCUlpatory information that Mr. Diaz
and Ms. Therrien had provided to Officer Tkac. One of Plaintiffs conditions of release
was to not have contact with Ms. Therrien. As a result, Ms. Therrien moved out of Room
130 and into another unit at the Shady Lawn Motel. Despite the fact that Ms. Therrien
and Plaintiff were not residing together and had no direct contact, Officers Cutting and
Roberts, on more than one occasion, allegedly instructed the property manager at the
Shady Lawn Motel that Plaintiff could no longer reside there due to his conditions of
release. Plaintiff alleges that, in fact, the conditions of release expressly permitted

5 "Any

person who attempts to cause or wilfully or recklessly causes bodily injury to a family or
household member, or wilfully causes a family or household member to fear imminent serious
bodily injury shall be imprisoned not more than 18 months or fined not more than $5,000.00, or
both." 13 V.S.A. § 1042.
4

Plaintiffs return to the Shady Lawn Motel and contained no "foot restraints." Id. at'll 28.
On March 31, 2011, the domestic assault charge against Plaintiff was dismissed.
Plaintiffs Amended Complaint asserts "[t]here have been several recent instances
of Hartford Police Department officers violating individual constitutional rights." Id. at'll
29. Defendant cites State v. Para, 2012 VT 53, 54 A.3d 516, Galloway v. Town of

Hartford, 2012 VT 61, 57 A.3d 684, and Burwell v. Peyton, 5:12-cv-166. His Amended
Complaint provides no further details regarding these cases.

II.

Legal Analysis and Conclusions.
A.

Standard of Review.

"In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the
complaint." DiFalco v. MSNBC Cable L.L.c., 622 F.3d 104, 111 (2d Cir. 2010).
"[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for relief ... [is] a context­
specific task that requires the reviewing court to draw on its judicial experience and
common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal citation omitted).
"When there are well-pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement to relief." Id.; see

also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
However, "legal conclusions," or "[t]hreadbare recitals of the elements ofa cause
of action, supported by mere conclusory statements, do not suffice." Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks
omitted). To survive a motion to dismiss, a claim must contain factual allegations
sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at
555. "While legal conclusions can provide the framework of a claim, they must be
supported by factual allegations." Iqbal, 556 U.S. at 679.

5

B.

Whether Plaintiff Has Pled Facts Plausibly Stating a Claim of
Supervisory Liability Against Officers Cutting and Roberts.

In Count 2, Plaintiff alleges that Officers Cutting and Roberts are liable under 42
U.S.C. § 1983 for damages arising from the alleged de/acto policies, practices, customs,
and usages that resulted in the unconstitutional conduct of Officer Tkac and the unknown
police officers. He further alleges that Officers Cutting and Roberts failed to adequately
train and supervise Officer Tkac and the unknown police officers, which constituted
deliberate indifference to Plaintiffs rights under the Fourth and Fourteenth Amendments.
Officers Cutting and Roberts respond that the facts in Plaintiffs Amended Complaint do
not plausibly support Plaintiffs allegations of supervisory liability.
"In a § 1983 suit ... the term 'supervisory liability' is a misnomer. Absent
vicarious liability, each Government official, his or her title notwithstanding, is only
liable for his or her own misconduct." Iqbal, 556 U.S. at 677. A supervisor thus cannot
be held liable under § 1983 under a theory of respondeat superior. See Poe v. Leonard,
282 F.3d 123, 134 (2d Cir. 2002) ("A supervisor may not be held liable under section
1983 merely because his subordinate committed a constitutional tort."). Instead, "a
plaintiff must plead that each Government-official defendant, through the official's own
individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. "Supervisory
liability is a concept distinct from municipal liability, and is 'imposed against a
supervisory official in his individual capacity for his own culpable action or inaction in
the training, supervision, or control of his subordinates.'" Odom v. Matteo, 772 F. Supp.
2d 377, 403 (D. Conn. 2011) (quoting Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir.
1987)).
Prior to Iqbal, the Second Circuit required a plaintiff to allege one of the following
for supervisory liability under § 1983:
(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation through a
report or appeal, failed to remedy the wrong, (3) the defendant created a
policy or custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, (4) the defendant was
grossly negligent in supervising subordinates who committed the wrongful
6

acts, or (5) the defendant exhibited deliberate indifference to the rights of
[persons] by failing to act on information indicating that unconstitutional
acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Subsequently, in Iqbal, the plaintiff
argued that "a supervisor's mere knowledge of his subordinate's discriminatory purpose
amounts to the supervisor's violating the Constitution." Iqbal, 556 U.S. at 677. The
Court rejected this argument, finding it inconsistent with the rule applicable to § 1983
cases "that [supervisors] may not be held accountable for the misdeeds of their agents."

Id. The Second Circuit has recognized that, in light of Iqbal, not all of the Colon factors
may have survived, but it has yet to definitively identify which factors remain applicable.

See Reynolds v. Barrett, 685 F.3d 193,205 n.14 (2d Cir. 2012) (observing that "Iqbal
has, of course, engendered conflict within our Circuit about the continuing vitality of the
supervisory liability test set forth in [Colon,]" but declining to identify those factors that
remain viable and explaining that "the fate of Colon is not properly before us").
Some district courts within the Second Circuit have asserted that "[0]nly the first
and part of the third Colon categories pass Iqbal's muster[.]" Bellamy v. Mt. Vernon

Hasp., 2009 WL 1835939, at *1-2 (S.D.N.Y. June 26, 2009); see also Newton v. City of
New York, 640 F. Supp. 2d 426,448 (S.D.N.Y. 2009) ("[P]assive failure to train claims
pursuant to section 1983 have not survived the Supreme Court's recent decision in

Ashcroft v. Iqbal."); Joseph v. Fischer, 2009 WL 3321011, at *15 (S.D.N.Y. Oct. 8,
2009) ("Plaintiffs claim, based on [defendant's] 'failure to take corrective measure,' is
precisely the type of claim Iqbal eliminated."). However, other district courts have
concluded that "the five Colon categories supporting personal liability of supervisors still
apply as long as they are consistent with the requirements applicable to the particular
constitutional provision alleged to have been violated." Qasem v. Taro, 737 F. Supp. 2d
147, 152 (S.D.N.Y. 2010). "Thus ... where the claim does not require a showing of
discriminatory intent, the personal-involvement analysis set forth in Colon should still
apply." Alli v. City ofNew York, 2012 WL 4887745, at *6 (S.D.N.Y. Oct. 12,2012); see

also Sash v. United States, 674 F. Supp. 2d 531,544 (S.D.N.Y. 2009) ("It was with

7

intent-based constitutional claims in mind, specifically racial discrimination, that the
Supreme Court rejected the argument that 'a supervisor's mere knowledge of his
subordinate's discriminatory purpose amounts to the supervisor's violating the
Constitution.' Where the constitutional claim does not require a showing of
discriminatory intent, but instead relies on the unreasonable conduct or deliberate
indifference standards of the Fourth and Eighth Amendments, the personal involvement
analysis set forth in Colon v. Coughlin may still apply.") (citation omitted). This latter
approach appears to reflect the majority view. See Toliver v. NY. C. Dep 't ofCorr., 2012
WL 5426658, at *4 (S.D.N.Y. Oct. 10,2012) ("[T]he majority view is where 'the
constitutional claim does not require a showing of discriminatory intent ... the personal
involvement analysis set forth in Colon v. Coughlin may still apply. "') (quoting Shepherd
v. Powers, 2012 WL 4477241, at *10 (S.D.N.Y. Sept. 27, 2012)). Accordingly, because
Plaintiffhas not asserted intent-based discrimination claims, but instead relies on claims
under the Fourth and Fourteenth Amendment, the court examines the Amended
Complaint to determine whether Plaintiffhas adequately pled supervisory liability against
Officers Cutting and Roberts under any of the five Colon factors.
Plaintiffs Amended Complaint sets forth allegations that Officers Cutting and
Roberts "had in effect de facto policies, practices, customs and usages" that caused the
unconstitutional actions of Officer Tkac and the unknown police officers. (Doc. 27-2 at ~
38.) He also alleges that Officers Cutting and Roberts failed to train and supervise law
enforcement officers, as demonstrated by the alleged previous incidences of police
misconduct, and that this failure amounted to deliberate indifference to the rights of
Plaintiff Thus, only the third, fourth, and fifth Colon factors must be addressed.
The only factual allegations supporting Plaintiffs customs and policies and
deliberate indifference claims are references to the three cases, which allegedly relate to
reports of unconstitutional conduct by Hartford police officers. Plaintiff alleges that
Officers Cutting and Roberts were aware of these alleged constitutional violations, but
failed to rectify or address the ongoing violations, creating a de facto policy or custom
that such behavior was acceptable.
8

The timing of events negates Plaintiffs claims. Burwell v. Peyton, 5:12-cv-166,
was filed, and both State v. Paro, 2012 VT 53, 54 A.3d 516, and Galloway v. Town of
Hartford, 2012 VT 61, 57 A.3d 684, were decided in 2012, almost two years after the
events alleged in Plaintiffs Amended Complaint. Therefore, the court cannot reasonably
infer that Officers Cutting and Roberts were on notice of these previously alleged
constitutional violations such that their inaction could be seen as "deliberate indifference
to the possibility that ... subordinates would violate [Plaintiffs] constitutional rights."
Pettus v. Morgenthau, 554 F.3d 293,300 (2d Cir. 2009); see also Poe, 282 F.3d at 140
(explaining that a supervisor is "liable for his deliberate indifference to the rights of
others by his failure to act on information indicating unconstitutional acts were
occurring") (emphasis supplied). Nor can the court reasonably infer that the officers
sanctioned a policy or custom that allowed for unconstitutional conduct. See Plair v. City
ofNew York, 789 F. Supp. 2d 459,466 (S.D.N.Y. 2011) (finding plaintiff failed to state a
claim for supervisory liability when allegations that supervisors were aware of prior
reports of misconduct and therefore "allowed the continuation of a policy or custom" of
unconstitutional practice were conclusory). On this basis alone, dismissal is warranted
with regard to Plaintiffs claims that Officers Cutting and Roberts allowed customs and
policies sanctioning unconstitutional conduct or acted with deliberate indifference with
respect to addressing prior constitutional violations. Compare Argueta v.

u.s.

Immigration & Customs Enforcement, 643 F.3d 60, 75 (3d Cir. 2011) (concluding that
because prior cases alleging misconduct "were filed after at least some of the
[misconduct] specifically alleged in the Second Amended Complaint took place,"
plaintiffs had not plausibly pleaded that defendants "had legally sufficient notice of the
underlying unconstitutional conduct of their subordinates"), with D 'Olimpio v. Crisafi,
718 F. Supp. 2d 340,347-48 (S.D.N.Y. 2010) (refusing to dismiss claims of supervisory
liability when the complaint incorporated a report summarizing an investigation into
misconduct that took place prior to the allegedly wrongful conduct against the plaintiff).
Plaintiff further alleges that Officers Cutting and Roberts failed to adequately
supervise and train the police officers in Hartford. This alleged failure will satisfy the
9

fourth Colon factor if Officers Cutting and Roberts "knew or should have known that
there was a high degree of risk that [subordinates] would behave inappropriately ... but
either deliberately or recklessly disregarded that risk by failing to take action that a
reasonable officer would find necessary to prevent such a risk[.]" Poe, 282 F.3d at 142.
Plaintiff refers to cases filed against Hartford as evidence that Officers Cutting and
Roberts were on notice of allegedly unlawful conduct of Hartford police officers. These
cases, which were not filed or addressed until years after the conduct alleged in this case,
do not "nudge[]" Plaintiff's claim of failure to train "across the line from conceivable to
plausible[.]" Twombly, 550 U.S. at 547. Beyond Plaintiff's references to these cases,
which could not have put Officers Cutting and Roberts on notice, Plaintiff has not
asserted any other facts supporting his claim that Officers Cutting and Roberts failed to
supervise and train.
With respect to Officer Cutting, Plaintiff further alleges that Officer Cutting
"observed" at least one of the constitutional violations when the unknown police officers
allegedly arrested Plaintiff without a warrant and without probable cause. (Doc. 27-2 at
'23.) Plaintiff asserts that Officer Cutting's presence and failure to "object to or correct
the conduct" effectively condoned the violations. (Doc. 24 at 5.) At this stage in the
proceeding, Plaintiff's singular allegation that Officer Cutting "observed" Plaintiff's
allegedly warrantless arrest without objection does not plausibly lead to an inference that
Officer Cutting's supervision of the unknown officers who arrested Plaintiff was grossly
negligent. 6 Plaintiffhas not alleged facts that, taken as true, would establish that Officer

Officer Cutting's mere presence does not satisfy the first Colon factor of directly participating
in the constitutional violation. See Colon, 58 F.3d at 873. "'[D]irect participation' as a basis of
liability in this context requires intentional participation in the conduct constituting a violation of
the victim's rights by one who knew the facts rendering it illegaL" Provost v. City o/Newburgh,
262 F.3d 146, 155 (2d Cir. 2001); see also Greene v. Barber, 310 F.3d 889,899 (6th Cir. 2002)
(explaining that "[s]upervisory liability under § 1983 does not attach when premised on a mere
failure to act; it 'must be based on active unconstitutional behavior[,]'" the court found no
liability for police chief who arrived for only the final moments of the arrest, but did not
participate in the arrest itself) (citation omitted); Rider v. Yates, 2010 WL 2465402, at *4
(E.D. Cal. June 15,2010) (granting motion to dismiss even though defendant was present during
6

10

Cutting was on notice that Hartford police officers had committed prior unconstitutional
conduct and that Officer Cutting's failure to respond was therefore grossly negligent, as
was the case in Johnson v. Newburgh Enlarged School District, 239 F.3d 246,255 (2d
Cir. 2001) (concluding allegations of gross negligence were plausible when plaintiff
alleged that, at the time plaintiff was assaulted by his teacher, supervisors knew that the
teacher had assaulted other students on four previous occasions). Moreover, the
allegation that Officer Cutting "observed" the arrest, without any additional factual
allegations, does not make it plausible that Officer Cutting observed plainly
unconstitutional conduct and that his failure to stop that conduct was therefore grossly
negligent. Cf Rosales v. Fischer, 2009 WL 928260, at *9 (S.D.N.Y. Mar. 31,2009)
(finding complaint adequately stated claim for supervisory liability when it alleged that
supervisor was both present and complicit in the incident that included "repeatedly
knocking Plaintiff s head against the cell wall ... when Plaintiff was handcuffed and
unresisting").
In sum, the court finds that Plaintiff has not plausibly stated a claim that Officers
Cutting and Roberts employed de facto policies and customs resulting in unconstitutional
conduct or acted with deliberate indifference in failing to act on reports of
unconstitutional incidents. The court thus GRANTS Officer Cutting's and Roberts's
motions to dismiss these claims. With respect to Plaintiffs claims of failure to
adequately train and supervise, because Plaintiff has not plausibly alleged that Officer
Cutting or Officer Roberts acted with gross negligence or deliberate indifference to
Defendant's constitutional rights, the court also GRANTS the motion to dismiss with
respect to this claim. With respect to Plaintiffs additional claim that Officer Cutting
observed his arrest and therefore condoned the alleged unconstitutional conduct, Plaintiff
has not plausibly alleged that Officer Cutting acted with gross negligence in supervising
the unknown police officers who arrested Plaintiff. Accordingly, the court GRANTS the
motion to dismiss with respect to this claim as well.
discussions of allegedly unconstitutional conduct because "[t]here are no facts alleged indicating
direct participation by [defendant]").
11

C.

Whether Plaintiff Has Adequately Alleged that Hartford Employed
Policies, Practices, and Customs Resulting in Unconstitutional Conduct
and Failed to Adequately Train and Supervise Police Officers.

Plaintiff alleges in Count 2 that Hartford is liable for employing policies, practices,
customs, and usages that caused the unconstitutional conduct of Officer Tkac and the
unknown police officers. He further asserts that Hartford failed to adequately train and
supervise Officer Tkac and the unknown police officers, amounting to deliberate
indifference to Plaintiffs right to be free from unreasonable seizures under the Fourth
and Fourteenth Amendments.
"[A] municipality may not be held liable [under 42 U.S.C. § 1983] solely on the
basis of respondeat superior." Powell v. Gardner, 891 F.2d 1039, 1045 (2d Cir. 1989);

see also Monell v. Dep 't ofSocial Servs., 436 U.S. 658, 694 n.58 (1978) ("[T]he mere
right to control without any control or direction having been exercised and without any
failure to supervise is not enough to support § 1983 liability."). Under § 1983, "a
municipality may be held liable for a constitutional violation if the plaintiff can prove that
the violations resulted from a municipality's customs or policies." Smith v. Edwards, 175
F.3d 99,107 (2d Cir. 1999). Thus, for a municipality to be held liable under § 1983 for
the unconstitutional actions of its employees, "a plaintiff is required to plead and prove
three elements: (1) an official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right." Wray v. City ofNew York, 490 F.3d
189, 195 (2d Cir. 2007). However, a custom or practice need not be embodied by rule, it
can be the basis for a § 1983 action if the "practice ... 'was so persistent or widespread
as to constitute a custom or usage with the force oflaw.'" Green v. City ofNew York,
465 F.3d 65, 80 (2d Cir. 2006) (quoting Patterson v. Cnty. ofOneida, 375 F.3d 206,226
(2d Cir. 2004)). In fact, "Monell's policy or custom requirement is satisfied where a local
government is faced with a pattern of misconduct and does nothing, compelling the
conclusion that the local government has acquiesced in or tacitly authorized its
subordinates' unlawful actions." Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).

12

"The failure to train or supervise city employees may constitute an official policy
or custom if the failure amounts to 'deliberate indifference' to the rights of those with
whom the city employees interact." Wray, 490 F.3d at 195; see also Okin v. Vill. of

Cornwall-on-Hudson Police Dep't, 577 F.3d 415,440 (2d Cir. 2009) ("Municipal
liability may also be premised on a failure to train employees when inadequate training
'reflects deliberate indifference to ... constitutional rights."') (quoting City ofCanton v.

Harris, 489 U.S. 378, 392 (1989)). However, "[a] municipality's culpability for a
deprivation of rights is at its most tenuous where a claim turns on a failure to train."

Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).
Deliberate indifference may be found when:
(1) " ... a policymaker knows 'to a moral certainty' that her employees
will confront a given situation"; (2) ''that the situation either presents the
employee with a difficult choice of the sort that training or supervision will
make less difficult or that there is a history of employees mishandling the
situation"; and (3) "that the wrong choice by the ... employee will
frequently cause the deprivation of a citizen's constitutional rights."

ld. (quoting Walker v. City ofNew York, 974 F.2d 293, 297-98 (2d Cir. 1992)).
Deliberate indifference requires Plaintiff to allege facts that, if proved, demonstrate that
"municipal policymakers made a 'deliberate choice ... from among various alternatives'
not to fully train employees." Robischung-Walsh v. Nassau Cnty. Police Dep 't, 699 F.
Supp. 2d 563,566 (E.D.N.Y. 2010) (citations omitted).
Hartford cites Amnesty America v. Town of West Hartford, 361 F.3d 113 (2d Cir.
2004), for the proposition that "plaintiff [must] identify a specific deficiency in the city's
training program and establish that that deficiency is 'closely related to the ultimate
injury,' such that it 'actually caused' the constitutional deprivation." ld. at 129 (quoting

Canton, 489 U.S. at 390-91). In Amnesty, which was decided on a motion for summary
judgment, the Second Circuit noted that "[i]t is unlikely that a plaintiff would have
information about the city's training programs or about the cause of the misconduct at the
pleading stage, and therefore need only plead that the city's failure to train caused the
constitutional violation." ld. at 130 n.1 O. Amnesty was decided prior to Iqbal and

13

Twombly, after which many district courts within the Second Circuit, in deciding motions
to dismiss, "have generally required that plaintiffs provide more than a simple recitation
of their theory of [municipal] liability[.]" Simms v. City ofNew York, 2011 WL 4543051,
at *2 n.3 (E.D.N.Y. Sept. 28, 2011) (collecting cases), ajJ'd, 480 F. App'x 627 (2d Cir.
2012). Likewise, this court concludes that a plaintiff pleading failure to train must
provide more than "a simple recitation" of the theory of municipal liability. See Iqbal,
556 U.S. at 679 (requiring "well-pleaded factual allegations" to "plausibly give rise to an
entitlement to relief'); Twombly, 550 U.S. at 555-56 (same); see also Simms, 2011 WL
4543051, at *2 n.3 (concluding that Amnesty's pronouncement that a plaintiff "need only
plead that the city's failure to train caused the constitutional violation" was dicta that
cannot survive the Supreme Court's subsequent and unequivocal guidance in both Iqbal
and Twombly).
To survive a motion to dismiss, Plaintiffs allegations must also plausibly support
a conclusion that either (I) Hartford employed de facto customs and policies that
sanctioned the unconstitutional actions of its police officers; or (2) that Hartford acted
with deliberate indifference in failing to adequately train its officers. While Plaintiff
alleges at least two reported incidents of alleged unconstitutional actions by Hartford
police officers, 7 these reports of misconduct were made after the events of which Plaintiff
complains. Therefore, it is not possible that the conduct alleged in these reports could
have put policymakers on notice of a developing de facto policy.
In Walker, the Second Circuit held that, "[ w ]hile it is reasonable for city
policymakers to assume their employees possess common sense, where there is a history
of conduct rendering this assumption untenable, city policymakers may display deliberate
indifference by doing so." Walker, 974 F.2d at 300; see also Ricciuti v. NY.C Transit

Auth., 941 F.2d 119, 123 (2d Cir. 1991) (explaining that a policy may be inferred by
7 The limited number of prior incidents may, itself, render Plaintiffs allegations insufficient to
plausibly show a policy or custom. See Giaccio v. City ofNew York, 308 F. App'x 470, 472 (2d
Cir. 2009) (finding that allegations of, at most, four prior incidents of misconduct "falls far short
of establishing a practice that is 'so persistent or widespread' as to justify the imposition of
municipal liability").

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"evidence that the municipality had notice of but repeatedly failed to make any
meaningful investigation into charges that police officers had used excessive force in
violation of the complainants' civil rights"); Graham v. Cnty. ofErie, 2012 WL 1980609,
at *6 (W.D.N.Y. May 31,2012) (refusing to dismiss complaint that alleges "[t]he County
and its supervisory employees were made aware of [similar] allegations from the Justice
Department in its June of 2009 'findings letter,' which was received well before the
occurrence of the events alleged here"). This case is distinguishable from Walker and it
progeny because, although the Amended Complaint alleges two instances of misconduct,
no misconduct had yet been found and thus these incidents did not put Hartford and its
policymakers on notice in advance of the misconduct alleged by Plaintiff. See Simms v.
City ofNew York, 480 F. App'x 627, 630 (2d Cir. 2012) (affirming motion to dismiss
claims against the city for failure to train, noting that other cases alleging prior
misconduct "establish ... that other individuals have plausibly alleged that they
experienced similar violations of their constitutional rights ... not that those violations
actually occurred").
Plaintiff's conclusory allegations that Hartford has failed to train its police officers
do not constitute "facts which demonstrate that the need for training was obvious such as
there were proof of repeated complaints of similar civil rights violations followed by no
meaningful attempt on the part of [Hartford] to investigate or to forestall such incidents."
Zalaski v. City ofHartford, 2011 WL 6130770, at *7 (D. Conn. Dec. 8,2011). Plaintiff
has thus failed to adequately allege that the constitutional violations arose from a de facto
policy or custom or that Hartford acted with deliberate indifference in failing to
adequately train its police officers. Accordingly, Hartford's motion to dismiss Count 2 is
GRANTED.
D.

Whether Hartford Is Entitled to Municipal Immunity with Respect to
Plaintiff's State Law Negligence Claim.

Finally, Hartford moves to dismiss Plaintiff's state law negligence claim against it,
set forth in Count 7. Plaintiff alleges that Hartford breached its obligation to ensure that
law enforcement officers perform their duties in a lawful manner and do not violate the
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constitutional rights of others. Hartford asserts that it is entitled to municipal immunity
for this claim. Plaintiff counters that Hartford is not entitled to municipal immunity
because "the establishment and supervision of a police force and training and discipline
oversight is a proprietary function," a function to which municipal immunity does not
attach. (Doc. 23 at 4-5.) Plaintiff further asserts that '''good faith' is required in order for
a municipality to enjoy immunity" and that Defendants have not acted in good faith.
(Doc. 23 at 6.)
The court has supplemental jurisdiction over Plaintiff s state law claims pursuant
to 28 U.S.C. § 1367(a) and is thus required to apply Vermont law to substantive issues.

See Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir. 1991) ("In
applying pendent jurisdiction, federal courts are bound to apply state substantive law to
the state claim."); see also Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996) (allowing
defendants to invoke state statute conferring immunity when analyzing pendant state law
claims brought in federal court).
Under Vermont law, municipalities are "liable only where the negligent act arises
out of a duty that is proprietary in nature as opposed to governmental." McMurphy v.

State, 757 A.2d 1043,1047 (Vt. 2000) (quoting Hillerby v. Town ofColchester, 706 A.2d
446,447 (Vt. 1997)) (internal quotation marks omitted). The rationale for distinguishing
between these two municipal functions is that "municipalities perform governmental
responsibilities for the general public as instrumentalities of the state," but "they conduct
proprietary activities only for the benefit of the municipality and its residents." Hillerby,
706 A.2d at 447.
The Vermont Supreme Court recently addressed this distinction in Sobel v. City of

Rutland, 2012 VT 84, 60 A.3d 625, explaining that:
Governmental functions are those performed when a municipality
"exercise[s] those powers and functions specifically authorized by the
Legislature, as well as those functions that may be fairly and necessarily
implied or that are incident or subordinate to the express powers."
Proprietary activities, on the other hand, are, essentially, commercial
activities performed by a municipality in its corporate capacity, for the

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benefit of the municipality and its residents, and unrelated to its "legally
authorized activity."
Id. at ~ 14, 60 A.3d at 630 (internal citations omitted). The Sobel court concluded that

tax estimates performed by a tax assessor, while not required for the performance of
statutory duties, are nonetheless governmental functions because they are "ancillary and
related to governmental functions." Id. at ~ 16, 60 A.3d at 630. Moreover, the court
noted that "[m]unicipalities derive no income or similar commercial return from
estimating taxes." Id.
Courts in Vermont have consistently found that police work is a governmental
function. See Franklin Cnty. Sheriff's Office v. St. Albans City Police Dep't, 2012 VT
62, ~ 17, 58 A.3d 207, 213-14 ("[T]he provision of police services in Vermont occurs
outside the realm of commerce because it involves no interchange of goods or
commodities on the open market. It is a governmental function provided only by
governmental entities for the benefit of the public."); Carty's Adm 'r v. Vi!!. of Winooski,
62 A. 45, 46 (Vt. 1905) ("One of the powers of government inherent in every sovereignty
is the governing and regulating of its internal police .... [T]his power may be delegated
by a state to municipal corporations, to be exercised within their corporate limits; but,
whether the power be so delegated or otherwise, it is a governmental function, founded
upon the duty of the state to protect the public safety, the public health, and the public
morals."); see also MacLeod v. Town ofBrattleboro, 2012 WL 5949787, at *21 (D. Vt.
Nov. 28, 2012) (explaining that "[m]ost courts ... have concluded that training police
officers and evaluating their conduct both fall within the governmental function of police
work"); Treon v. Whipple, 212 F. Supp. 2d 285,290 (D. Vt. 2002) (finding city was
entitled to immunity with respect to claim for failing to train and supervise police
officers); Kent v. Katz, 146 F. Supp. 2d 450,458-59 (D. vt. 2001) (upholding the
categorization of police work as a governmental function where plaintiff alleged the
municipality failed to properly train and supervise its officers); Decker v. Fish, 126 F.
Supp. 2d 342, 346 (D. Vt. 2000) ("[T]here can be little question that police work is a

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quintessential governmental function.") (citing Clain v. City ofBurlington, 202 F.2d 532,
533 (2d Cir. 1953)).
Plaintiff cites Kelly v. Town ofBrattleboro, 641 A.2d 345 (Vt. 1993) and Fuller v.

City ofRutland, 171 A.2d 58 (Vt. 1961), and asks the court to find that "the establishment
and supervision of a police force and training and discipline oversight is a propriety
function[.]" (Doc. 23 at 5.) Analogizing the establishment, supervision, and training of a
police force to the reinstallation of a water service pipe, see Kelly, 641 A.2d at 346, or the
building and maintenance of sewers, see Fuller, 171 A.2d at 59, is unhelpful in light of
the ample precedent that police services, including the training of officers, is
governmental. The parties do not dispute that Officer Tkac and the unknown police
officers were performing police services when the allegedly unconstitutional activities
occurred. As a result, Hartford's role in training and supervising officers in the
performance of these activities was a governmental function. See MacLeod, 2012 WL
5949787 at *22 ("[E]ven ifhiring, training and supervising police officers were not
themselves governmental functions, they are each necessary to carrying out the
governmental function of police work, and they are not performed for income or other
commercial gain. Thus, they are, at a minimum, 'reasonably related to the governmental
function of [police work]."') (citation omitted).
Plaintiff further asserts that "[a] finding of good faith is necessary in order for
immunity to protect a municipality from liability." (Doc. 23 at 5.) In making this
argument, Plaintiff conflates the requirements for state law qualified immunity for
government officers and municipal immunity. In Murray v. White, 587 A.2d 975 (Vt.
1991), the only case cited by Plaintiff for this good faith requirement, the court analyzed
whether a public official is entitled to qualified immunity. ld. at 978 ("Qualified
immunity attaches to public officials who are ... acting in good faith[.]").
Because training and supervising police officers are governmental functions, the
court hereby GRANTS Hartford's motion to dismiss Plaintiffs state law claim against it
for negligence, as set forth in Count 7.

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CONCLUSION

For the reasons stated above, the court GRANTS the motion to dismiss Plaintiffs
claims set forth in Count 2 against Officer Cutting and Roberts. The court also GRANTS
Hartford's motion to dismiss Plaintiffs § 1983 claims for municipal liability in Count 2,
and GRANTS Hartford's motion to dismiss Plaintiffs state law negligence claim in
Count 7 as it applies to Hartford.
SO ORDERED.
Dated at Rutland, in the District of Vermont, this

L

~
day of April, 2013.

nstina Reiss, Chief Judge
United States District Court

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