SOLTIS v. KOTENSKI

No. 3:96-CV-01170WWE

63 F. Supp.2d 187 (1999) | Cited 0 times | D. Connecticut | July 9, 1999

RULING ON DEFENDANTS CITY OF DERBY, DERBY POLICE DEPARTMENT, PASQUALE GUILANO AND JOSEPH IACUONE MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff Stephanie Soltis brings this eight-count complaintagainst, inter alia, the City of Derby, the Derby PoliceDepartment, Chief of Police Pasquale Guliano, and Officer JosephIacuone of the Derby Police Department (the "City and Police").The first five counts are state law claims brought against theKotenskis and Iacuone. The remaining three counts are broughtagainst the City and Police and purport to set forth claims forconstitutional violations pursuant to 42 U.S.C. § 1983.

The City and Police now move for summary judgment.

STATEMENT OF FACTS

The Statement of Facts are distilled from the complaint, theparties' moving papers and affidavits filed therewith, and theirLocal Rule 9(c) statements. The Court sets forth only those factsdeemed necessary to an understanding of the issues in, anddecision rendered on, this motion.

On October 10, 1994 the Derby Police Department received atelephone call from Richard Kotenski requesting assistance.Office Iacuone was dispatched to meet Kotenski and his mother,Patricia Kotenski, at Soltis' apartment. Soltis was Kotenski'shis ex-girlfriend. Kotenski wanted to remove a radio belonging tohim from Soltis' automobile. Officer Iacuone and Kotenski wentupstairs to plaintiff's apartment. The officer knocked on herdoor and she answered. He inquired of plaintiff as to whetherKotenski could retrieve his radio. She made no reply but walkedaway, returning with a set of keys to the automobile.

Plaintiff then left the apartment with Iacuone and Kotenski,came downstairs and unlocked her automobile. Kotenski removed theradio and then asked plaintiff if she wanted him to reinstall herold radio, which was in the trunk. She answered in theaffirmative and Kotenski began installing the old radio. WhileKotenski was installing the radio, Iacuone asked plaintiff towait on the stairs to her apartment, a request with which shecomplied.

Approximately fifty minutes after his arrival, Iacuone wasadvised by his sergeant that he had spent enough time atplaintiff's and that he was needed elsewhere. The officer advisedboth parties of this and told plaintiff to remain in herapartment while the final work on the radio was being completed.When asked if she wanted the officer to have Kotenski leave priorto the completion of the reinstallation, she answered in thenegative. Iacuone also told her that if she had any problemsafter he left to immediately call the Derby Police Department forfurther assistance.

When he left plaintiff's apartment, Iacuone instructed Kotenskito finish the reinstallation and then leave, to which Kotenskiagreed. Iacuone then left.

On October 11, 1994, plaintiff filed a complaint with the DerbyPolice Department alleging that after Iacuone left and Kotenskihad completed the work on the radio, she had then been assaultedand battered by him and his mother, Patricia. Nowhere in therecord does it appear that she called the Derby police forimmediate assistance, as instructed by Iacuone.

LEGAL ANALYSIS

I. The Standard of Review

In a motion for summary judgment the burden is on the movingparty to establishthat there are no genuine issues of material fact in dispute andthat it is entitled to judgment as a matter of law. Fed. R.C.V.P.56(c). See also Anderson v. Liberty Lobby, 477 U.S. 242, 256,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (plaintiff must presentaffirmative evidence in order to defeat a properly supportedmotion for summary judgment).

If the nonmoving party has failed to make a sufficient showingon an essential element of his case with respect to which he hasthe burden of proof at trial, then summary judgment isappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In such a situation, therecan be `no genuine issue as to any material fact,' since acomplete failure of proof concerning an essential element of thenonmoving party's case necessarily renders all other factsimmaterial." Id. at 322-23, 106 S.Ct. 2548. Accord, Goenaga v.March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d.Cir. 1995) (movant's burden satisfied by showing if it can pointto an absence of evidence to support an essential element ofnonmoving party's claim).

The court is mandated to "resolve all ambiguities and draw allinferences in favor of the nonmoving party. . . ." Aldrich v.Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.), cert.denied, 506 U.S. 965, 113 S.Ct. 440, 121 L.Ed.2d 359 (1992)."Only when reasonable minds could not differ as to the import ofthe evidence is summary judgment proper." Bryant v. Maffucci,923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112S.Ct. 152, 116 L.Ed.2d 117 (1991). If the nonmoving party submitsevidence which is "merely colorable", or is not "significantlyprobative," summary judgment may be granted. Anderson, 477 U.S.at 249-50, 106 S.Ct. 2505.

"[T]he mere existence of some alleged factual dispute betweenthe parties will not defeat an otherwise properly supportedmotion for summary judgment; the requirement is that there be nogenuine issue of material fact. As to materiality, thesubstantive law will identify which facts are material. Onlydisputes over facts that might affect the outcome of the suitunder the governing law will properly preclude the entry ofsummary judgment. Factual disputes that are irrelevant orunnecessary will not be counted." Id. at 247-48, 106 S.Ct. 2505(emphasis in original).

II. The Standard As Applied

A. The Claims Against the Derby Police Department

Although the claim against the Derby Police Department has beenwaived by plaintiff due to her failure to respond to defendants'moving papers on the issues concerning the Department, the Courtwill comment briefly on defendants' claims that a policedepartment cannot be liable under Section 1983. This is not anaccurate statement of the law. A municipality may be held liable,as may a municipality's police department, when plaintiff's harmwas caused by a constitutional violation and where themunicipality or police department as a subdivision thereof isresponsible for that violation. See Collins v. City of HarkerHeights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).Inasmuch as the Derby Police Department, as a whole, was notinvolved in any constitutional violation, it is for this reasonthat summary judgment will granted as to the police department.

B. The Eighth Amendment Claim

The Sixth Count alleges that plaintiff was subjected to crueland unusual punishment by defendants. Inasmuch as the EighthAmendment only applies to convicted persons, summary judgmentwill be granted as to the Sixth Count. See Ingraham v. Wright,430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).

C. Section 1983 Claims Against the Individual Police Defendants

Plaintiff alleges in the Seventh and Eighth Counts of hercomplaint that theindividual police defendants violated her fourteenth amendmentrights by failing to fulfill their affirmative duty to exerciseordinary care for her protection by keeping her safe and freefrom harm.

In order to state a claim pursuant to Section 1983, a plaintiffmust allege (1) that the challenged conduct was attributable atleast in part to a person acting under color of state law, and(2) that such conduct deprived the plaintiff of a right,privilege or immunity secured by the Constitution or laws of theUnited States. Dwares v. City of New York, 985 F.2d 94, 98 (2dCir. 1993).

Defendants argue that summary judgment against the plaintiff isappropriate because the plaintiff has failed to demonstrate aconstitutional deprivation.

State officials do not have a general constitutionalresponsibility to safeguard members of the general public againstprivate violence. DeShaney v. Winnebago County Dep't of SocialServices, 489 U.S. 189, 197-201, 109 S.Ct. 998, 103 L.Ed.2d 249(1989). However, in DeShaney, the Supreme Court distinguishedthis rule from instances where the state created the risk facedby the plaintiff.

Interpreting DeShaney, the Second Circuit established that aconstitutional violation occurs only where the state has createdor assisted in increasing the danger to the victim. Dwares, 985F.2d at 99. Courts have recognized Section 1983 liabilitypursuant to such state-created danger where state actors commitaffirmative acts using their authority to create an opportunityfor harm to the plaintiff that would not otherwise have existed.Kneipp v. Tedder, 95 F.3d 1199, 1208 (3rd Cir. 1996).

In contrast, nonfeasance does not give rise to a constitutionalviolation on which to predicate Section 1983 liability under thestate-created danger theory. Dwares, 985 F.2d at 99(allegations that police officer failed to act on reports of pastviolence do not implicate a constitutional violation); D.R. byL.R. v. Middle Bucks Area Vocational Tech. School,972 F.2d 1364, 1376 (3d Cir. 1992) (school's failure to report,investigate and stop physical and sexual abuse did not state aclaim for a constitutional violation).

In Dwares the complaint went well beyond allegations that thedefendant officers merely stood by and did nothing. It allegedthat the officers had conspired with "skinheads" to permit thebeating of flag burners. Thus, this was affirmative action, notinaction or nonfeasance.

The Court is not persuaded that the instant facts, even whenconstrued in the light most favorable to plaintiff, give rise toSection 1983 liability. Plaintiff has not shown that the policedepartment or individual officers thereof used their authority tocommit affirmative acts that rendered her vulnerable to a harmthat would not have otherwise occurred.

The Court will not predicate Section 1983 liability for allegedconstitutional violations based on the absence of state action toprevent any harm that occurred. Therefore, summary judgment willbe granted as to the Seventh and Eighth Counts.

D. Failure to Train and Supervise

In the Ninth Count, plaintiff alleges that the City had apolicy and custom of failing to train and supervise properly itspolice officers. Plaintiff claims that this failure resulted inthe City's and police department's decision not to take anyaction to save her from potential harm by Kotenski. Plaintiffasserts that the municipality's and police department's conductdemonstrates a deliberate indifference to her constitutionalrights to be protected from violent confrontations.

A municipality may be held liable pursuant to Section 1983where the plaintiff's harm was caused by a constitutionalviolation, and where the municipality is responsible for thatviolation. Collins v. City of Harker Heights, 503 U.S. 115, 112S.Ct. 1061, 117 L.Ed.2d 261 (1992). Failure to train and properlysupervise employees "in deliberate indifference" to the rights ofits inhabitants establishes a municipal custom or policyactionable under Section 1983. Canton v. Harris, 489 U.S. 378,389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). However, thedeficiency in training must be so obvious and so likely to resultin the violation of constitutional rights that the policy makerscan be said to have been deliberately indifferent to the need forproper training.

As the Supreme Court explained, deliberate indifference isdemonstrated when police violate constitutional rights so oftenin exercising their discretion that the need for further trainingmust have been plainly obvious to city policy makers. However,merely alleging that a municipality failed to train its employeesproperly is insufficient to establish a municipal custom orpolicy. Neighbour v. Covert, 68 F.3d 1508, 1512 (2d Cir. 1995),cert. denied, 516 U.S. 1174, 116 S.Ct. 1267, 134 L.Ed.2d 214(1996).

As noted above, there is no constitutional guarantee of minimallevels of safety and security except in narrow circumstances.DeShaney, 489 U.S. at 195, 109 S.Ct. 998. Thus, the City'sofficials cannot be said to have been deliberately indifferent toobvious training deficiencies that were likely to result in theviolation of constitutional rights. Therefore, plaintiff's claimsagainst the municipality for failure to train and properlysupervise its officers fails and summary judgment will be grantedon the Ninth Count.

E. Plaintiffs' State Law Claims

Plaintiffs' remaining five counts are based on state statutoryand common law. Having dismissed the only federal claims, theCourt will decline to exercise supplemental jurisdiction over theremaining state-law claims, pursuant to 28 U.S.C. § 1367(c)(3).

CONCLUSION

Inasmuch as plaintiff has failed to set forth genuine issues ofmaterial fact as to any essential element of her constitutionalclaims upon which she would bear the burden at trial, defendants'Motion for Summary Judgment [Doc. No. 26] is GRANTED. The Clerkis directed to enter judgment for the defendants City of Derby,Derby Police Department, Pasquale Guliano and Joseph Iacuone, Jr.

The state law claims are dismissed without prejudice to renewalin the correct jurisdiction.

The Clerk is directed to close this case.

SO ORDERED.

RULING ON DEFENDANTS CITY OF DERBY, DERBY POLICE DEPARTMENT, PASQUALE GUILANO AND JOSEPH IACUONE MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff Stephanie Soltis brings this eight-count complaintagainst, inter alia, the City of Derby, the Derby PoliceDepartment, Chief of Police Pasquale Guliano, and Officer JosephIacuone of the Derby Police Department (the "City and Police").The first five counts are state law claims brought against theKotenskis and Iacuone. The remaining three counts are broughtagainst the City and Police and purport to set forth claims forconstitutional violations pursuant to 42 U.S.C. § 1983.

The City and Police now move for summary judgment.

STATEMENT OF FACTS

The Statement of Facts are distilled from the complaint, theparties' moving papers and affidavits filed therewith, and theirLocal Rule 9(c) statements. The Court sets forth only those factsdeemed necessary to an understanding of the issues in, anddecision rendered on, this motion.

On October 10, 1994 the Derby Police Department received atelephone call from Richard Kotenski requesting assistance.Office Iacuone was dispatched to meet Kotenski and his mother,Patricia Kotenski, at Soltis' apartment. Soltis was Kotenski'shis ex-girlfriend. Kotenski wanted to remove a radio belonging tohim from Soltis' automobile. Officer Iacuone and Kotenski wentupstairs to plaintiff's apartment. The officer knocked on herdoor and she answered. He inquired of plaintiff as to whetherKotenski could retrieve his radio. She made no reply but walkedaway, returning with a set of keys to the automobile.

Plaintiff then left the apartment with Iacuone and Kotenski,came downstairs and unlocked her automobile. Kotenski removed theradio and then asked plaintiff if she wanted him to reinstall herold radio, which was in the trunk. She answered in theaffirmative and Kotenski began installing the old radio. WhileKotenski was installing the radio, Iacuone asked plaintiff towait on the stairs to her apartment, a request with which shecomplied.

Approximately fifty minutes after his arrival, Iacuone wasadvised by his sergeant that he had spent enough time atplaintiff's and that he was needed elsewhere. The officer advisedboth parties of this and told plaintiff to remain in herapartment while the final work on the radio was being completed.When asked if she wanted the officer to have Kotenski leave priorto the completion of the reinstallation, she answered in thenegative. Iacuone also told her that if she had any problemsafter he left to immediately call the Derby Police Department forfurther assistance.

When he left plaintiff's apartment, Iacuone instructed Kotenskito finish the reinstallation and then leave, to which Kotenskiagreed. Iacuone then left.

On October 11, 1994, plaintiff filed a complaint with the DerbyPolice Department alleging that after Iacuone left and Kotenskihad completed the work on the radio, she had then been assaultedand battered by him and his mother, Patricia. Nowhere in therecord does it appear that she called the Derby police forimmediate assistance, as instructed by Iacuone.

LEGAL ANALYSIS

I. The Standard of Review

In a motion for summary judgment the burden is on the movingparty to establishthat there are no genuine issues of material fact in dispute andthat it is entitled to judgment as a matter of law. Fed. R.C.V.P.56(c). See also Anderson v. Liberty Lobby, 477 U.S. 242, 256,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (plaintiff must presentaffirmative evidence in order to defeat a properly supportedmotion for summary judgment).

If the nonmoving party has failed to make a sufficient showingon an essential element of his case with respect to which he hasthe burden of proof at trial, then summary judgment isappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In such a situation, therecan be `no genuine issue as to any material fact,' since acomplete failure of proof concerning an essential element of thenonmoving party's case necessarily renders all other factsimmaterial." Id. at 322-23, 106 S.Ct. 2548. Accord, Goenaga v.March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d.Cir. 1995) (movant's burden satisfied by showing if it can pointto an absence of evidence to support an essential element ofnonmoving party's claim).

The court is mandated to "resolve all ambiguities and draw allinferences in favor of the nonmoving party. . . ." Aldrich v.Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.), cert.denied, 506 U.S. 965, 113 S.Ct. 440, 121 L.Ed.2d 359 (1992)."Only when reasonable minds could not differ as to the import ofthe evidence is summary judgment proper." Bryant v. Maffucci,923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112S.Ct. 152, 116 L.Ed.2d 117 (1991). If the nonmoving party submitsevidence which is "merely colorable", or is not "significantlyprobative," summary judgment may be granted. Anderson, 477 U.S.at 249-50, 106 S.Ct. 2505.

"[T]he mere existence of some alleged factual dispute betweenthe parties will not defeat an otherwise properly supportedmotion for summary judgment; the requirement is that there be nogenuine issue of material fact. As to materiality, thesubstantive law will identify which facts are material. Onlydisputes over facts that might affect the outcome of the suitunder the governing law will properly preclude the entry ofsummary judgment. Factual disputes that are irrelevant orunnecessary will not be counted." Id. at 247-48, 106 S.Ct. 2505(emphasis in original).

II. The Standard As Applied

A. The Claims Against the Derby Police Department

Although the claim against the Derby Police Department has beenwaived by plaintiff due to her failure to respond to defendants'moving papers on the issues concerning the Department, the Courtwill comment briefly on defendants' claims that a policedepartment cannot be liable under Section 1983. This is not anaccurate statement of the law. A municipality may be held liable,as may a municipality's police department, when plaintiff's harmwas caused by a constitutional violation and where themunicipality or police department as a subdivision thereof isresponsible for that violation. See Collins v. City of HarkerHeights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).Inasmuch as the Derby Police Department, as a whole, was notinvolved in any constitutional violation, it is for this reasonthat summary judgment will granted as to the police department.

B. The Eighth Amendment Claim

The Sixth Count alleges that plaintiff was subjected to crueland unusual punishment by defendants. Inasmuch as the EighthAmendment only applies to convicted persons, summary judgmentwill be granted as to the Sixth Count. See Ingraham v. Wright,430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).

C. Section 1983 Claims Against the Individual Police Defendants

Plaintiff alleges in the Seventh and Eighth Counts of hercomplaint that theindividual police defendants violated her fourteenth amendmentrights by failing to fulfill their affirmative duty to exerciseordinary care for her protection by keeping her safe and freefrom harm.

In order to state a claim pursuant to Section 1983, a plaintiffmust allege (1) that the challenged conduct was attributable atleast in part to a person acting under color of state law, and(2) that such conduct deprived the plaintiff of a right,privilege or immunity secured by the Constitution or laws of theUnited States. Dwares v. City of New York, 985 F.2d 94, 98 (2dCir. 1993).

Defendants argue that summary judgment against the plaintiff isappropriate because the plaintiff has failed to demonstrate aconstitutional deprivation.

State officials do not have a general constitutionalresponsibility to safeguard members of the general public againstprivate violence. DeShaney v. Winnebago County Dep't of SocialServices, 489 U.S. 189, 197-201, 109 S.Ct. 998, 103 L.Ed.2d 249(1989). However, in DeShaney, the Supreme Court distinguishedthis rule from instances where the state created the risk facedby the plaintiff.

Interpreting DeShaney, the Second Circuit established that aconstitutional violation occurs only where the state has createdor assisted in increasing the danger to the victim. Dwares, 985F.2d at 99. Courts have recognized Section 1983 liabilitypursuant to such state-created danger where state actors commitaffirmative acts using their authority to create an opportunityfor harm to the plaintiff that would not otherwise have existed.Kneipp v. Tedder, 95 F.3d 1199, 1208 (3rd Cir. 1996).

In contrast, nonfeasance does not give rise to a constitutionalviolation on which to predicate Section 1983 liability under thestate-created danger theory. Dwares, 985 F.2d at 99(allegations that police officer failed to act on reports of pastviolence do not implicate a constitutional violation); D.R. byL.R. v. Middle Bucks Area Vocational Tech. School,972 F.2d 1364, 1376 (3d Cir. 1992) (school's failure to report,investigate and stop physical and sexual abuse did not state aclaim for a constitutional violation).

In Dwares the complaint went well beyond allegations that thedefendant officers merely stood by and did nothing. It allegedthat the officers had conspired with "skinheads" to permit thebeating of flag burners. Thus, this was affirmative action, notinaction or nonfeasance.

The Court is not persuaded that the instant facts, even whenconstrued in the light most favorable to plaintiff, give rise toSection 1983 liability. Plaintiff has not shown that the policedepartment or individual officers thereof used their authority tocommit affirmative acts that rendered her vulnerable to a harmthat would not have otherwise occurred.

The Court will not predicate Section 1983 liability for allegedconstitutional violations based on the absence of state action toprevent any harm that occurred. Therefore, summary judgment willbe granted as to the Seventh and Eighth Counts.

D. Failure to Train and Supervise

In the Ninth Count, plaintiff alleges that the City had apolicy and custom of failing to train and supervise properly itspolice officers. Plaintiff claims that this failure resulted inthe City's and police department's decision not to take anyaction to save her from potential harm by Kotenski. Plaintiffasserts that the municipality's and police department's conductdemonstrates a deliberate indifference to her constitutionalrights to be protected from violent confrontations.

A municipality may be held liable pursuant to Section 1983where the plaintiff's harm was caused by a constitutionalviolation, and where the municipality is responsible for thatviolation. Collins v. City of Harker Heights, 503 U.S. 115, 112S.Ct. 1061, 117 L.Ed.2d 261 (1992). Failure to train and properlysupervise employees "in deliberate indifference" to the rights ofits inhabitants establishes a municipal custom or policyactionable under Section 1983. Canton v. Harris, 489 U.S. 378,389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). However, thedeficiency in training must be so obvious and so likely to resultin the violation of constitutional rights that the policy makerscan be said to have been deliberately indifferent to the need forproper training.

As the Supreme Court explained, deliberate indifference isdemonstrated when police violate constitutional rights so oftenin exercising their discretion that the need for further trainingmust have been plainly obvious to city policy makers. However,merely alleging that a municipality failed to train its employeesproperly is insufficient to establish a municipal custom orpolicy. Neighbour v. Covert, 68 F.3d 1508, 1512 (2d Cir. 1995),cert. denied, 516 U.S. 1174, 116 S.Ct. 1267, 134 L.Ed.2d 214(1996).

As noted above, there is no constitutional guarantee of minimallevels of safety and security except in narrow circumstances.DeShaney, 489 U.S. at 195, 109 S.Ct. 998. Thus, the City'sofficials cannot be said to have been deliberately indifferent toobvious training deficiencies that were likely to result in theviolation of constitutional rights. Therefore, plaintiff's claimsagainst the municipality for failure to train and properlysupervise its officers fails and summary judgment will be grantedon the Ninth Count.

E. Plaintiffs' State Law Claims

Plaintiffs' remaining five counts are based on state statutoryand common law. Having dismissed the only federal claims, theCourt will decline to exercise supplemental jurisdiction over theremaining state-law claims, pursuant to 28 U.S.C. § 1367(c)(3).

CONCLUSION

Inasmuch as plaintiff has failed to set forth genuine issues ofmaterial fact as to any essential element of her constitutionalclaims upon which she would bear the burden at trial, defendants'Motion for Summary Judgment [Doc. No. 26] is GRANTED. The Clerkis directed to enter judgment for the defendants City of Derby,Derby Police Department, Pasquale Guliano and Joseph Iacuone, Jr.

The state law claims are dismissed without prejudice to renewalin the correct jurisdiction.

The Clerk is directed to close this case.

SO ORDERED.

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