Opinion
No. FSTCV10-6004811S
May 31, 2011
Memorandum of Decision on Defendant's Motion to Strike Revised Complaint (No. 112)
Procedural/Factual Background
The plaintiff, Rohan Crosdale, has brought claims for violation of his civil rights under 42 USC § 1983, false imprisonment, battery, and violations of Conn. Gen. Stat. § 52-571a (deprivation of equal rights and privileges) and § 52-571c (intimidation based on bigotry or bias) against Officer Brian Perusse and Lieutenant James Heavy of the Greenwich Police Department and against the Town of Greenwich. Plaintiff's claims result from an alleged incident of racial profiling when he was stopped and detained at a traffic stop by Officer Perusse on December 12, 2008. The defendants have moved to strike Counts One through Fourteen of the Revised Complaint on the ground that it "is almost devoid of any factual statements to support the essential elements of his charges of Defendant Wrongdoing," and that plaintiff "relies upon broad-brush statements of his personal legal conclusions and opinions to underpin his claims." (Def. Memorandum of Law, p. 3.)
The revised complaint alleges that the plaintiff, a 22-year-old African-American self-employed livery driver, operating alone with the authority and permission of his clients their 2008 Mercedes automobile, was stopped shortly after 8:45 P.M. on December 12, 2008 by defendant Perusse on Lake Avenue in Greenwich shortly after dropping off his clients for dinner at the home of their friends. Plaintiff alleges that he was not disobeying any motor vehicle laws at the time he was stopped, and that he had consumed no alcohol or drugs that would affect his ability to drive on that date. Plaintiff alleges that defendant Perusse ordered plaintiff from the vehicle and made him undergo a roadside sobriety test, and, along with unnamed fellow officers, searched the Mercedes in its entirety at the scene of the stop. Plaintiff claims that defendant Perusse refused to contact the owners of the vehicle, who could have confirmed plaintiff's sobriety, who were only about one-half mile away. Plaintiff was arrested and handcuffed at the scene, and his clients' vehicle was impounded. He alleges that he was taken to the Greenwich Police Department headquarters and handcuffed to a radiator in front of an open window for approximately four hours. At about 10:00 P.M. defendant Perusse allegedly administered a breathalyser test which resulted in a blood alcohol content of zero. Plaintiff further alleges that although defendant Perusse and his shift supervisor defendant Heavey did contact plaintiff's clients from police headquarters who confirmed that plaintiff was their driver and was not intoxicated, defendant Perusse continued to detain the plaintiff and required him to submit a urine sample for alcohol content analysis, knowing that the urinalysis results would not be available immediately. Plaintiff was then charged with operating a motor vehicle under the influence [of alcohol or drugs] and released after posting a $100 bond. He alleges that his driving privileges in Connecticut were revoked and he had to be driven home by his client. After plaintiff retained counsel and appeared in the Superior Court, Gcographic Area No. 1, at Stamford, the charge of driving under the influence was dismissed by the court on January 30, 2009. Plaintiff's legal claims are that there was no basis for the traffic stop; that there was no legal basis for administering the roadside sobriety test; that defendant Perusse lacked reasonable and articulable suspicion that plaintiff was intoxicated at the scene, that the vehicle was searched illegally; that he was arrested without legal basis; that he was charged with driving under the influence "although all the evidence indicated that [he] was innocent"; and that his Connecticut driving privileges were improperly revoked. Plaintiff further alleges that defendant Perusse arrested him without probable cause and that his (plaintiff's) race and national origin were a factor in his improper treatment.
Standard of Decision
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "[I]n determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53 (2010). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 130 (2010). In determining the sufficiency of a complaint challenged by a defendant's motion to strike, the court must construe the complaint in the manner most favorable to sustaining its legal sufficiency, and all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically. Violano v. Fernandez, 280 Conn. 301, 317-18 (2006); Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292-93 (2004). "A motion to strike admits all facts well-pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleading." Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985).
Discussion Counts One and Two
Connecticut is a fact-pleading jurisdiction. "Each pleading shall contain a plain and concise statement of the material facts upon which the pleader relies, but not the evidence by which they are to be proved . . ." Practice Book § 10-1. "Acts and contracts may be stated according to their legal effect, but in so doing, the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove." Id., § 10-2.
Defendants focus on paragraphs 15 and 16 of the Revised Complaint as "the crux of Plaintiff's allegations that Defendants were guilty of false arrest and false imprisonment . . ." (Def. Memo., p. 4.) Para. 15 alleges that "Mr. Crosdale was not violating any vehicle and traffic laws at the time that he was stopped by Officer Perusse." Para. 16 alleges that "officer Perusse had no basis for stopping Mr. Crosdale." Defendants argue: "These are the only statements in the Revised Complaint that allege an illegal stop, the act of alleged wrongdoing from which all the misconduct flows," and that these are "legal opinions disguised as statements of fact" which lack "the factual underpinning necessary to stand as the foundation for false arrest or false imprisonment claims." (Def. Memo., p. 4.) Plaintiff claims, on the other hand, that: "These are not conclusions of law at all. Probable cause, various motor vehicle and traffic laws, and police officer's legal basis to stop individuals are legal terms that will need to be defined. But the statements themselves which allege or deny certain violations of legal concepts, are allegations of facts that need to be subsequently proven at trial." (Pl. Memo., p. 3.)
Alleging a negative (the absence of probable cause or the absence of a legal basis for an officer's traffic stop) is not as straightforward as alleging a positive (the actual existence of a fact). Negatives by their very nature, being a nothing, or the absence of something, must always be presented by implication — by pleading certain facts from which a reasonable implication can be drawn that something else is not present or does not exist. Negative pleading is very common in negligence cases. It is routinely alleged that a defendant driver "failed to apply his brakes," or "failed to swerve to the left or right to avoid a collision," or "failed to drive in the proper lane." But these are very specific and are the absence or the opposite of compliance with very specific rules of the motor vehicle statutes. A lack of probable cause to make an arrest or lack of articulable suspicion to make a stop, is actually a failure of the officer to have a certain level of knowledge or belief of facts which would under our constitution justify the intrusion of a stop or the deprivation of liberty of an arrest. To a certain extent, such an allegation must be the conclusory result of the attendant circumstances. To allege those circumstances without alleging the result flowing therefrom might itself be a defective pleading of the lack of required knowledge or belief.
"The term probable cause is a [bona fide]belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. [Wall] v. [Toomey], 52 Conn. 35, 36." Ellis v. Ambulance Service of Manchester, Superior Court, Judicial District of Tolland at Rockville, Docket No. CV93-52057S (April 28, 1994, Hammer, J.) ( 1994 Ct.Sup. 4580). In Ellis, which was an action for vexatious suit, the court held that "[a]n allegation that the party who initiated the proceeding which is claimed to have been vexatious, `never had an honest and sincere belief in the validity of his complaint' states a factual basis for a claim of lack of probable cause which is sufficient to withstand a demurrer . . . Such an allegation creates a factual issue for the trier as to whether the action was brought without probable cause." (Citation and internal quotation marks omitted.) Id. (The quoted allegation had been challenged as "conclusory" and because it failed to state any facts.) The allegations of plaintiff Crosdale that "Officer Perusse had no basis for stopping Mr. Crosdale" (¶ 16) and that "Officer Perusse lacked reasonable and articulable suspicion to believe that Mr. Crosdale was intoxicated" (¶ 19) and that plaintiff was arrested "without probable cause" (¶ 35) are sufficiently similar to the allegations approved and considered as factual allegations by Judge Hammer in Ellis that they will not be disregarded as mere conclusions, but will be considered with all the other allegations of the Revised Complaint to determine whether or not the causes of action therein are sufficiently stated.
In addition to the allegations of ¶¶ 16, 19, and 35 quoted above, the allegations, and inferences therefrom, on the issue of lack of probable cause or lack of articulable suspicion that plaintiff Crosdale was violating Connecticut law are that:
He was not operating a stolen car. (Inferred from the allegation that the Mercedes was owned by and registered to plaintiff's clients who authorized his operation.) (Rev. Compl. ¶ 12.)
He had not at any time during any portion of that day consumed any alcohol or drugs that affect his ability to drive. (¶ 13.)
He gave the officers a true statement of his employment by his clients and their nearby presence and willingness to corroborate his sobriety, which the defendant declined to pursue before depriving the plaintiff of his liberty. (¶ 23.)
Plaintiff was not violating any vehicle and traffic laws at the time he was stopped by Officer Perusse. (¶ 15.) (It can reasonably be inferred that a professional driver (¶ 3) would be familiar with the vehicle and traffic laws. There is also an allegation that the Mercedes had just been serviced at Manhattan Mercedes Benz (¶ 10), which, construed most favorably to the plaintiff, would support an inference that the vehicle itself was not in violation of any laws.)
The vehicle was thoroughly searched at the scene (¶ 20) and no charges of possession of any weapons or contraband have been proffered at any time.
The court finds that the plaintiff has adequately pleaded that Officer Perusse was without probable cause or lacked a reasonable and articulable suspicion for the traffic stop. The motion to strike Counts One and Two ( 42 U.S.C. § 1983 by false arrest. False imprisonment by defendant Perusse) must be denied. In alleging this cause of action the plaintiff must show more than just "a sheer possibility that defendant has acted unlawfully . . . When a [§ 1983] complaint's well-pleaded facts do not enable a court, drawing on its judicial experience and common sense, to infer more than the mere possibility of misconduct, the complaint has not shown that the pleader is entitled to relief." Creecy v. District of Columbia, Civil Action No. 10-841 (CKK) (U.S.D.C., District of Columbia, March 31, 2011, Kollar-Kotelly, J.), p. 7. Plaintiff Crosdale's complaint meets and passes this burden.
Counts Three and Four
Counts Three and Four allege violation by defendant Perusse of plaintiff's rights under § 42 U.S.C. § 1983 by Denial of Equal Protection of the Laws. This requires proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective 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. Schnabel v. Tyler, 230 Conn. 735, 762 (1994), citing multiple federal authorities, including FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2nd Cir. 1992). Plaintiff has alleged that he is black and of Jamaican descent (¶ 2) and that his race and national origin were a factor in his improper treatment by Officer Perusse (¶ 44). Both are factual allegations which must be assumed to be true for purposes of this motion. This coupled with the lack of probable cause or reasonable articulable suspicion for his stop, as previously discussed, is sufficient. Horton v. Town of Brookfield, 2001 W.L. 263299 (D.Conn. Hall, J. March 15, 2001), cited by defendants does not compel a contrary ruling. Horton was decided on a motion for summary judgment, based on an analysis of evidence and whether or not there was a triable issue of fact. It is not a pleading sufficiency case.
Count Five
Count Five claims common-law false imprisonment against defendant Perusse. Defendant has failed to brief any pleading deficiency on Count Five other than to refer to Count One. Plaintiff has alleged that he was forcibly handcuffed at the scene of the traffic stop (¶ 22) and that he was handcuffed to a radiator at the Greenwich Police headquarters for approximately four hours (¶ 23) without legal basis. These allegations considered in the context of the court's discussion under Counts One and Two, supra, is sufficient basis to deny the motion to strike Count Five.
Count Six
Count Six alleges claims under Conn. Gen. Stat §§ 52-571c and 53a-181k. Section 53a-181k makes it a Class D felony for anyone to cause or threaten physical damage to person or property with a specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation, or gender identity or expression. Section 52-571c establishes a civil cause of action for any victim of § 53a-181k incident. Defendant argues that plaintiff has failed to plead facts sufficient to show specific intent to intimidate or harass the plaintiff because of his race. Plaintiff has alleged that he is black, and that his race and national origin were a factor in his improper treatment by Officer Perusse. He has also alleged Officer Perusse acted with malice (¶ 51) and "with specific intent to intimidate or harass Crosdale because of his race and/or ethnicity." (¶ 52.) These allegations coupled with the factual allegations itemized above in connection with the court's discussion of Counts One and Two, are sufficient to state this cause of action in Count Six.
Count Seven
Count Seven alleges a battery claim against defendant Perusse. Defendant claims there is insufficient allegation of harmful or offensive contact that offends a reasonable sense of personal dignity. Plaintiff alleges "Officer Perusse subjected Rohan Crosdale to contact without his consent, and without privilege to do so" (¶ 55) which standing alone might be insufficient; but Count Seven also incorporates the allegation that he was "forcibly handcuffed" at the scene of the traffic stop (¶ 22); and that, "[a]fter his arrest, Mr. Crosdale was taken to the Greenwich Police Department Headquarters and was handcuffed to a radiator in front of an open window for approximately four hours" (¶ 23). There is a reasonable inference that Officer Perusse is the person who did the handcuffing in each instance, since he is the only officer named at the scene, and he is the person who allegedly "continued to detain Mr. Crosdale" at police headquarters. (¶ 26.) These allegations, coupled with the allegations of lack of probable cause and lack of any evidence of guilt, are sufficient to state the element of unlawful contact that offends a reasonable sense of personal dignity.
Count Eight
Count Eight seeks relief from Officer Perusse under Conn. Gen. Stat. § 52-571a for violation of plaintiff's rights to equal protection of the laws of Connecticut or of the United States in violation of Conn. Gen. Stat. § 53-37b. It incorporates and relies on the allegations of Counts One through Four. The court has held Counts Three and Four to be sufficient to plead violations of the plaintiff's constitutional rights to equal protection of the laws. The same ruling applies to Count Eight.
Counts Nine Through Fourteen CT Page 12583
Counts Nine through Fourteen allege direct and/or supervisory liability of defendant Lieutenant James Heavey for the causes of action pleaded in Counts One through Five and Count Eight against the defendant Officer Brian Perusse. Defendants claim lack of sufficient pleaded facts "that would bring Lt. Heavey into the penumbra of the plaintiff's claims." (Def Mem., p. 16.) The complaint alleges that "[a]t all times mentioned herein Lt. James Heavey was Officer Perusse's shift commander, and was responsible supervising officer Perusse and approving any arrests he made that night" (¶ 7); and "Lt. Heavey was also responsible to make sure that Officer Perusse followed the policies of the Town of Greenwich, and the laws of the State of Connecticut, and the United States of America, and that he administered those laws in a non-discriminatory manner." (¶ 8.) It is alleged in Paragraph 25 of the revised Complaint that "while Mr. Crosdale was detained at the Greenwich Police Department, Officer Perusse and his supervisor, lieutenant Heavey, contacted [plaintiff's employers] and confirmed that Mr. Crosdale was their driver and was not intoxicated." Count Nine alleges that Lt Heavey violated the plaintiff's rights by arresting him without probable cause (¶ 60); by unlawfully detaining him without his consent for approximately four hours (¶ 61); by unlawfully impounding the vehicle plaintiff was operating (¶ 62); and by unlawfully abrogating his privileges to drive in the state of Connecticut (¶ 63). Counts Ten through Fourteen make similar allegations of direct unlawful conduct of Lt. Heavey and/or actions "alone and/or in conspiracy with others" in depriving plaintiff of his lawful rights. Although there is no allegation that Lt. Heavey was at the scene of the traffic stop on Lake avenue, or in contact with Officer Perusse while he was at the scene, Counts Nine Through Fourteen all allege actions that occurred at least in part after the plaintiff was brought in handcuffs to police headquarters, where Lt. Heavey was present and on duty as shift commander. It is reasonable to infer that the plaintiff was not formally charged with any crime until he had been detained for some time at the police headquarters. (¶¶ 24-29.)
A supervisor may be liable if the plaintiff can affirmatively connect the supervisor's conduct to the subordinate's violative act or omission. Camilo-Robles v. Hoyos, 151 F.3d. 1, 7 (1 Cir. 1998). Supervisory personnel may be considered personally involved if they (1) directly participated in the violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Excell v. Woods, 07 CV-0305, 2009 WL 3124424 at *20, (N.D.N.Y., Sept 29, 2009); Felix-Tortes v. Graham, 687 F.Sup.2d 38, 54-55 (N.D.N.Y. 2009). A supervisor may be liable if, in supervising his subordinate, he exhibited gross negligence or deliberate indifference to a high risk of the occurrence of constitutional violations. Poe v. Leonard, 282 F.3d 123, 134 (2nd Cir. 2002). A defendant is grossly negligent when he has reason to know of facts creating a high degree of risk of constitutional violation to another and deliberately fails to act in conscious disregard or indifference to that risk Id., 140, n. 14, citing RESTATEMENT (SECOND) OF TORTS § 500, cmt. A (1965). Deliberate indifference is established by showing that the need for more or better supervision against constitutional violations was obvious but the defendant made no meaningful attempt to forestall or prevent the unconstitutional conduct. Amnesty Amer. v. Town of West Hartford, 361 F.3d. 113, 127 (2 Cir. 2004).
The court finds that the allegations, against Lt. Heavey, which must be accepted as true and construed favorably to the plaintiff and to sustaining the legal sufficiency of the claim, sufficiently state under the foregoing principles direct or supervisory liability of the defendant Lt. Heavey for the causes of action pleaded in Counts One, Two, Three, Four, Five and Eight.
Order
For all these reasons the defendants' motion to strike the Revised Complaint is denied.