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ESTATE OF TODD A. SMITH, et al. v. TOWN OF WEST HARTFORD, et al.
3:00cv2299(AHN)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
February 20, 2002, Decided
OPINION: [*147] RULING ON DEFENDANTS' MOTIONS
TO DISMISS
This action arises from the
tragic and untimely death of Todd A. Smith [*148]("Smith"), a West
Hartford police officer who committed suicide on December 3, 1998 with his
service revolver. The plaintiffs are Smith's Estate and Smith's wife, Jane
Crowley-Smith ("Crowley-Smith"), both in her personal capacity and on
behalf of Smith's surviving children, Jessica and Ryan Smith (the "minor
plaintiffs"). n1 The defendants are the Town of West Hartford ("the
Town") and several of its employees, namely - Chief of Police Strillacci
("Chief Strillacci"), Lieutenant Jack Casey ("Lieutenant
Casey"), Lieutenant Lori Coppinger ("Lieutenant Coppinger"),
Sergeant Christopher St. Jacques ("Sergeant St. Jacques") and Officer
Paula Senyk ("Officer Senyk") (collectively, "the individual
defendants.").
The
plaintiffs bring this action seeking money damages and other relief pursuant to
42 U.S.C. § 1983, claiming
that the Town and its employees failed to take appropriate action to prevent
Smith's death. This failure to properly intervene, the plaintiffs claim,
violated Smith's rights to substantive due process under the Fourteenth
Amendment and was in retaliation for Smith's participation in union activities
protected by the First Amendment. The plaintiffs also assert several
causes of action under state law, including: negligence; wrongful death; loss
of spousal consortium; loss of parental consortium; and intentional infliction
of emotional distress.
Currently pending are the Town's
Motion to Dismiss [doc. # 16] and the individual defendants' Motion to Dismiss
[doc. # 18]. For the following reasons, both motions are GRANTED. n2
BACKGROUND
The
following facts, taken from the plaintiffs' complaint, are assumed to be true
for the purposes of the defendants' motions to dismiss. See, e.g., Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.
1996).
On December 3, 1998, the
decedent, Smith, a police officer with the Town of West Hartford, committed
suicide by placing a service-issued firearm to his head and pulling the
trigger. Compl., P7.
The complaint alleges that, prior to
Smith's death, he was placed in the West Hartford Police Department's Employee
Assistance Program ("EAP") in order to address his declining mental
and emotional state. Compl. P8. The plaintiffs
allege that the EAP was defective because the defendants did not refer
Smith to a professional, but simply had him consult with his peers. Compl. P9.
The plaintiffs further allege that Officer Senyk, while acting as Smith's EAP
counselor, initiated an inappropriate sexual relationship with Smith [*149]
which led to marital problems for him. Compl. P37(a).
The plaintiffs claim that the
defendants knew or should have known that Smith was suffering from severe
depression for the following reasons:
(1)
During the six weeks prior to Smith's suicide, Smith had lost thirty-five
pounds;
(2)
During the six weeks prior to Smith's suicide, he repeatedly called in sick for
work, arrived late for work, or left work early;
(3) Prior to this period, Smith's attendance record was
impeccable;
(4)
Smith's erratic and emotional behavior at home led his wife to phone Lieutenant
Coppinger and state that Smith had told her that he was going to attach one end
of a vacuum cleaner hose to the tailpipe of his vehicle and stick the other end
of the vacuum hose inside the window of the vehicle and use it to asphyxiate
himself;
(5)
Coppinger failed to notify her superiors that Smith was contemplating suicide;
(6)
Lieutenant Casey and Sergeant St. Jacques had noticed a change in Smith's
behavior, spoke together about him, and spoke to Smith on several occasions
regarding his emotional state and whether he needed assistance;
(7)
The defendants' concerns were serious enough that they questioned Smith
directly whether he was contemplating suicide;
(8)
The defendants failed to refer Smith to a professional counselor although they
asked him whether he was suicidal; and
(9) The
defendants issued warnings to Smith regarding his performance.
Compl. PP12(a)-(I).
The
plaintiffs allege that Chief Strillacci, Lt. Coppinger, Lt. Casey and Sgt. St.
Jacques all had the authority, both inherently as administrators for the West
Hartford Police Department and as expressly authorized by the collective
bargaining agreement, to order Smith to see a counselor, remove his firearm,
assign him to desk duty, or take any other action necessary to ensure that
Smith would not be a danger to himself. Compl. P13.
The
plaintiffs allege that, despite Smith's protestations to the contrary, the
defendants knew that he suffered from serious emotional and mental problems,
that these problems had manifested themselves at least once in a physical heart
condition that required hospitalization, and that Smith claimed to be seeking
counseling outside the department. Compl. P18.
The
plaintiffs allege that the defendants were on notice of Smith's mental and
emotional state because his condition was of such severity that they expressly questioned Smith whether he was
contemplating suicide. Compl. P19. The plaintiffs maintain that Smith required
the services of a counselor, a reassignment of duties and/or removal of his
firearm in order to protect Smith from himself. Compl. P 20.
The
plaintiffs allege that the defendants' conduct caused Smith's emotional and
mental distress to continue unabated. Compl. P17. They allege that the
defendants knew, or should have known, of the severity of Smith's mental and
emotional state, and should have prevented Smith from performing duties that
required the use of his firearm and/or increased his stress. Compl. P25. The
plaintiffs maintain that the defendants' actions promoted an increasingly
difficult working environment for Smith and were willful, intentional and done
in spite of their actual knowledge [*150] or in reckless disregard of Smith's
rights. Compl. PP22, 26.
The
plaintiffs claim that, due to the defendants' conduct, Smith ultimately drove
himself to a secluded area of West Hartford and used his firearm to commit
suicide with a single gunshot wound to his head. Compl. P21.
The
plaintiffs assert seven causes of action. In the first count of the complaint,
the Estate alleges a § 1983 claim against the individual defendants claiming
that their actions violated two of Smith's constitutional rights. First, the
Estate alleges that the defendants' failure to properly intervene violated
Smith's substantive due process rights under the Fourteenth Amendment to the
Constitution. Compl. P14. Second, the Estate alleges a First Amendment
retaliation claim. Specifically, the Estate claims that, at the time of his
death, Smith was union president and had been active in union activities.
Compl. P10. The Estate maintains that the defendants' failure to follow proper
procedure in light of Smith's mental and emotional state was in retaliation for
his position as union president and for Smith's seeking redress through the
collective bargaining agreement on behalf of his fellow officers. Compl. P15.
The Estate maintains that the acts of the defendants constituted a denial of
Smith's First Amendment rights to free speech and association and to seek
redress from the government without retaliation. Compl. P 16.
In the
second count, the Estate advances a constitutional claim against West Hartford
alleging that the Town: (1) failed or refused to promulgate and enforce
appropriate guidelines, regulations, policies, practices or procedures
regarding personnel actions; (2) failed or refused to adequately supervise
Smith's supervisors in the performance of their duties and conduct towards
employees; and/or (3) failed or refused to take appropriate investigatory,
supervisory and/or disciplinary action against the police supervisors with
regard to the conduct alleged in the complaint. Compl. P30.
In
count three, the plaintiffs allege negligence against all the defendants. The
plaintiffs claim that the defendants breached a duty when they failed to refer
Smith to a professional counselor; failed to confiscate his firearm; failed to
assign him to desk duty; and failed to adequately address the suicide warning
that Crowley-Smith relayed. The plaintiffs also claim that the defendants were
negligent because Officer Senyk initiated an inappropriate relationship with
Smith while acting as his EAP counselor which, in turn, led to marital problems
for Smith and worsened his personal situation. Compl. P37. n3
In
the fourth count, the Estate advances a wrongful death claim against all the
defendants. The Estate claims that the defendants were careless or negligent
because they failed to address the suicide warning reported by Crowley-Smith;
failed to refer Smith to a professional counselor; failed to remove Smith's
firearm from his possession; and failed to assign him to desk duty. Compl. P41.
In
the final three counts of the complaint, the plaintiffs assert claims for loss
of consortium and intentional infliction of emotional distress. Specifically,
count five [*151] sets forth a claim for loss of spousal consortium by
Crowley-Smith; count six asserts a claim for loss of parental consortium by the
minor plaintiffs Jessica and Ryan Smith; and count seven advances a claim of
intentional infliction of emotional distress by Crowley-Smith. n4
STANDARD
A
motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6) should be granted only if "it is clear that no relief could be
granted under any set of facts that could be proved consistent with the
allegations." Hishon v. Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S.
Ct. 2229 (1984). The function of a motion to dismiss is "merely to assess
the legal feasibility of a complaint, not to assay the weight of evidence which
might be offered in support thereof." Ryder Energy Dist. Corp. v. Merrill
Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v.
Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)). The motion must therefore be
decided solely on the facts alleged. See
Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985).
When deciding a motion to dismiss for failure to state a claim on which
relief can be granted, the court must accept the material facts alleged in the
complaint as true, and all reasonable inferences are to be drawn and viewed
in a light most favorable to the
plaintiffs. See, e.g., Leeds, 85 F.3d
at 53; Staron v. McDonald's Corp., 51 F.3d 353, 355 (2d Cir. 1995); Skeete v.
IVF America, Inc., 972 F. Supp. 206, 207 (S.D.N.Y. 1997). The court "must
not dismiss the action 'unless it appears beyond doubt that the plaintiff[s]
can prove no set of facts in support of [the plaintiffs'] claim which would
entitle [the plaintiffs] to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172
(2d Cir. 1994). The issue is not whether the plaintiffs will prevail, but
whether they should have the opportunity to prove their claims. See Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed.
2d 80, 78 S. Ct. 99 (1957).
DISCUSSION
The
plaintiffs claim that the Town and its employees failed to take appropriate
action to prevent Smith's death. The plaintiffs maintain that the defendants'
failure to properly intervene violated Smith's rights to substantive due
process under the Fourteenth Amendment and was in retaliation for Smith's
participation in union activities protected by the First Amendment.
The
defendants argue that, in the absence of some custodial relationship, the due
process clause imposes no duty on the state to protect an individual against
himself. The defendants further argue that the plaintiffs have failed to allege
sufficient facts to state a First Amendment retaliation claim. n5
[*152] 1. Substantive Due Process
The defendants argue that they had no constitutional obligation under
the due process clause to prevent Smith's suicide. The court agrees.
The
complaint alleges that the defendants deprived Smith's right to substantive due
process when they failed to take sufficient remedial action to prevent his
suicide. Under the circumstances presented here, however, the Due Process
Clause mandates no such obligation.
In
DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 103
L. Ed. 2d 249, 109 S. Ct. 998 (1989), the Supreme Court held that the Due
Process Clause does not impose a duty on state officials to protect an
individual against a risk of violence unless there is a "special
relationship" between the state and the individual, such as the
relationship that occurs when a state takes a person into custody.
In DeShaney,
the petitioner sought damages from the Winnebago County Department of Social
Services for its alleged failure to intervene when confronted with evidence
that the petitioner's minor child was suffering repeated abuse by his father.
Notwithstanding overwhelming evidence that the child was repeatedly subjected
to severe abuse, the Court found that the Department had no constitutional
obligation to act to prevent the child from harm. The Court stated:
Nothing
in the language of the Due Process Clause itself requires the State to protect
the life, liberty and property of its citizens against invasion by private
actors. The Clause is phrased as a limitation on the State's power to act, not
as a guarantee of certain minimal levels of safety and security.
Id. at 195. The Court explained that
"the Due Process Clause of the Fourteenth Amendment was intended to
prevent government from abusing its power, or employing it as an instrument of
oppression . . . Its purpose was to protect the people from the State, not to
ensure that the State protected them from each other." Id. at 196. The
Court reasoned:
If the Due Process Clause does not require
the State to provide its citizens with particular protective services, it
follows that the State cannot be held liable under the Clause for injuries that
could have been averted had it chosen to provide them. As a general matter,
then, we conclude that a State's failure to protect an individual against
private violence simply does not constitute a violation of the Due Process
Clause.
Id. at 196-97.
Applying these principles here,
the plaintiffs have failed to state a cause of action for a due process
violation because the complaint fails to allege the type of special or
custodial relationship that DeShaney requires. The plaintiffs make no claim
that Smith was in custody. Rather, they expressly allege that Smith "drove
himself to a secluded area of West Hartford and used his firearm to commit
suicide with a single gunshot wound to his [*153] head." Compl. P21. The Due
Process Clause, however, provides no remedy to the plaintiffs under these
circumstances. As the Supreme Court explained in DeShaney:
The affirmative duty to protect arises not
from the State's knowledge of the individual's predicament or from its expressions
of intent to help him, but from limitation which it has imposed on his freedom
to act on his own behalf . . . in the
substantive due process analysis, it is the State's affirmative act of
restraining the individual's freedom to act on his own behalf - through
incarceration, institutionalization, or other similar restraint of personal
liberty - which is the deprivation of liberty, triggering the protections of
the Due Process Clause, not its failure to act to protect his liberty interest
against harms inflicted by other means.
Id. at 200. Simply put, in the absence of any
restraint on Smith's liberty, there was no constitutional obligation under the
Due Process Clause for the defendants to protect Smith from himself. See id.
The
plaintiffs' arguments to the contrary are not persuasive. The plaintiffs,
citing Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970
(1994) and Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662
(1986), argue that they have alleged sufficient facts to demonstrate a
substantive due process violation, claiming that the defendants exhibited
deliberate indifference by failing to prevent Smith's suicide. The plaintiffs'
reliance on Farmer and Daniels, however, is misplaced -- in both cases the
petitioners were prisoners in custody of the state. The plaintiffs here make no
claim that Smith was in custody or that he otherwise had a special relationship
with the State as required by DeShaney .
The
plaintiffs' interpretation of Collins v. City of Harker Heights, 503 U.S. 115,
117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992) is also incorrect. The plaintiffs
argue that Collins included the proposition that the assignment of an employee
to a dangerous working condition with malicious intent is sufficient by itself
to state a cause of action for a violation of substantive due process. Collins,
however, did not so hold.
In
Collins, the plaintiff's decedent died of asphyxia when he entered a manhole to
unstop a sewer line. The plaintiff sued the decedent's employer, the City of
Harker Heights, alleging that the city violated the decedent's due process
rights by failing to provide a safe work environment and by failing to train or
warn its employees about known work hazards. In rejecting that claim, the Court
held that the plaintiff's complaint had failed to allege a constitutional
violation because neither the text nor the history of the Due Process Clause
supported the petitioner's unprecedented claim that the Clause imposes an
independent duty upon municipalities to provide certain minimal levels of
safety and security in the workplace.
Id. at 126-30. The Court, citing DeShaney, reasoned that the Clause
guarantees due process in connection with a deprivation of liberty by the
State.
The
plaintiffs' reliance on the Court's reference in Collins to "potentially
meritorious claims" misses the mark. In that passage the Court was simply
rejecting the Court of Appeals' reading of § 1983 as requiring an abuse of
governmental power separate and apart from the proof of a constitutional
violation. In rejecting such a requirement, the Court stated:
a logical application of the holding might
also bar potentially meritorious claims by employees if, for example, the city
had given an employee a particularly dangerous assignment in retaliation for
[*154] a political speech . . . or because of his or her gender.
Id. at 120 (citations omitted). That passage
does not, as the plaintiffs claim, suggest that a claim of malicious
assignment, without more, states a
substantive due process violation. To the contrary, the Court was making
reference to a First Amendment retaliation claim or an Equal Protection claim,
and went on to reject the notion that a "governmental employer's duty to
provide its employees with a safe working environment is a substantive
component of the Due Process Clause." Id. at 126.
The
plaintiffs' efforts to distinguish DeShaney and its progeny are also
unavailing. The plaintiffs argue that DeShaney is distinguishable because DeShaney
was injured by a third party and the defendants' actions in that case were not
willful, deliberate or malicious. The Court in DeShaney however, held that the
"state's failure to protect an individual against private violence simply
does not constitute a violation of the Due Process Clause." 498 U.S. at
197 (emphasis added). Nowhere did the Court limit its holding to private
violence committed solely by third persons. Id.; see also Archie v. City of Racine, 847 F.2d 1211,
1221 (7th Cir. 1998) ("The rule that the government need not protect its
residents from private predators or their own misfortune is an implication of
the language and structure of the Due Process Clause.") (emphasis added).
The plaintiffs' argument that DeShaney did not impose liability because there
were no allegations or findings that the defendants' conduct was willful,
deliberate or malicious also rings hollow in light of the Court's express
reference to the fact that the defendants "stood by and did nothing when
suspicious circumstances dictated a more active role for them." Id. 489
U.S. at 203.
The
plaintiffs' effort to distinguish the analogous case of Hanrahan v. City of
Norwich, 959 F. Supp. 118 (D. Conn.), aff'd, 133 F.3d 907 (2d Cir. 1997) is
similarly unavailing. In that case, Hanrahan, a Norwich police officer,
committed suicide with his service revolver while being questioned about his
suspected involvement in a hit and run accident by Norwich Deputy Chief of
Police Robert Brautigam ("Brautigam") in Brautigam's office.
Hanrahan's father, acting as administrator of his son's estate, brought a civil
rights action under 42 U.S.C. § 1983, claiming that Brautigam violated the Due
Process Clause of the Fourteenth Amendment by questioning Hanrahan without
taking precautions to protect Hanrahan against a risk of self-inflicted harm.
The plaintiff also claimed that the Chief of Police and the City of Norwich
violated Hanrahan's due process rights by failing to adequately train Brautigam
and other officers in suicide prevention.
The court granted summary judgment, holding that "even assuming
suicide precautions should have been taken in this case as a matter of
prudence, plaintiff's § 1983 claims [did] not warrant a trial because he
alleged at most only negligence, which does not violate the Due Process
Clause." Id. at 120.
The
plaintiffs argue that Hanrahan is distinguishable because the defendants in
that case had no notice that the plaintiff was suicidal. See id. at 122 ("There is no evidence that
Hanrahan threatened to commit suicide or exhibited any signs or symptoms of
emotional disturbance that would put [the defendants] on notice of a risk
Hanrahan might try to take his own life."). This distinction, however,
does not change the fact that the "special relationship" required by
DeShaney is entirely absent here.
Although the court's holding in Hanrahan was based in part on the fact
that the defendants had no notice that the decedent [*155] was suicidal,
Hanrahan does not stand for the proposition that a custodial relationship
between the state and the individual is no longer required under those
circumstances. Indeed, the court expressly recognized that such a relationship
is necessary:
Whether the "special relationship"
required by DeShaney existed between Brautigam and Hanrahan appears to be a
question of first impression. When Brautigam undertook to question Hanrahan
about his suspected involvement in the hit and run accident . . . the
"process" guaranteed to Hanrahan by the Fourteenth Amendment might
have imposed an obligation on Brautigam to satisfy certain minimal standards
applicable to custodial interrogation. On the other hand, Brautigam had a right
to interview Hanrahan in connection with his employment as a police officer and
it is doubtful that a supervisor's interview of a subordinate constitutes a
"restraint on personal liberty" within the meaning of that phrase as
it was used by the Court in DeShaney.
Id. at 121-22. The court found it unnecessary
to decide the threshold question of a custodial relationship, however, because
the plaintiff, having alleged only negligence, had not otherwise set forth a
violation of the Due Process Clause:
In any event, there is no need to decide
whether Hanrahan had a "special relationship" with Brautigam within
the meaning of DeShaney because, even if Hanrahan was in custody during the
interview in Brautigam's office, Brautigam is entitled to summary judgment.
Id. at 122 (granting summary judgment because
"negligent inaction by a custodial official does not violate the Due
Process Clause."). Simply put, the court in Hanrahan assumed a custodial
relationship arguendo; it did not eliminate that threshold requirement.
Although the plaintiffs allege that the defendants had notice of Smith's
emotional state, they expressly allege that Smith "drove himself to a
secluded area of West Hartford and used his firearm to commit suicide with a
single gunshot wound to his head." Compl. P21. Under those circumstances -
namely, the absence of any custodial relationship - the plaintiffs have failed
to allege a due process violation.
Alternatively, the Town argues
that the individual defendants are entitled to qualified immunity because, even
if such a constitutional obligation exists, it was not a clearly established
right at the time of the decedent's death. The court agrees.
Even were the court to assume that the
defendants had a constitutional obligation to attempt to prevent Smith's
suicide, which it does not, that
obligation was not clearly established in December of 1998. There is no decisional law
from the U.S. Supreme Court or from this Circuit that would have put the
defendants on notice that their inaction under the circumstances presented here
was unlawful under the Constitution. Indeed, the weight of authority is to the
contrary. See, e.g., McClary v.
O'Hare, 786 F.2d 83 (2d Cir. 1986)(no due process requirement to provide a safe
workplace); Hanrahan v. City of Norwich, 959 F. Supp. 118 (D. Conn.), aff'd,
133 F.3d 907 (2d Cir. 1997) (no constitutional liability for City in failing to
train its officers in suicide prevention when one of its police officers shot
himself in supervisor's office); Mroz v. City of Tonawanda, 999 F. Supp. 436
(W.D.N.Y. 1998)(no constitutional violation for officer's failure to recognize the
decedent's threat of suicide when he was released from custody and returned
home without contacting his parents); Estate of Rosenbaum v. City of New York,
975 F. Supp. 206 (E.D.N.Y. 1997)(Mayor and Police Commissioner entitled to
qualified immunity for claim that they failed to provide adequate police
protection); [*156]Archie v. City of Racine, 847 F.2d 1211 (7th Cir.
1988)(no constitutional deprivation
when a 911 dispatcher failed to send an ambulance); Sumnar v. Bennett, 157 F.3d
1054 (6th Cir. 1998)(no constitutional deprivation when identity of police
informant was disclosed to his would-be murderer when he was told that his
identity would not be revealed); Rutherford v. City of Newport News, 919 F.
Supp. 885 (E.D. Va. 1996), aff'd, 107 F.3d 867 (4th Cir. 1997)(no
constitutional responsibility of supervisors to protect an undercover police
officer who was killed). Thus, even assuming the defendants had a
constitutional obligation to attempt to prevent Smith's suicide, such an
obligation was not clearly established at the time. Accordingly, for this
additional reason, the defendants' motions to dismiss the due process claim are
granted.
2.
First Amendment Claim
The
defendants argue that the complaint also fails to state a claim for retaliation
under the First Amendment. The court agrees.
To
survive a motion to dismiss, "a plaintiff asserting First Amendment
retaliation claims must advance
non-conclusory allegations establishing: (1) that the speech or conduct at
issue was protected, (2) that the defendant[s] took adverse action against the
plaintiff, and (3) that there was a causal connection between the protected
speech and the adverse action." Dawes v. Walker, 239 F.3d 489, 492 (2d
Cir. 2001); see also Posr v. Court
Officer Shield # 207, 180 F.3d 409, 418 (2d Cir. 1999); Rivera v. Comty. Sch.
Dist. Nine, 145 F. Supp. 2d 302, 309 (S.D.N.Y. 2001); Velasquez v. Goldwater
Mem'l Hosp., 88 F. Supp. 2d 257, 264 (S.D.N.Y. 2000). The causal connection
must be sufficient to warrant an inference that the protected speech was a
substantial motivating factor in the adverse action. See Blum v. Schlegel, 18 F.3d 1005, 1010 (2d
Cir. 1994); see also Dawes, 239 F.3d
at 492; Velasquez, 88 F. Supp. 2d at 265; Rivera, 145 F. Supp. 2d at 309. At
this state of the proceedings, a "reasonable inference" is all that
is required. Posr, 180 F.3d at 418.
However, "a complaint which alleges retaliation in wholly conclusory terms
may safely be dismissed." Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.
1983); see also Graham v. Henderson,
89 F.3d 75, 79 (2d Cir. 1996) ("A complaint of retaliation that is wholly
conclusory can be dismissed on the pleadings alone."); Gagliardi v.
Village of Pawning, 18 F.3d 188, 195 (2d Cir. 1994) ("bald and
uncorroborated allegation[s] of retaliation might prove inadequate to withstand
a motion to dismiss.").
The
plaintiffs here have failed to plead the requisite nexus between the exercise
of Smith's First Amendment rights and subsequent retaliatory conduct by the
defendants. The complaint merely alleges that Smith was the union president,
was active in union activities and that the defendants' failure to take
appropriate action was in retaliation for his position as union president and
for seeking redress through the collective bargaining agreement on behalf of
his fellow officers. Compl. PP 10, 15. n6 This is insufficient. The plaintiffs [*157]have not --
and, at oral argument, could not -- allege any connection between Smith's union
activities and the defendants' alleged failure to take appropriate action to
prevent his suicide. The complaint, for example, sets forth no allegations with
respect to Smith's union activity, when he engaged in that activity or how the
defendants retaliated against him in response to that activity, except to
state, in a conclusory fashion, that the "acts of the
defendants" amounted to a denial of Smith's right to free speech and
association and to seek redress from the government without retaliation.
Accordingly, the plaintiffs have not plead a causal connection sufficient to
warrant a reasonable inference that Smith's union activities were a substantial motivating factor in the
defendants' alleged failure to prevent his suicide. n7
Because the plaintiffs are unable to plead a causal connection sufficient
to warrant a reasonable inference that Smith's union activities were a
substantial motivating factor in the defendants' alleged failure to prevent his
suicide, the defendants' motions to dismiss
the plaintiffs' First Amendment retaliation claim are also granted.
CONCLUSION
The allegations set forth in the
plaintiffs' complaint, while undeniably tragic, simply do not state a
constitutional violation. For the reasons stated above, the Town's
Motion to Dismiss [doc. # 16] and the individual defendants' Motion to Dismiss
[doc. # 18] are GRANTED and the federal constitutional claims under § 1983 are
dismissed. The court, however, declines to exercise supplemental jurisdiction over the state law claims and,
accordingly, those claims are dismissed without prejudice to their pursuit in
state court. See, e.g., Hanrahan, 959
F. Supp. at 120 n.2. The clerk is instructed to close the file.
SO
ORDERED this 20th day of February, 2002, at Bridgeport, Connecticut.
Alan H. Nevas
United States District Judge
FOOTNOTES:
n1 Although not identified in the caption, the decedent himself
is referenced as a plaintiff throughout the Complaint. Upon death, however, the
decedent is no longer a "person" under the Constitution or 42 U.S.C.
§ 1983. See, e.g., Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir. 1979). The
decedent's claim can nevertheless survive him if state law creates a right of
survival. Barrett v. United States, 689
F.2d 324, 331 (2d Cir. 1982). Connecticut law requires the executor or
administrator to bring a claim arising from an individual's death. See Conn.
Gen. Stat. § 52-555 (1991); see also Conn. Gen. Stat. § 52-599 (1987). Thus,
the appropriate party to assert any claim arising from the alleged deprivation
of the decedent's constitutional rights is the administrator or executor of his
estate. The decedent, however, is not a person under § 1983 or state law and
cannot be considered a plaintiff.
n2 Specifically, the federal
constitutional claims under § 1983 are dismissed. The court, however, declines
to exercise supplemental jurisdiction over the state law claims and,
accordingly, those claims are dismissed without prejudice to their pursuit in
state court. See, e.g., Hanrahan v.
City of Norwich, 959 F. Supp. 118, 120 n.2 (D. Conn. 1997).
n3 At oral argument, counsel
for the plaintiffs maintained that the third count of the complaint is intended
to be a cause of action for the failure of the defendants to provide a safe
working environment. See also Pl.'s Opp. to Defs.' Mot. to Dismiss at 13-14.
The plaintiffs claim that this cause of action is brought pursuant to Conn.
Gen. Stat. § 31-49 and certain principles set forth in Parsons v. United
Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997). Because the court
declines to exercise supplemental jurisdiction, it does not address the
question whether § 31-49 provides an independent cause of action.
n4 In their memorandum in
opposition, the plaintiffs withdrew the sixth count of the complaint alleging
loss of parental consortium by the minor plaintiffs. See Pl.'s Opp. to Defs.'
Mot. to Dismiss at 16. The withdrawal of this count was confirmed at oral
argument.
n5 A constitutional
violation by the individual defendants is required in order to sustain a claim
against the municipality. See, e.g.,
Los Angeles v. Heller, 475 U.S. 796, 799, 89 L. Ed. 2d 806, 106 S. Ct.
1571 (1986); Dodd v. Norwich, 827 F.2d 1, 8 (2d Cir. 1987); see also Roe v. Humke, 128 F.3d 1213, 1216 (8th Cir.
1997)(in the absence of a constitutional violation of the individual police
officer, no liability could be attributed to the police chief); Evans v. Avery,
100 F.3d 1033, 1040 (1st Cir. 1996), cert. denied, 520 U.S. 1210, 117 S. Ct.
1693, 137 L. Ed. 2d 820 (1997)(no municipal liability where there was no underlying
constitutional violation in a police pursuit case); Hinkle v. City of
Clarksburg, 81 F.3d 416, 420 (4th Cir. 1996)(no liability as to officer
involved in shooting made it unnecessary to decide claims against the City and
supervisor); Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir.), cert.
denied, 519 U.S. 867, 117 S. Ct. 179, 136 L. Ed. 2d 119 (1996) (Given no
constitutional violation by officer for unlawful arrest, there could be no
liability for City's failure to train him); Martinez v. Colon, 54 F.3d 980, 990
(1st Cir. 1995)(No supervisory liability claim where the individual officers
had no constitutional obligation to prevent private violence under the
substantive due process clause). Because the threshold inquiry for determining
liability with respect to the Town also turns on whether the plaintiffs have
stated a viable claim against the individual officers, and for ease of
reference, the court addresses the plaintiffs' substantive due process and
First Amendment retaliation claims with respect to all defendants collectively.
n6 Specifically, with
respect to the plaintiffs' First Amendment retaliation claim, the complaint
alleges:
10. At the time of his
death, plaintiff Smith was the union President and had been active in union
activities.
15. The failure to follow
proper procedure in light of plaintiff Smith's obvious mental and emotional
state was in retaliation for his position as union president and for seeking redress
through the collective bargaining agreement on behalf of his fellow officers.
16. The acts of the
defendants, under color of law, by virtue of their authority as Police
supervisors and public servants of the Town of West Hartford, herein alleged constitute
a denial to plaintiff Smith of his rights to free speech and association and to
seek redress from the government without retaliation as guaranteed to him by
the First Amendment to the United States Constitution.
Compl. PP 10, 15-16.
n7 To hold otherwise would
also seem to subvert the holding in DeShaney. The adverse action the plaintiffs
challenge is the defendants' failure to prevent Smith from the private violence
he inflicted upon himself. The Supreme Court has definitively held that where,
as here, the individual was not in custody, there is no constitutional
obligation under the Due Process Clause for the state to act to protect an
individual against private violence. To accept the plaintiffs' theory for their
retaliation claim would be tantamount to holding that the First Amendment
creates a constitutional obligation for the State to act in circumstances where
the Supreme Court has definitively concluded that the Due Process Clause
imposes no such duty. Such a holding would appear to permit an inappropriate
end-run around DeShaney and its progeny.
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