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October 23, 1984


The opinion of the court was delivered by: BLUMENFELD


BLUMENFELD, Senior District Judge

 The plaintiffs have brought this action pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988, as well as the fifth, ninth, and fourteenth amendments to the Constitution, alleging that their constitutional rights were violated by the nonperformance or malperformance of official duties by the defendant police officers. In addition, the plaintiffs seek to hold liable the defendant City of Torrington (hereinafter, the "City"). The defendant City has filed a motion to dismiss the plaintiffs' complaint, or various claims therein, pursuant to Rule 12(b) of the Federal Rules Civil Procedure.

 On a motion to dismiss, the sole issue is whether under the facts alleged in the plaintiff's complaint it appears to a certainty that the plaintiff is entitled to no relief. Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F. Supp. 125 (N.D. Ill. 1972). A complaint should not be dismissed unless it appears that the plaintiff could prove no set of facts in support of her claim which would entitle her to relief. U.S. Steel Corp. v. Multistate Tax Commission, 367 F. Supp. 107 (S.D.N.Y. 1973). Furthermore, it is well settled that for purposes of a motion to dismiss, the well pleaded material allegations of the complaint are taken as true. 2A Moore's Federal Practice 2267, P12.08 n.3. Accordingly, the material facts of this case are as follows:

 Between early October 1982 and June 10, 1983, the plaintiff, Tracey Thurman, a woman living in the City of Torrington, and others on her behalf, notified the defendant City through the defendant police officers of the City of repeated threats upon her life and the life of her child, the plaintiff Charles J. Thurman, Jr., made by her estranged husband, Charles Thurman. Attempts to file conplaints by plaintiff Tracey Thurman against her estranged husband in response to his threats of death and maiming were ignored or rejected by the named defendants and the defendant City.

 An abbreviated chronology of the plaintiff's attempted and actual notifications of the threats made against her and her son by her estranged husband to the defendant City and police officers is appropriate for consideration of this motion.

 In October 1982, Charles Thurman attacked plaintiff Tracey Thurman at the home of Judy Bentley and Richard St. Hilaire in the City of Torrington. Mr. St. Hilaire and Ms. Bentley made a formal complaint of the attack to one of the unnamed defendant police officers and requested efforts to keep the plaintiff's husband, Charles Thurman, off their property.

 On or about November 5, 1982, Charles Thurman returned to the St. Hilaire-Bentley residence and using physical force took the plaintiff Charles J. Thurman, Jr. from said residence. Plaintiff Tracey Thurman and Mr. St. Hilaire went to Torrington police headquarters to make a formal complaint. At that point, unnamed defendant police officers of the City of Torrington refused to accept a complaint from Mr. St. Hilaire even as to trespassing.

 On or about November 9, 1982, Charles Thurman screamed threats at Tracey while she was sitting in her car. Defendant police officer Neil Gemelli stood on the street watching Charles Thurman scream threats at Tracey until Charles Thurman broke the windshield of plaintiff Tracey Thurman's car while she was inside the vehicle. Charles Thurman was arrested after he broke the windshield, and on the next day, November 10, 1982, he was convicted of breach of peace. He received a suspended sentence of six months and a two-year "conditional discharge," during which he was ordered to stay completely away from the plaintiff Tracey Thurman and Bentley-St. Hilaire residence and to commit no further crimes. The court imposing probation informed the defendants of this sentence.

 On December 31, 1982, while plaintiff Tracey Thurman was at the Bentley-St. Hilaire residence, Charles Thurman returned to said residence and once again threatened her. She called the Torrington Police Department. One of the unnamed police officer defendants took the call, and, although informed of the violation of the conditional discharge, made no attempt to ascertain Charles Thurman's whereabouts or to arrest him.

 Between January 1, 1983 and May 4, 1983, numerous telephone complaints to the Torrington Police Department were taken by various unnamed police officers, in which repeated threats of violence to the plaintiffs by Charles Thurman were reported and his arrest on account of the threats and violation of the terms of his probation was requested.

 On May 4 and 5, 1983, the plaintiff Tracey Thurman and Ms. Bentley reported to the Torrington Police Department that Charles Thurman had said that he would shoot the plaintiffs. Defendant police officer Storrs took the written complaint of plaintiff Tracey Thurman who was seeking an arrest warrant for her husband because of his death threat and violation of his "conditional discharge." Defendant Storrs refused to take the complaint of Ms. Bentley. Plaintiff Tracey Thurman was told to return three weeks later on June 1, 1983 when defendant Storrs or some other person connected with the police department of the defendant City would seek a warrant for the arrest of her husband.

 On May 6, 1983, Tracey filed an application for a restraining order against Charles Thurman in the Litchfield Superior Court. That day, the court issued an ex parte restraining order forbidding Charles Thurman from assaulting, threatening, and harrassing Tracey Thurman. The defendant City was informed of this order.

 On May 27, 1983, Tracey Thurman requested police protection in order to get to the Torrington Police Department, and she requested a warrant for her husband's arrest upon her arrival at headquarters after being taken there by one of the unnamed defendant police officers. She was told that she would have to wait until after the Memorial Day holiday weekend and was advised to call on Tuesday, May 31, to pursue the warrant request.

 On May 31, 1983, Tracey Thurman appeared once again at the Torrington Police Department to pursue the warrant request.She was then advised by one of the unnamed defendant police officers that defendant Schapp was the only policeman who could help her and that he was on vacation. She was told that she would have to wait until he returned. That same day, Tracey's brother-in-law, Joseph Kocsis, called the Torrington Police Department to protest the lack of action taken on Tracey's complaint. Although Mr. Kocsis was advised that Charles Thurman would be arrested on June 8, 1983, no such arrest took place.

 On June 10, 1983, Charles Thurman appeared at the Bentley-St. Hilaire residence in the early afternoon and demanded to speak to Tracey. Tracey, remaining indoors, called the defendant police department asking that Charles be picked up for violation of his probation. After about 15 minutes, Tracey went outside to speak to her husband in an effort to persuade him not to take or hurt ...

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