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Tyus v. Newton

United States District Court, D. Connecticut

October 18, 2016

GERJUAN TYUS, Plaintiff,
v.
ROGER NEWTON, et al., Defendants.

          RULING ON MOTIONS FOR SUMMARY JUDGMENT

          Stefan R. Underhill United States District Judge.

         The plaintiff, GerJuan Tyus, is currently incarcerated at Garner Correctional Institution in Newtown, Connecticut. In October 2013, Tyus filed the present case in this court against defendants the City of New London; the County of New London; the City of New London Police Department; Chief Margaret Ackley, Lieutenants Brian Wright and Todd Bergeson, Sergeants Kristy Christina and Kevin McBride, and Officers Todd Lynch, Jeremy Zelinski, Timothy Henderson, Mikhail Liachenko, Trisha Marcaccio, Joseph Pelchat, Melissa Schafranski, Darrin O'Mara, Kyle Lamontagne, and Roger Newton of the City of New London Police Department; and Special Agents Kurt Wheeler, Scott Riordan, Robert Harrison, Dennis Turman, and Guy Thomas of the federal Bureau of Alcohol, Tobacco and Firearms (ATF). Around the same time, Tyus filed a complaint arising out of the same conduct in Connecticut Superior Court, which the defendants removed to this court on November 19, 2013. See Tyus v. City of New London, No. 3:13-cv-01726, Pet. Removal, Doc. No. 1.

         On January 6, 2014, I granted a motion to consolidate the instant case with the action that had been removed by the defendants. See Tyus v. City of New London, No. 3:13-cv-01486, Notice of Consolidation, Doc. No. 14. The instant case is the lead case. The member case-the former state court case-has been closed. See Tyus v. City of New London, No. 3:13-cv-01726.

         On April 29, 2014, I issued an order addressing Tyus's motion for leave to amend, Doc. No. 29, and a motion to dismiss filed by defendants the City of New London; the City of New London Police Department; and Chief Ackley, Lieutenants Wright and Bergeson, Sergeants Christina and McBride, and Officers Lynch, Zelinski, Henderson, Liachenko, Marcaccio, Pelchat, Schafranski, O'Mara, and Lamontagne of the City of New London Police Department, Doc. No. 15.[1] In the order, I granted Tyus leave to file an amended complaint, [2] denied the motion to dismiss without prejudice, and dismissed pursuant to 28 U.S.C. § 1915A(b)(1) all claims in Count I of the Amended Complaint, as well as the Sixth Amendment claims and all conspiracy claims in Count V of the Amended Complaint. Order, Doc. No. 35.

         In June 2014, all the City of New London defendants (except Officer Newton) moved to dismiss claims set forth in the amended complaint. Mot. Dismiss, Doc. No. 39. On March 31, 2015, I granted the motion in part and denied it in part. I dismissed (i) all claims against Officers Zelinski and Liachenko; (ii) all federal claims against Chief Ackley in her individual and official capacities; (iii) the claim that Officers Newton, Lynch, Pelchat, and Marcaccio falsely arrested Tyus on March 3, 2011; (iv) the claims under article I, sections 7 and 9 of the Connecticut Constitution against Chief Ackley and the City of New London; (v) the state law claims of negligence and intentional and negligent infliction of emotional distress against all defendants; and (vi) the claims under article I, section 10 of the Connecticut Constitution against all defendants. I denied the motion to dismiss in all other respects. Order, Doc. No. 84.

         On September 10, 2015, I issued an order addressing a motion to dismiss filed by ATF Agents Wheeler, Riordan, Harrison, Turman, and Thomas (the federal defendants). See Mot. Dismiss, Doc. No. 67. I dismissed all claims against those defendants pursuant to (a) 28 U.S.C. § 1915(e)(2)(B)(ii) (for all claims against Agent Harrison and the equal protection claim against Agents Riordan, Wheeler, Turman, and Thomas); (b) Federal Rule of Civil Procedure 12(b)(1) (for all federal claims for monetary damages and declaratory and injunctive relief against Agents Wheeler, Riordan, Turman, and Thomas in their official capacities, as well as for all state law claims); and (c) Federal Rule of Civil Procedure 12(b)(6) (for the Fourteenth Amendment due process claims and the Fourth Amendment false arrest and malicious prosecution claims against Agents Riordan, Wheeler, Turman, and Thomas, as well as for the claims that Agents Riordan and Wheeler transported Tyus to federal court). Order, Doc. No. 92. Because all claims against the federal defendants had been dismissed, I terminated those defendants from the case. See id.

         The case proceeds against the remaining defendants on (1) the Fourth Amendment search and seizure and excessive force claims; (2) the Fifth and Fourteenth Amendment due process claims; (3) the Fourteenth Amendment equal protection claim and the state law claims of assault and battery against Lieutenants Wright and Bergeson, Sergeants Christina and McBride, and Officers Lynch, Henderson, Marcaccio, Pelchat, Schafranski, O'Mara, Lamontagne, and Newton in their individual and official capacities; (4) the claims under article I, sections 7 and 9 of the Connecticut Constitution against Lieutenants Wright and Bergeson, Sergeants Christina and McBride, and Officers Lynch, Henderson, Marcaccio, Pelchat, Schafranski, O'Mara, Lamontagne, and Newton in their individual capacities; and (5) the Fourth and Fourteenth Amendment claims against the City of New London.

         Lieutenants Wright and Bergeson, Sergeants Christina and McBride, Officers Lynch, Henderson, Marcaccio, Pelchat, Schafranski, O'Mara, and Lamontagne, and the City of New London (collectively, the New London defendants) have filed a motion for summary judgment. Doc. No. 97. Officer Newton has filed a separate motion for summary judgment. Doc. No. 96. For the reasons set forth below, I deny the motions in part and grant them in part.

         I. Standard of Review

         Summary judgment is appropriate when the record demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986) (plaintiff must present affirmative evidence in order to defeat properly supported motion for summary judgment). When ruling on a summary judgment motion, the court must construe the facts in the light most favorable to the nonmoving party, and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (court is required to “resolve all ambiguities and draw all inferences in favor of the nonmoving party”). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon mere allegations or denials, but must present sufficient probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

         “Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Suburban Propane v. Proctor Gas, 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits evidence that is “merely colorable, ” or is not “significantly probative, ” summary judgment may be granted. Anderson, 477 U.S. at 249-50.

The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

Id. at 247-48. To present a “genuine issue of material fact, ” there must be contested evidence “such that a reasonable jury could return a verdict for the non-moving party.” Id. at 248.

         If the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he bears the burden of proof, then summary judgment is appropriate. Celotex, 477 U.S. at 322. In such circumstances, “there can be ‘no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 322-23; accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant's burden satisfied if he can point to an absence of evidence to support an essential element of nonmoving party's claim). In short, if there is no genuine issue of material fact, summary judgment may be awarded. Celotex, 477 U.S. at 323.

         Where one party is proceeding pro se, I must read the pro se party's papers liberally and interpret them “to raise the strongest arguments that they suggest.” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (internal quotation marks and citation omitted). Despite this liberal interpretation, however, “[u]nsupported allegations do not create a material issue of fact” and cannot overcome a properly supported motion for summary judgment. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

         II. Facts[3]

         Construed in the light most favorable to Tyus, see Anderson, 477 U.S. at 255, the facts are as follows. In October 2010, a jury empaneled in this court acquitted Tyus of all federal criminal charges stemming from an arrest that occurred in November 2009. See United States v. Muller, No. 3:09-cr-00247 (RNC), Judgment of Acquittal after Jury Trial, Doc. No. 494. After his release from custody, Tyus returned to New London, Connecticut.

         On January 18, 2011, Officers Henderson and Lamontagne pulled Tyus over for a traffic violation. The officers issued Tyus a warning ticket for having a defective rear marker plate light. Tyus asserts that his rear marker plate light was fully functional at the time of the stop.

         On January 22, 2011, Officers Henderson and Newton stopped Tyus because his vehicle had no front marker plate. Tyus-who was accompanied by a passenger, Lashawn Cecil- contends that his vehicle did, in fact, have a front marker plate at the time of the stop. During the stop, Officer Newton claimed to smell the odor of marijuana in Tyus's car, and asked him to exit the vehicle. (At some point before the officers pulled Tyus over, he had been smoking marijuana in the car.) Officer Newton then searched Tyus. Although the officer did not find any narcotics or other contraband during the search, he did discover a knife in one of Tyus's pant pockets. Officer Newton issued Tyus a traffic ticket for failure to display a front marker plate, but did not charge or arrest him for possession of a weapon.

         Meanwhile, Officer Henderson observed Tyus's passenger, Cecil, moving his hands in a manner that suggested he was trying to conceal something. Officer Henderson ordered Cecil to step out of the vehicle, and Officer Newton conducted a search of Cecil's person. In the course of the search, Officer Newton patted over an object in the front of Cecil's pants. Cecil admitted that the object was marijuana and removed the bag himself. The officers searched Tyus's car for further contraband, but did not find any. They then placed Cecil under arrest on charges of possession of marijuana and transported him to the New London police station.

         Later that day, Officer Henderson prepared an incident report regarding the stop and search of Tyus and his car, and the search and arrest of Cecil. Sergeant McBride verified the report. Tyus later attempted to challenge the traffic violation, but a clerk at the Norwich Superior Court informed him that there was no traffic violation on record.

         Two weeks later, on February 5, 2011, Officer Newton pulled Tyus over on Garfield Avenue in New London for failing to display a front marker plate, having tinted car windows, and traveling too fast given the road and weather conditions. Tyus, who was driving the vehicle, was accompanied by a woman in the front passenger seat. Just after Officer Newton pulled over Tyus, Officer Marcaccio arrived at the scene. After conversing with Tyus through the driver's side window, Officer Newton asked Tyus to exit the vehicle. Tyus rose to get out of his car, and a knife-which Tyus identified as his own-fell out of his pocket onto the front seat.

         Officer Newton then conducted a manual search of Tyus as Tyus stood facing his car on the driver's side. During the search, Officer Newton repeatedly reached into the pockets of Tyus's pants and grabbed under Tyus's buttocks and crotch area. The officer did not find any other weapons, but discovered cash in Tyus's pockets and claimed to have felt a non-anatomical object in his buttocks area. Officer Marcaccio stood nearby and observed the entire search.

         After the search was complete, Officer Newton escorted Tyus to the back of the vehicle, but did not handcuff him or retrieve the knife from the front seat. He used his cell phone to make a call while Officer Marcaccio stood by Tyus. Approximately five minutes after completing the manual search of Tyus-by which time Officer Pelchat also had arrived at the scene-Officer Newton went to the front seat of the car and obtained Tyus's knife.

         While Officer Newton returned to Tyus's position at the back of the car, Officers Marcaccio and Pelchat went to the other side of the vehicle and spoke to Tyus's passenger. They asked the woman to exit the vehicle and conducted a pat search with her consent. After the search, the officers did not arrest the passenger and permitted her to return to the vehicle.

         Approximately fifteen minutes after Tyus was pulled over, Officer Lynch arrived at the scene. He spoke first with Tyus and then with Officer Newton. At that point, Officer Newton placed Tyus in handcuffs, and Officer Lynch conducted two brief manual pat searches of Tyus's buttocks area on the outside of his clothes while Officers Marcaccio, Newton, and Pelchat looked on. After those searches, Officers Newton and Lynch escorted Tyus to Officer Marcaccio's police vehicle and placed him inside. Officer Newton then arrested Tyus on charges of carrying a dangerous weapon and possession of a weapon in a motor vehicle.

         Officers Marcaccio and Pelchat transported Tyus to the New London Police station, where Officer Pelchat issued Tyus a traffic ticket for failing to display a front marker plate, operating a vehicle with tinted windows without a permit, and traveling too fast given the weather conditions. (When Tyus later attempted to challenge the traffic violations, a clerk in the Connecticut Superior Court informed him that there were no such traffic violations on record.) During booking at the station, Officers Lynch and Newton again pat-searched Tyus and claimed to have felt a non-anatomical object in the area of Tyus's buttocks. As a result, Sergeant Christina authorized Officers Lynch, Newton and Pelchat to conduct a strip search.

         The officers escorted Tyus to a separate room in order to perform the strip search, but Tyus refused to identify or remove the object from his buttocks. Despite Tyus's resistance- which at one point led Sergeant Christina to threaten to tase him if he did not comply-Officers Lynch and Pelchat were able to bring Tyus to the floor, and Officer Newton then pulled down Tyus's pants. The officers observed a plastic bag between Tyus's buttocks, which Officer Newton retrieved. He and Officer Pelchat immediately recognized the substance in the bag as crack cocaine. None of the officers entered a finger or other body part into Tyus's rectum during the search.

         Afterwards, Officer Newton charged Tyus with additional criminal violations, including interference with a police officer, possession of drug paraphernalia, possession of marijuana, possession of marijuana within 1500 feet of a housing project, possession of crack cocaine with intent to sell, and possession of crack cocaine with intent to sell within 1500 feet of a housing project. Lieutenant Wright verified the incident report prepared by Officer Newton regarding the stop and searches on February 5, 2011. Subsequently, Tyus was able to post bond, and the police released him from custody.

         On February 28, 2011, a United States Magistrate Judge issued a warrant for Tyus's arrest on federal criminal charges based on the narcotics found on him in the course of the strip search conducted by the New London police. See United States v. Tyus, No. 3:11-cr-00045, Doc. No. 1. On March 3, 2011, Officer Newton stopped a vehicle in which Tyus was a passenger in order to enforce the outstanding federal warrant. Officers O'Mara and Henderson responded as backup. Officer Newton asked Tyus to exit the vehicle, searched him, and placed him under arrest in accordance with the warrant. Because Officer Newton claimed to smell the odor of marijuana in the car, he searched the vehicle and recovered a knife belonging to Tyus in the pocket of the front passenger door. Officer Newton then also charged Tyus with possessing a weapon in a motor vehicle and with carrying a dangerous weapon.

         The officers transported Tyus to the New London police station, where Officer Newton conducted a pat search of Tyus. He then sought and obtained from Lieutenant Bergeson permission to conduct a strip search of Tyus for contraband and weapons. Officers Newton and Henderson conducted the search, but did not find any narcotics, weapons or other contraband.

         On March 4, 2011, ATF Agents Riordan and Wheeler transported Tyus to federal court for his arraignment on the charge of possession of narcotics with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). Nearly one year later, on February 17, 2012, the United States moved to dismiss the federal criminal charges against Tyus after learning that one of the arresting New London police officers-Roger Newton-had been identified as having planted drugs on a suspect during an arrest. See United States v. Tyus, No. 3:11-cr-00045, Doc. No. 71. On February 21, 2012, pursuant to that motion, Tyus's federal criminal case was dismissed. See id., Doc. No. 72.

         In September 2012, Tyus appeared in state court for sentencing on the charges stemming from his arrest on March 3, 2011, and on a charge of violating his probation. Tyus pled guilty to the charge of carrying a dangerous weapon and admitted the probation violation charge. The state court terminated Tyus's probation and sentenced him to three years of imprisonment on the weapons possession charge. The prosecutor entered nolle prosequi with respect to all other pending charges, including those that were the basis for Tyus's arrest on February 5, 2011.

         III. Discussion

         The motions for summary judgment filed by the New London defendants and defendant Newton address the same claims. Thus, I will consider both motions together.

         A. Fifth and Fourteenth Amendment Claims

         Counts V and VI of the Amended Complaint purport to state claims for violation of Tyus's due process rights under the Fifth and Fourteenth Amendments.[4] Count V includes a claim that all defendants conspired to deprive Tyus of his liberty in violation of rights protected by the Fourth, Fifth, and Fourteenth Amendments, when they searched him in an unreasonable manner on February 5, 2011 and arrested him without probable cause on February 5, 2011 and March 3, 2011.[5] Am. Compl., Doc. No. 51, at ¶¶ 83 & 84. Count VI of the amended complaint alleges, among other things, that all defendants deprived Tyus of his liberty in violation of the substantive due process clause of the Fourteenth Amendment when they subjected him to false arrests. Id. at ¶¶ 85 & 86. I previously dismissed Tyus's Fourteenth Amendment due process claim against the federal defendants, see Order, Doc. No. 92, at 11-12, but did not address his Fifth Amendment due process claim against the New London defendants and Officer Newton.

         To the extent that Tyus asserts a Fifth Amendment due process claim against Officer Newton and the New London defendants, I dismiss the claim because the Fifth Amendment due process clause applies only to actions by the United States government and federal employees. See, e.g., Dusenbery v. United States, 534 U.S. 161, 167 (2002) (holding that the Fifth Amendment's Due Process Clause only protects citizens against the conduct of federal government officials, not state officials); Ambrose v. City of New York, 623 F.Supp.2d 454, 466-67 (S.D.N.Y. 2009) (dismissing a Fifth Amendment due process claim against the city because the plaintiff had not alleged that the federal government had violated his rights); Cassidy v. Scopetta, 365 F.Supp.2d 283, 286 (E.D.N.Y. 2005) (dismissing Fifth Amendment due process claims against the city and fire department officials because defendants were not federal employees); see also 28 U.S.C. § 1915(e)(2)(B)(ii) (court may dismiss “at any time” portions of a complaint that “fail[] to state a claim on which relief may be granted”). The current and former municipal defendants are not federal employees, and so Tyus cannot state a claim against them for violating rights protected by the Fifth Amendment.

         To the extent that Tyus asserts a Fourteenth Amendment due process claim against Officer Newton and the New London defendants for depriving him of his liberty, that claim fails because it is predicated on his Fourth Amendment false arrest claim. As the United States Supreme Court has stated, if “a particular Amendment ‘provides an explicit textual source of constitutional protection' against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process” must be the guide for analyzing these claims.'” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). Here, Tyus's claims of false arrest, excessive force and deprivation of liberty are all covered by the Fourth Amendment's protections against unlawful seizure. Therefore, Tyus cannot state a general substantive due process claim, nor can he allege those same injuries as violations of his Fourteenth Amendment substantive due process rights. See Id. at 274-75 (“The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it . . . . [Therefore, ] substantive due process . . . can afford [the plaintiff] no relief.”); Maliha v. Faluotico, 286 F. App'x 742, 744 (2d Cir. 2008) (holding that plaintiff's substantive due process claim merged with his Fourth Amendment claim because the former claim arose from the same set of actions that allegedly violated his Fourth Amendment rights); Pinter v. City of New York, 976 F.Supp.2d 539, 573 (S.D.N.Y. 2013) (“There is no cause of action for false arrest or unlawful stop under the Due Process Clause of the Fourteenth Amendment.” (citations omitted)); Snow v. Village of Chatham, 84 F.Supp.2d 322, 327 (N.D.N.Y. 2000) (“Constitutional claims arising out of a deprivation of liberty must be examined under Fourth Amendment standards, not due process standards under the Fifth and Fourteenth Amendments.” (citations omitted)).

         As for Tyus's Fifth Amendment due process claims against the terminated federal defendants, to the extent that I did not already address the Fifth Amendment due process claims against them, see Order, Doc. No. 92, at 11-12, those claims fail for the same reasons applicable to the Fourteenth Amendment due process claims. Claims of due process violations arising under the Fifth and Fourteenth Amendments are analyzed under the same standards. See Zynger v. Dep't of Homeland Sec., 615 F.Supp.2d 50, 55 n.5 (E.D.N.Y. 2009) (“There does not appear to be any substantive difference between due process claims asserted under the Fifth Amendment's due process clause . . . [and] the equivalent clause in the Fourteenth Amendment.”), aff'd, 370 F. App'x ...


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