United States District Court, D. Connecticut
RULING ON MOTIONS FOR SUMMARY JUDGMENT
R. Underhill United States District Judge.
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.
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.
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.
In the order, I granted Tyus leave to file an amended
complaint,  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.
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.
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.
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.
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.
Standard of Review
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).
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.
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.
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).
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.
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.
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.
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
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.
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.
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.
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.
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
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
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
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
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.
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.
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.
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.
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.
motions for summary judgment filed by the New London
defendants and defendant Newton address the same claims.
Thus, I will consider both motions together.
Fifth and Fourteenth Amendment Claims
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. 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. 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.
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.
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)).
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 ...