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Cane v. New Britain Police Dep't

United States District Court, D. Connecticut

February 27, 2017

ROBERT A. CANE, Plaintiff,
v.
NEW BRITAIN POLICE DEP'T, et al., Defendants.

          INITIAL REVIEW ORDER

          STEFAN R. UNDERHILL, United States District Judge

         Robert A. Cane resided in New Britain, Connecticut, when he initiated this action pursuant to 42 U.S.C. § 1983 against the New Britain Police Department, Police Chief James Wardell, Captain Thomas Steck, Sergeants Carlos Burgos and Arthur Powers, Officers Peter Scirpo, Francesco Barbagiovanni, Amando Elias, Egan and Saylor, Detectives Daniel McBride and Carl Mordasiwicz, Lieutenant Rodriguez and Dog Warden Russo. Cane is currently incarcerated at the MacDougall-Walker Correctional Institution. On October 11, 2016, the court granted Cane leave to proceed in forma pauperis.

         Cane has filed a motion for appointment of counsel and motions for extension of time to serve the complaint. For the reasons set forth below, the complaint will be dismissed in part and the motions for appointment of counsel and for extension of time will be denied.

         I. Standard of Review

         When the court grants in forma pauperis status, it must conduct an initial screening of the complaint to ensure that the case is sufficiently meritorious to proceed. 28 U.S.C. § 1915. Subsection (e) of that provision protects against abuses of the in forma pauperis privilege by providing that the Court “shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; or (ii) fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B).

         A claim is “frivolous” if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989). As the Supreme Court explained in Neitzke, section 1915(e)(2) “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the usual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327.

         Although detailed allegations are not required, the complaint must include sufficient facts to afford the defendants fair notice of the claims and grounds upon which they are based and to demonstrate a plausible right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Nevertheless, it is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90. 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).

         II. Background

         On October 7, 2013, Cane was sleeping in the living room of his home located at 830 Slater Road in New Britain, Connecticut. Cane woke up when he heard activity outside his home. Out of his window he could see that New Britain police officers were blocking the area in front of his home. An officer directed Cane to come out of his house. Cane went out on his front porch and asked if the officers had a warrant. They indicated that they did not possess a warrant. Cane told them to come back with a warrant and went back inside his home.

         An officer telephoned Cane and directed him to exit the fenced area of his yard so that they could talk. Captain Steck, Sergeant Burgos, Officers Scirpo, Barbagiovanni and Elias and Detective McBride were armed with rifles and intimidated Cane as he stood in his yard and on his porch. Sergeant Powers threatened Cane during several phone calls. Cane repeatedly told the officers to come back to his home with a warrant.

         After thirty minutes of verbal harassment and intimidation, Officers Saylor and Egan, Lieutenant Rodriguez and Detective Mordasiwicz entered Cane's property over the fence surrounding his yard and cut a hole in his garage. Cane feared for his life and surrendered to Officers Saylor and Egan, Lieutenant Rodriguez and Detective Mordasiwicz. Although Cane made those police officers and officials aware that he did not possess any weapons, they tackled him to the ground from behind using excessive force. Cane sustained a tear in his right rotator cuff that subsequently required surgery. Officers Saylor and Egan, Lieutenant Rodriguez and Detective Mordasiwicz took Cane into custody and removed him from his property.

         Captain Steck, Sergeant Burgos, Officers Scirpo, Barbagiovanni, Elias, Egan and Saylor, Detectives McBride and Mordasiwicz, Lieutenant Rodriguez and Dog Warden Russo then entered Cane's home without a warrant, searched it and seized various items of contraband. The items seized were used to obtain a search warrant the following day and to support Cane's arrest on felony charges. Chief Wardell supervised the searches of Cane's home.

         III. Discussion

         A. Claims against New ...


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