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Boudreau v. Smith

United States District Court, D. Connecticut

July 12, 2017

JASON BOUDREAU, Plaintiff,
v.
SMITH, et al., Defendants.

          INITIAL REVIEW ORDER

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE.

         The plaintiff, Jason Boudreau, incarcerated and pro se, has filed a complaint pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, against Agent Doug Smith, Officer Luigi Amasino, Sergeant Stanley Konesky III, Sergeant Eula, Officer Kaufman, Officer Carney, Agent James Bentz, Agent David Riccio, and Agent Brendan Cullen in their individual capacities for monetary damages. All of those defendants are employees of either the Branford Police Department (“BPD”) or the United States Department of Homeland Security (“DHS”). Boudreau is suing those defendants for use of excessive force and common law assault, battery, infliction of emotional distress, and negligence. Boudreau is also suing the town of Branford, Connecticut and the BPD for supervisory liability. On April 13, 2017, the court, Garfinkel, J., granted Boudreau's motion to proceed in forma pauperis. For the following reasons, I dismiss Boudreau's complaint in part.

         I. Standard of Review

         Under section 1915A of Title 28 of the United States Code, I must review prisoner civil complaints and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. Although detailed allegations are not required, the complaint must include sufficient facts to afford the defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a right to relief. Bell Atlantic 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. Factual Allegations

         On December 28, 2015, the DHS enlisted the assistance of the BPD in arresting Boudreau. DHS Agent Smith informed Sergeant Eula of the BPD that he had obtained Boudreau's GPS location by pinging his cellular telephone. Using that information, BPD officers located Boudreau's vehicle, which was unoccupied at the time, in the parking lot of 1060 West Main Street in Branford. The DHS agents and BPD officers on scene then requested the use of a canine officer to locate Boudreau himself. A short time later, BPD Officer Amasino arrived with his patrol canine named Joker. Officer Amasino permitted Joker to enter and sniff inside Boudreau's vehicle. BPD Officer Carney removed the driver side floor mat from the vehicle, which Joker then sniffed. Meanwhile, DHS had triangulated Boudreau's location using cell network technology to Branford Cue and Brew, a pool hall in Branford. DHS agents and BPD officers immediately traveled to that location.

         Upon arrival, DHS Agents Smith, Bentz, Riccio, and Cullen, BPD Sergeants Konesky and Eula, and BPD Officers Kaufman and Carney entered Branford Cue & Brew and identified Boudreau. Boudreau was immediately handcuffed, searched, and instructed to lean against a pool table. Kaufman notified Amasino via radio that Boudreau had been detained, and Officer Amasino requested that the officers hold Boudreau at the pool hall until he and Joker arrived. The DHS Agents and BPD officers at the pool hall agreed to do so, and Boudreau remained handcuffed inside the pool hall for approximately thirty minutes.

         When Amasino and Joker arrived at the pool hall, Joker nudged the door with his nose, indicating to Amasino that he wanted to enter the building. Amasino then opened the door, and Joker pulled very hard on his leash toward Boudreau, who was handcuffed and leaning against a pool table. Joker barked wildly at Boudreau. Smith, Konesky, Eula, Kaufman, Carney, Bentz, Riccio, Cullen, and Amasino permitted Joker to approach Boudreau and nudge him with his nose. Amasino then gave Joker a non-verbal, hand command, and Joker bit Boudreau on his left thigh causing him severe pain and two small lacerations. Amasino removed Joker from the immediate vicinity of Boudreau but did not inform any of the other officers or agents on scene that Boudreau had been bitten.

         Boudreau told Sergeant Eula that Joker had bitten him. Eula spoke with Amasino, who suggested that photographs be taken of Boudreau's injuries. Kaufman and Eula escorted Boudreau into the men's restroom in the pool hall and took photographs of his leg. Then, they escorted him outside to the parking lot of the pool hall, where Amasino offered him medical assistance. Boudreau declined medical assistance because he was afraid of sustaining additional bodily harm from Joker, Amasino, or other BPD officers. Boudreau was then transported to Donald W. Wyatt Detention Facility in Central Falls, Rhode Island, a holding facility for DHS. There, he received medical treatment for his injuries.

         On January 31, 2016, Boudreau sent written complaints to the BPD, the town of Branford, and the DHS regarding the attack by Joker. None of those recipients responded to Boudreau's complaints, conducted further investigation into the incident, or disciplined any of the officers or agents involved.

         III. Analysis

         Boudreau states eleven causes of action against the defendants in this case. I will first address his claims against the DHS, BPD, and the town of Branford. Then I will address each claim as it is asserted in his complaint.

         A. Claims Against DHS Agents

         The four DHS agents being sued in this action, Smith, Bentz, Riccio, and Cullen, are federal officials. Generally, claims brought pursuant to 42 U.S.C. § 1983 are not cognizable against federal officials. See Nghiem v. U.S. Dep't of Veterans Affairs, 323 F. App'x 16, 18 (2d Cir. 2009) (section 1983 applies only to state actors, not federal officials). However, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), federal officials may be sued for damages in their individual capacities for the violations of a person's constitutional rights. “The purpose of Bivens is to deter individual federal officers from committing constitutional violations.” Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 70 (2001). Although Boudreau has not separately raised a Bivens claim against the four DHS agents, I will construe his complaint liberally to raise a Bivens claim, and permit his claims against those four defendants to proceed at this time.

         B. Claims Against the BPD and Town of Branford

         “Congress did not intend municipalities to be held liable [under section 1983] unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v. Dep't of Soc. Services of City of New York, 436 U.S. 658, 691 (1978). To prevail on a claim against a municipality under section 1983 based on the acts of a public official, a plaintiff must prove: “(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008); see also Miron v. Town of Stratford, 881 F.Supp.2d 280, 284 (D. Conn. 2012) (to establish municipal liability, plaintiff must show that municipality violated federal right through municipal policy, custom, or practice or decision of municipal policymaker with final policymaking authority). A municipality cannot be held liable under section 1983 simply because one of its employees committed a tort. Roe, 542 F.3d at 36 (quoting Bd. of County Comm'rs v. Brown, 520 U.S. 397, 405 (1997)). In other words, a plaintiff cannot establish municipal liability by pointing to a single act of unconstitutional conduct by the municipality's employee or subordinate. Triano v. Town of Harrison, N.Y., 895 F.Supp.2d 526, 532 (S.D.N.Y. 2012).

         “[A] plaintiff may establish municipal liability by demonstrating that a policy maker indirectly caused the misconduct of a subordinate municipal employee by acquiescing in a longstanding practice or custom which may fairly be said to represent official policy.” Triano, 895 F.Supp.2d at 532 (internal quotation marks omitted). For example, “a municipality may be liable for the failure to train or supervise its employees where such a failure amounts to deliberate indifference to the risk that its employees will unconstitutionally apply its policies without more training or supervision.” Id. (internal quotation marks omitted). The Second Circuit has identified three requirements that a plaintiff must satisfy to establish municipal liability under this “failure to train theory.” Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007). “First, the plaintiff must show that a policymaker knows to a moral certainty that her employees will confront a given situation.” Id. (internal quotation marks omitted). “Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation.” Id. “Finally, the plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights.” Id.

         In this case, Boudreau alleges that the BPD and Town of Branford failed to investigate the dog bite incident or take any action against the officers involved. He, therefore, claims that both of those defendants are liable for the excessive force, assault, and infliction of emotional distress committed by their subordinates. He also claims that the BPD and Town of Branford “knew, or should have know[n]” that the officers involved in the incident “were prone to use excessive and/or unreasonable force upon civilians, ” “failed to implement and carry out adequate procedures to properly and adequately test, screen, evaluate, investigate and/or review [such] behaviors, ” permitted a policy of allowing its police officers “to use unjustifiable and excessive force upon citizens being arrested and/or in police custody, ” failed to train or supervise its officers, and encouraged police misconduct. Compl. at ¶¶ 128, 130, 145-47. It appears from Boudreau's complaint that all of these allegations arose from the single incident during which the police canine bit him on the leg. His allegations are entirely conclusory and unsupported by any facts suggesting that the BPD officers were acting pursuant to a well-settled policy, custom or practice of unconstitutional police conduct. See Triano, 895 F.Supp.2d at 533-35 (plaintiff's conclusory allegations that town “permitted, tolerated, and encouraged” pattern of illegal abuses by its police officers insufficient to state claim for municipal liability); Miron, 881 F.Supp.2d at 286 (plaintiff ...


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