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Ferrara v. Maturo

United States District Court, D. Connecticut

September 25, 2017

VINCENT FERRARA Plaintiff,
v.
JOSEPH MATURO, JR., ET AL. Defendants.

          RULING RE: MOTION TO DISMISS (DOC. NO. 19) AND MOTION TO AMEND (DOC. NO. 24)

          Janet C. Hall, United States District Judge.

         I. INTRODUCTION

         The plaintiff, Vincent Ferrara, filed a Complaint on March 1, 2017. Complaint (“Compl.”) (Doc. No. 1). In it, Ferrara brings five claims against the defendants Mayor Joseph Maturo, Chiefs of Police Edward Lennon and Brent Larrabee, Deputy Chief of Police James Naccarato, Police Sergeants Craig Michalowski and Kevin Klarmon, Police Officer Robert Brockett, the Town of East Haven (“the Town”), and the East Haven Board of Police Commissioners (“EHBPC”). Ferrara alleges that the defendants retaliated against him for cooperating with the Department of Justice (“DOJ”) in its investigation of the East Haven Police Department (“EHPD”). See Proposed Amended Complaint (“Am. Compl.”) (Doc. No. 24-1).

         The defendants filed a Motion to Dismiss Counts One, Two, Three, and Five of the Complaint on May 8, 2017. Motion to Dismiss (“Mot. to Dismiss”) (Doc. No. 19). Ferrara also filed a Motion to Amend the Complaint on July 20, 2017, to add a sixth cause of action under Conn. Gen. Stat. § 31-51q. Motion to Amend Complaint (“Mot. to Amend”) (Doc. No. 24).

         For the reasons set forth below, the court grants Ferrara's Motion to Amend. The court also grants the defendants' Motion to Dismiss as to Count Five and denies the Motion as to Counts One, Two, and Three.

         II. FERRARA'S MOTION TO AMEND

         Federal Rule of Civil Procedure 15(a)(2) provides that a party that is no longer entitled to amend as a matter of course “may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). In those cases, the court “should freely give leave when justice so requires.” Id. Ferrara's Proposed Amended Complaint seeks to add Count Six, alleging that the defendants violated Conn. Gen. Stat. § 31-51q by disciplining Ferrara for exercising his First Amendment rights. See Mot. to Amend. The Proposed Amended Complaint makes no changes to the alleged facts or the other five Counts from the original Complaint and therefore does not alter in any way the court's analysis of the defendants' Motion to Dismiss. See Id. The defendants have the opportunity to respond to the additional count and are not prejudiced by the amendment. Nor have they opposed the Motion. Thus, the court finds that justice would be served by permitting Ferrara to amend the Complaint, and the Motion is granted.

         Noting that the Proposed Amended Complaint is substantively identical to the original Complaint in all areas relevant to the defendants' Motion to Dismiss, the court now treats the Proposed Amended Complaint as the operative complaint. See McKnight v. Mental Health Ass'n of Conn., No. 3:13-CV-1436 (SRU), 2015 WL 5116766, at *1 (D. Conn. Aug. 28, 2015).

         III. FACTS

         The Amended Complaint alleges the following facts.[1] Ferrara was employed as a police officer for the Town of East Haven beginning in 2007. Am. Compl. at ¶ 21. In 2009, the DOJ Civil Rights Division investigated the EHPD for police misconduct, violations of constitutional rights, and discrimination. See id. at ¶ 22. Among other findings, the DOJ found that “Chief Gallo and other EHPD officers created a hostile and intimidating environment for persons who wished to cooperate with [their] investigation at EHPD.” Id. 26. In 2012, the investigation resulted in a Settlement Agreement and Compliance Order that required the EHBPC to establish a policy that “expressly prohibit[s] all forms of retaliation, whether subtle or direct, including discouragement, intimidation, coercion, or adverse action, against any person, civilian or officer, who reports misconduct, makes a misconduct complaint or cooperates with an investigation of misconduct.” Id. at ¶ 65; see also id. at ¶ 66.

         In 2010, the DOJ Criminal Division also investigated the EHPD for similar violations. Id. at ¶ 31. Ferrara cooperated with the DOJ and the FBI in the investigation by providing information about discriminatory and illegal actions of EHPD officers and by testifying against them before a grand jury. See id. at ¶¶ 32-37. The Amended Complaint alleges that this speech is protected by the First Amendment. See id. at ¶¶ 76-77. Several EHPD officers were subsequently indicted for criminal violations, including among other things, “instances of harassment and intimidation of fellow officers believed to be cooperating with the DOJ/FBI.” Id. at ¶¶ 52-53.

         The Amended Complaint alleges that other EHPD officers, including the defendants, learned of Ferrara's cooperation and harassed him in retaliation. See id. at ¶ 38, 54. Examples of such harassment against Ferrara include making threats and intimidating comments at police union meetings, hanging an offensive poster outside his locker, ordering new officers not to associate with him, refusing to back him up on calls, threatening him with a gun, and filing false complaints against him. See, e.g., id. at ¶¶ 39-51, 60-64, 69. For instance, in 2016, defendant Sergeant Michalowski filed a false complaint of unreasonable force against Ferrara. Id. at ¶ 60. Additionally, in March of that year, defendant Chief of Police Larrabee suspended Ferrara for ten days without cause on a false finding that he violated the disciplinary matrix. Id. at ¶ 63. When Ferrara appealed the suspension to the EHBPC, the EHBPC initially indicated that it would overturn the suspension but, after holding an executive session and postponing the meeting, the EHBPC instead upheld it. Id. at ¶ 64. Ferrara also alleges that he filed grievances and complaints about the harassment and retaliation to Mayor Maturo, Chiefs of Police Larrabee and Lennon, and the EHBPC, but none of the defendants acted on his complaints. See id. at ¶¶ 46, 70-71.

         The Amended Complaint contains six counts against the defendants based on these facts. Pursuant to section 1983, Count One alleges that the defendants violated Ferrara's First Amendment rights by retaliating against him because of his protected speech in cooperation with the DOJ and FBI. See id. at ¶¶ 76-83. Count Two alleges that the defendants violated Ferrara's Fourteenth Amendment rights by failing to provide adequate procedures before disciplining him and instead using the disciplinary process to harass him. See id. at ¶¶ 85-92. Count Three alleges that the Town of East Haven is liable for the aforementioned violations under Monell v. Department of Social Services, 436 U.S. 658 (1978). See id. at ¶¶ 93-100. Count Four alleges that the defendants, by their harassment and retaliation, intentionally inflicted emotional distress on Ferrara. See id. ¶¶ 101-05. Count Five alleges that the Town is liable for damages caused by the negligence of its officers under Conn. Gen. Stat. § 52-557n. See id. at ¶¶ 107-08. Finally, Count Six, which was added in the Amended Complaint, alleges that the defendants violated Conn. Gen. Stat. § 31-51q by disciplining Ferrara for exercising his First Amendment rights. See id. at ¶¶ 110-11. The defendants now move to dismiss Counts One, Two, Three, and Five of the above.

         IV. LEGAL STANDARD

         Federal Rule of Civil Procedure 8(a) requires a complaint to plead “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a). Under Rule 12(b)(6), to survive a motion to dismiss for failure to state a claim, that plain statement must allege facts sufficient to state a plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While this plausibility standard does not require probability, it is not satisfied by “a sheer possibility that a defendant has acted unlawfully” or by facts that are “merely consistent with a defendant's liability.” Id. (internal quotation marks omitted).

         In deciding a motion to dismiss under Rule 12(b)(6), the court must accept all material factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Hemi Grp., LLC v. City of New York, 559 U.S. 1, 5 (2010); Jaghory v. N.Y. State Dep't Educ., 131 F.3d 326, 329 (2d Cir. 1997). However, the court is not required to accept as true a “legal conclusion couched as a factual allegation.” Timm v. Faucher, No. 3:16-CV-00531 (VAB), 2017 WL 1230846, at *6 (D. Conn. Mar. 31, 2017) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). In those instances, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The court may consider “only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings, and matters of which judicial notice should be taken.” Borg v. Town of Westport, No. 3:15-CV-1380 (AWT), 2016, WL 9001021, at *3 (D. Conn. Aug. 18, 2016) (quoting Samuels v. Air Trans. Local 504, 992 F.2d 12, 15 (2d Cir. 1993)).

         V. DISCUSSION

         The defendants move to dismiss Counts One, Two, Three, and Five.[2] They argue that Counts One and Two fail to state a claim first, because the allegations of conspiracy are conclusory, vague, and general, and second, because a conspiracy cannot exist between members of the same corporation.[3] See Defendant's Memorandum in Support of Motion to Dismiss (“Mem. in Supp.”) at 4-12. The defendants argue that Count Three fails to state a claim against the Town of East Haven because Ferrara has not pled facts indicating that his alleged injuries were caused by a policy of the Town. See id. at 12-18. Finally, they argue that Count Five fails to state a claim of negligence against the Town because the Amended Complaint has pled only facts showing that the defendants acted intentionally, not negligently. See id. at 18-20.

         A. First and Fourteenth Amendment Claims ...


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