United States District Court, D. Connecticut
RULING RE: MOTION TO DISMISS (DOC. NO. 19) AND MOTION
TO AMEND (DOC. NO. 24)
C. Hall, United States District Judge.
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).
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).
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.
FERRARA'S MOTION TO AMEND
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.
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.
Amended Complaint alleges the following facts. 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.
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.
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.
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.
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).
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)).
defendants move to dismiss Counts One, Two, Three, and
Five. 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. 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.
First and Fourteenth Amendment Claims ...