United States District Court, D. Connecticut
RULING ON DEFENDANTS FRATTA AND MAROTTA'S MOTION
FOR SUMMARY JUDGMENT (DOC. NO. 198) AND DEFENDANT
STANKYE'S MOTION FOR SUMMARY JUDGMENT (DOC. NO.
C. Hall, United States District Judge
STANDARD OF REVIEW
Personal Involvement (Marotta)
Procedural Due Process (Fratta and Stankye)
Removal of A.S. from Shakir's Home
Interview of A.S. at Derby Police Department
Release of A.S. to Gandy
Substantive Due Process (Fratta and Stankye)
Fourth Amendment Unlawful Seizure (Stankye)
Fourth Amendment Unlawful Search (Stankye)
Eighth Amendment Conditions of Confinement (Stankye)
Declaratory Relief (Stankye)
plaintiff, Anwar Shakir, Sr., (“Shakir”), is
currently incarcerated at Corrigan-Radgowski Correctional
Institution, in Uncasville, Connecticut. He brings this civil
rights action pro se pursuant to section 1915 of
title 28 of the United States Code against Derby Police
Detective Charles Stankye, Department of Children and
Families (“DCF”) Supervisor Kathie Marotta, and
DCF Social Worker Michele Fratta. See Amended
Complaint (“Am. Compl.”) (Doc. No. 106).
the court is a Motion for Summary Judgment filed by Fratta
and Marotta and a Motion for Summary Judgment filed by
Stankye. See Fratta and Marotta Motion for Summary
Judgment (“Fratta MFSJ”) (Doc. No. 198); Stankye
Motion for Summary Judgment (“Stankye MFSJ”)
(Doc. No. 201). For the reasons below, Fratta and
Marotta's Motion is granted, and Stankye's Motion is
granted in part and denied in part.
December 15, 2011, Shakir filed a Complaint against Stankye,
Marotta, Fratta, the Derby Police Department, and Assistant
State's Attorney Charles Stango. See Complaint
(“Compl.”) (Doc. No. 1). On March 31, 2015, the
court granted a Motion to Dismiss all claims against Stango.
See Ruling Granting Stango's Motion to Dismiss
(Doc. No. 101). On April 27, 2015, Shakir filed an Amended
Complaint naming only Stankye, Marotta, and Fratta as
defendants. See Am. Compl. The court then denied
Shakir's Motion for Leave to File a Second Amended
Complaint to clarify some of the allegations in his first
Amended Complaint and to add additional claims. See
Ruling (Doc. No. 175). Thus, the first Amended Complaint
remains the operative complaint.
March 31, 2016, the court granted in part and denied in part
a Motion to Dismiss filed by Stankye and a separate Motion to
Dismiss filed by Fratta and Marotta. See Ruling on
Stankye's Motion to Dismiss (“Ruling on Stankye
MTD”) (Doc. No. 176); Ruling on Fratta and
Marotta's Motion to Dismiss (“Ruling on Fratta
MTD”) (Doc. No. 177). Following these Rulings,
Shakir's federal conspiracy claim, his Fourth Amendment
search and seizure claims, his Fourteenth Amendment
substantive and procedural due process claims, and his Eighth
Amendment conditions of confinement claim remain pending
against Stankye in his individual capacity, and Shakir's
claim for declaratory relief remains pending against Stankye
in his official capacity. See Ruling on Stankye MTD.
Against Fratta and Marotta, the claims that remain pending
are Shakir's Fourteenth Amendment procedural and
substantive due process claims and his federal conspiracy
claim. See Ruling on Fratta MTD.
September 26, 2016, Stankye filed a Motion for Summary
Judgment, and Fratta and Marotta filed a separate Motion for
Summary Judgment. See Stankye MFSJ; Fratta MFSJ. The
court addresses both Motions together in this Ruling.
5, 2017, the court appointed pro bono counsel for
Shakir. See Order Appointing Pro Bono Counsel (Doc.
No. 303). The court granted Shakir's Oral Motion to
Reopen Discovery (Doc. No. 314) to give counsel an
opportunity to conduct and file supplemental briefs on behalf
of Shakir. See Minute Entry (Doc. No. 315). After
the reopened discovery period expired, Shakir filed a
Declaration of additional evidence, but counsel did not file
any supplemental briefings on his behalf. See
Declaration by Plaintiff to Provide Court with Additional
Evidence (“Pl.'s Suppl. Decl.”) (Doc. No.
320). Having received no supplemental briefings, the court
decides the Motions for Summary Judgment based on
Shakir's initial pro se filings. See
Order (Doc. No. 324).
STANDARD OF REVIEW
motion for summary judgment may be granted only where
“there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Redd v. N.Y.Div.
of Parole, 678 F.3d 166, 173- 74 (2d Cir. 2012). The
moving party bears the burden of “showing-that is
pointing out to the district court-that there is an absence
of evidence to support the nonmoving party's case.”
PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105
(2d Cir. 2002) (internal quotation marks and citations
omitted). “Once a party moving for summary judgment has
made the requisite showing that there is no factual dispute,
the nonmoving party bears the burden of presenting evidence
to show that there is, indeed, a genuine issue for
trial.” Santos v. Murdock, 243 F.3d 681, 683
(2d Cir. 2001). The nonmoving party cannot “rely on
conclusory allegations or unsubstantiated speculation,
” but “must come forward with specific evidence
demonstrating the existence of a genuine dispute of material
fact.” Robinson v. Concentra Health Servs.,
Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted).
reviewing the record, the court must “construe the
evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.”
Gary Friedrich Enters., L.L.C. v. Marvel
Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013).
The function of the district court in considering the motion
for summary judgment is not to resolve disputed questions of
fact but only to determine whether, as to any material issue,
a genuine factual dispute exists. . . . Summary judgment is
inappropriate when the admissible materials in the record
make it arguable that the claim has merit, for the court in
considering such a motion must disregard all evidence
favorable to the moving party that the jury is not required
Rogoz v. City of Hartford, 796 F.3d 236, 245-46 (2d
Cir. 2015) (internal quotation marks, citation, and emphasis
one party is proceeding pro se, the court must read
that 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,
“unsupported allegations do not create a material issue
of fact” and cannot overcome a properly supported
motion for summary judgment. Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2000). Additionally,
“only admissible evidence need be considered by the
trial court in ruling on a motion for summary
judgment.” Raskin v. Wyatt Co., 125 F.3d 55,
66 (2d Cir. 1997).
relevant times, Stankye was employed by the Derby Police
Department, and Fratta and Marotta were employed by
DCF. See Stankye's Local Rule 56(a)1 Statement
of Facts (“Stankye L.R. 56(a)1”) (Doc. No. 201-2)
at 1 ¶ 1; Fratta and Marotta's Local Rule 56(a)1
Statement of Facts (“Fratta L.R. 56(a)1”) (Doc.
No. 214-2). Shakir and Starquonda Gandy have one child
together, Anwar Shakir, Jr. (“A.S.”).
See Stankye L.R. 56(a)1, Ex. B (Doc. No. 201-5) at
2; Fratta L.R. 56(a)1 at 2 ¶ 7. Gandy also has another
child, Taeja Gandy (“T.G.”), of whom Shakir is
not the father. See id.
2008, Gandy left the home she shared with Shakir in
Connecticut and moved with T.G. first to Kansas and then
eventually to California. See Fratta L.R. 56(a)1 at
2 ¶ 7; Plaintiff's Opposition to Fratta and
Marotta's MFSJ (“Opp. to Fratta's MSFJ”),
Ex. G7 (“Pl.'s Aff. (Fratta)”) (Doc. No.
214-3) at 3 ¶ 9. Gandy left A.S. to reside with Shakir
in Connecticut. See Fratta L.R. 56(a)1 at 2 ¶
7; Pl.'s Aff. (Fratta) at 3 ¶ 10. In December of
2008, Gandy returned temporarily to Connecticut and, on
January 5, 2009, she reported to Stankye that Shakir had
sexually assaulted T.G. when they had lived together.
See Fratta L.R. 56(a)1 at 3 ¶ 7; Stankye L.R.
56(a)1 at 1 ¶ 2; Plaintiff's Local Rule 56(a)2
Statement of Facts in Response to Stankye's MFSJ
(“Pl.'s L.R. 56(a)2 to Stankye”) (Doc. No.
215-2) at 3 ¶ 2. Stankye reported Gandy's
allegations to DCF, and Marotta assigned Fratta to
investigate the allegations. See Stankye L.R. 56(a)1
at 1 ¶ 3; Pl.'s L.R. 56(a)2 to Stankye at 3 ¶
3; Fratta L.R. 56(a)1 at 1 ¶ 3. On January 12, 2009,
Stankye observed T.G. undergo a forensic interview at the
Child Sexual Abuse Clinic at Yale New Haven Hospital
(“Yale Clinic”). See Stankye L.R. 56(a)1
at 2 ¶ 4; Pl.'s L.R. 56(a)2 to Stankye at 4 ¶
January 13, 2009, Fratta, Marotta, and DCF Program Manager
Karen Grayson concluded that DCF had probable cause to
believe that A.S. was in imminent risk of physical harm
because he was living with Shakir and therefore similarly
situated to T.G. at the time of her alleged sexual assault.
See Fratta L.R. 56(a)1 at 4 ¶ 14;
Plaintiff's Local Rule 56(a)2 Statement of Facts to
Fratta's MFSJ (“Pl.'s L.R. 56(a)2 to
Fratta”) (Doc. No. 214-2) at 6 ¶
14.e. On January 14, Fratta visited Shakir's
home and conducted a minimal facts interview with A.S. and
Shakir. See Fratta L.R. 56(a)1 at 5 ¶ 19, 6
¶ 24; Pl.'s L.R. 56(a)2 to Fratta at 13 ¶ 19;
14 ¶ 24; Stankye L.R. 56(a)1, Ex. C at 1. Based on her
interview, Fratta found no evidence that Shakir had abused
A.S., as well as no violations or unsafe conditions in
Shakir's home. See Fratta L.R. 56(a)1 at 7-8
¶ 28; Pl.'s L.R. 56(a)2 to Fratta at 16 ¶ 28;
Stankye L.R. 56(a)1, Ex. C at 1. Fratta concluded that there
were no immediate concerns to A.S.'s safety. See
Fratta L.R. 56(a)1 at 8 ¶ 29; Pl.'s L.R. 56(a)2 to
Fratta at 16 ¶ 29.
the interview, Shakir signed a DCF Service Agreement/Safety
Plan. See Stankye L.R. 56(a)1 at 3 ¶ 8; Fratta
L.R. 56(a)1 at 8 ¶ 30; Pl.'s L.R. 56(a)2 to Fratta
at 16 ¶ 30. The Service Agreement stated that A.S. would
undergo a forensic interview at the Yale Clinic. See
Stankye L.R. 56(a)1 at 3 ¶ 8; Fratta L.R. 56(a)1 at 8
¶ 31; Plaintiff's Sealed Exhibits (“Pl.'s
Sealed Exhibits”) (Doc. No. 213), Ex. X (“Service
Agreement”) (Doc. No. 213-4). It also stated that
Shakir would “allow [A.S.] to stay with his paternal
grandmother pending further investigation.”
See Service Agreement. The parties do not dispute
that the signed agreement contains this language, but do
disagree as to the interpretation of the requirement. Fratta
and Stankye interpret the agreement to require A.S. to stay
with Shakir's mother, Khalila Shakir Browning, and to
require Browning to care for A.S. See Stankye L.R.
56(a)1 at 3 ¶ 9; Fratta L.R. 56(a)1 at 8 ¶ 32.
Shakir contends that the agreement did not specify that
Browning would care for A.S., such as providing food,
clothing, and rides, but rather that he would continue to
serve that role. See Pl.'s L.R. 56(a)2 to Fratta
at 17 ¶¶ 32-33; Pl.'s L.R. 56(a)2 to Stankye at
4 ¶¶ 8-9.
forensic interview at the Yale Clinic was scheduled for
January 20, 2009, at 11:00 a.m., but the interview did not
occur on that date because Shakir was late in bringing A.S.
and because the Yale Clinic did not want to proceed with
Shakir, a possible abuser, present. See Stankye L.R.
56(a)1 at 3 ¶ 10; Fratta L.R. 56(a)1 at 9 ¶ 36;
Pl.'s L.R. 56(a)2 to Fratta at 19 ¶ 36. Shakir
alleges that he was only made aware that his presence would
be a problem on that date. See Pl.'s L.R. 56(a)2
to Stankye at 4-5 ¶¶ 12-13. DCF agreed to
reschedule the interview, and Shakir agreed that Browning
would bring A.S. to the rescheduled interview. See
Stankye L.R. 56(a)1 at 4 ¶ 12; Pl.'s L.R. 56(a)2 to
Fratta at 19 ¶ 36. Shakir alleges, however, that DCF
never contacted him to reschedule. See Pl.'s
L.R. 56(a)2 to Stankye at 5 ¶ 12.
February 4, 2009, based on the evidence of Shakir's
alleged conduct toward T.G., Stankye prepared an application
and affidavit in support of a warrant for Shakir's arrest
on charges of sexual assault in the first degree and risk of
injury to or impairing the morals of a child. See
Stankye L.R. 56(a)1 at 4 ¶ 14; Pl.'s L.R. 56(a)2 to
Stankye at 5 ¶ 14. A judge issued the warrant later that
day. See Stankye L.R. 56(a)1 at 4 ¶ 15;
Pl.'s L.R. 56(a)2 to Stankye at 5 ¶ 15.
alleges that, “on or about” February 6, 2009, he
then called Gandy to inform her that an arrest warrant for
Shakir had been issued. See Stankye L.R. 56(a)1 at 4
¶ 16. He alleges that Gandy indicated that she was in
Connecticut and prepared to take custody of A.S. after the
arrest. See id. Shakir disputes the timing of the
phone call, alleging that Stankye kept in touch with Gandy
while she was in California and deliberately waited two days
to execute the warrant until she informed him that she had
returned to Connecticut. See Pl.'s L.R. 56(a)2
to Stankye at 5 ¶ 16. Shakir also alleges that Stankye
was aware that Gandy intended to take A.S. back to California
after she received custody. See id.; Plaintiff's
Exhibits (“Pl.'s Exhibits”) (Doc. No. 212),
Ex. H (Doc. No. 212-7) at 85.
February 6, 2009, Stankye and another detective attempted to
serve the warrant at Shakir's place of employment, but
Shakir was not at work that morning. See Stankye
L.R. 56(a)1 at 5 ¶ 17-18; Pl.'s Exhibits, Ex. K11
(Doc. No. 212-27). Shakir alleges that he was not at work
because he was taking A.S. to a doctor's appointment.
See Pl.'s L.R. 56(a)2 to Stankye at 6
¶¶ 18-19. Stankye acknowledges that he was informed
by A.S.'s school that Shakir had picked up his son
earlier that day, but does not mention knowledge of a
doctor's appointment. See Stankye L.R. 56(a)1 at
5 ¶ 19.
along with a Derby Police lieutenant and four officers, then
went to Shakir's residence to serve the warrant.
See Stankye L.R. 56(a)1 at 5 ¶ 20; Pl.'s
L.R. 56(a)2 to Stankye at 6 ¶ 20. Prior to executing the
warrant, Stankye called Browning to determine A.S.'s
whereabouts and was informed that A.S. was with Browning and
A.S.'s aunt. See Stankye L.R. 56(a)1 at 6-7
¶ 26. Stankye requested that Browning bring A.S. to
Shakir's residence, so he could confirm A.S.'s safety
and well-being. See id. Shakir claims that Browning
never informed him of this call, but does not have other
evidence to dispute its occurrence. See Pl.'s
L.R. 56(a)2 to Stankye at 7 ¶ 26.
waiting an hour, during which time Browning had not brought
A.S. to the house, Stankye and the other officers knocked on
Shakir's door to execute the warrant, but Shakir did not
initially respond. See Stankye L.R. 56(a)1 at 6
¶¶ 22-23; Stankye MFSJ, Ex. A (“Stankye
Aff.”) (Doc. No. 201-4) at 5 ¶ 18. Shakir alleges
that he delayed in responding because he was comforting his
son, who was traumatized by the officers banging on the door.
See Pl.'s L.R. 56(a)2 to Stankye at 7
¶¶ 22-23. After 15-20 minutes, Shakir voluntarily
exited his residence, and an officer handcuffed him and
placed him in a police vehicle. See Stankye L.R.
56(a)1 at 7 ¶ 27; Pl.'s L.R. 56(a)2 to Stankye at 7
the vehicle, Stankye asked Shakir at least twice about
A.S.'s location, and Shakir refused to answer.
See Stankye L.R. 56(a)1 at 7 ¶ 28; Pl.'s
L.R. 56(a)2 at 8 ¶ 28. Stankye also affirms in his L.R.
56(a)1 Statement of Facts that he learned that A.S. was not
with Browning. See Stankye L.R. 56(a)1 at 7 ¶
26; Fratta MFSJ, Ex. A (“Fratta Aff.”) at 10
¶ 42.f. In Stankye's Affidavit, however, he does not
state that he learned that A.S. was not with Browning;
rather, he states that he was unable to confirm that A.S. was
with her, presumably because she did not bring A.S. to the
residence, as Stankye had requested. See Stankye
Aff. at 4 ¶ 17, 5 ¶ 21. Stankye alleges that,
because they were unable to confirm A.S.'s location, he
and the other officers demanded entry into Shakir's
residence to search for A.S. See Stankye L.R. 56(a)1
at 7 ¶ 30. Shakir disputes, however, that Stankye was
unaware of A.S.'s whereabouts, alleging that Stankye was
informed earlier that day that Shakir had taken A.S. to a
doctor's appointment. See Pl.'s L.R. 56(a)2
to Stankye at 7 ¶ 25, 30. Shakir also challenges the
other bases cited for the officers' decision to enter his
home. See id. at 7 ¶ 30. It is undisputed that
the officers did not have a warrant for the entry.
See Stankye L.R. 56(a)1 at 7 ¶ 30; Memorandum
in Support of Stankye's MFSJ (“Stankye Mem. in
Supp.”) (Doc. No. 201-1) at 18.
and Stankye also dispute what occurred during the entry and
search. According to Stankye, Shakir's brother, Rasheed
Shakir (“Rasheed”), opened the door in response
to the demands made by the officers and granted them entry
into the residence. See Stankye L.R. 56(a)1 at 8
¶ 31. Stankye alleges that he was not aware of
Rasheed's identity at the time. See id.
According to Shakir, however, Stankye and the other officers
knew his brother's identity, and Rasheed did not grant
the officers entry into the home, but opened the door only
under threat. See Pl.'s L.R. 56(a)2 to Stankye
at 10 ¶ 31; Pl.'s Exhibits, Ex. V. The parties agree
that officers, including Stankye, then entered the residence
and observed bags packed with A.S.'s clothes.
See Stankye L.R. 56(a)1 at 8 ¶ 31; Pl.'s
L.R. 56(a)2 to Stankye at 10 ¶ 31. After locating A.S.,
Stankye and the other officers escorted A.S. out of the
residence to a police vehicle. See Stankye L.R.
56(a)1 at 8 ¶¶ 31-32; Pl.'s L.R. 56(a)2 to
Stankye at 10 ¶ 32. Shakir and A.S. were then
transported separately to the Derby Police Department
(“DPD”). See Stankye L.R. 56(a)1 at 8
¶ 34; Pl.'s L.R. 56(a)2 to Stankye at 11 ¶ 34.
undisputed that Stankye was not the officer that transported
Shakir to the DPD. See Stankye L.R. 56(a)1 at 9
¶ 38; Pl.'s L.R. 56(a)2 to Stankye at 12 ¶ 38.
Shakir alleges that Stankye did, however, transport him from
the police vehicle to the lockup area. See Pl.'s
L.R. 56(a)2 to Stankye at 12 ¶ 34. According to Shakir,
at the DPD, Stankye taunted him about his high bail, required
him to strip of his clothing, and left him in the holding
cell. See Plaintiff's Opposition to Stankye MFSJ
(“Opp. to Stankye MFSJ”), Affidavit
(“Pl.'s Aff. (Stankye)”) (Doc. No. 215-3) at
14 ¶¶ 63-65. Shakir further alleges that the air
conditioning in his cell was turned up to maximum and that he
became physically sick as a result. See Pl.'s
L.R. 56(a)2 to Stankye at 12 ¶ 40; Pl.'s Aff.
(Stankye) at 14 ¶ 67. Shakir admits that he did not see
Stankye or anyone else turn on the air conditioning, but
infers that Stankye was responsible because Stankye was in
charge of the search earlier that day. See Pl.'s
L.R. 56(a)2 at 12 ¶ 39; Deposition by Shakir
(“Shakir Dep. Tr.”) (Doc. No. 216) at 90-91.
disputes all of these facts. He alleges that he did not use
any physical force against Shakir on February 6, 2009, and
that he did not have any contact with Shakir at the DPD on
that date. See Stankye L.R. 56(a)1 at 9 ¶ 41;
Stankye Aff. at 6 ¶¶ 28-29. Stankye further alleges
that he did not know how to adjust the air conditioning at
the police station, did not direct anyone else to do so, and
is unaware of anyone having done so. See Stankye
L.R. 56(a)1 at 9 ¶¶ 39-40.
Shakir was in the holding cell, Stankye contacted Fratta and
Grayson to inform them that A.S. was at the DPD. See
Fratta L.R. 56(a)1 at 11 ¶ 44. Fratta and Stankye allege
that Grayson authorized Fratta to interview A.S. See
id.; Stankye L.R. 56(a)1 at 8 ¶ 34. Stankye further
asserts that he did not participate in or observe the
interview. See Stankye L.R. 56(a)1 at 8 ¶ 35.
Shakir, however, states to the contrary that Fratta and
Stankye agreed to the interview, and that Stankye was
present. See Pl.'s L.R. 56(a)2 to Stankye at
¶ 7 34-35; Pl.'s L.R. 56(a)2 to Fratta at 27 ¶
44. A.S. did not report any abuse during the interview.
See Fratta L.R. 56(a)1 at 11 ¶ 47; Pl.'s
L.R. 56(a)2 to Fratta at 27 ¶ 47.
parties then agree that, after the interview, A.S. was
released into Gandy's custody, but they dispute who
authorized the transfer. See Stankye L.R. 56(a)1 at
9 ¶ 36; Pl.'s L.R. 56(a)2 to Stankye at 11 ¶
36; Fratta L.R. 56(a)1 at 13 ¶ 57; Pl.'s L.R. 56(a)2
to Fratta at 28 ¶ 48. Stankye alleges that Fratta
consented to A.S.'s release to Gandy and that he has not
seen A.S. since Gandy took him. See Stankye L.R.
56(a)1 at 9 ¶¶ 36-37. Fratta alleges that Stankye
informed her that Gandy would be picking up A.S. and that
Fratta and Gandy should leave the police station to avoid a
confrontation with Browning. See Fratta L.R. 56(a)1
at 11 ¶ 48, 12 ¶ 56. Shakir alleges that Stankye,
Fratta, and Marotta were aware that Gandy intended to bring
A.S. back with her to California and conspired together to
allow her to take him. See Pl.'s L.R. 56(a)2 to
Stankye at 5 ¶ 16; Pl.'s L.R. 56(a)2 to Fratta at 28
¶ 48; Pl.'s Exhibits, Ex. Z at 3, 6.
that evening, Fratta learned that Shakir had been released on
bond and intended to retake custody of Shakir. See
Fratta L.R. 56(a)1 at 13 ¶ 59; Pl.'s L.R. 56(a)2 to
Fratta at 31 ¶ 59. Fratta alleges that she was concerned
about A.S.'s safety if he were placed in Shakir's
care. See Fratta L.R. 56(a)1 at 13 ¶ 60. She
spoke with Marotta, who spoke with Grayson, and Grayson
determined that a service agreement for Gandy was unnecessary
because Gandy had legal authority to have custody of A.S. and
DCF had no safety concerns about her. See id. at 14
¶ 65. Grayson further advised that Gandy should contact
the police if Shakir attempted to retake A.S., and Fratta
communicated this information to Gandy. See id.
Shakir only disputes the bases for Grayson's
determination, but not whether these communications took
place. See Pl.'s L.R. 56(a)2 to Fratta at 33-34
states that, after his release, he contacted Browning and the
New Haven Police Department (NHPD) to request assistance in
retaking custody of A.S. See Pl.'s Aff. (Fratta)
at 38-39. Although Shakir drove to Gandy's mother's
house, where he believed A.S. to be staying, he did not enter
the home. See id. at 39. He alleges that the police
informed him that they had contacted DCF and were told by
Marotta to leave A.S. with Gandy because she could keep A.S.
as long as she did not leave the state. See id.;
Pl.'s L.R. 56(a)2 to Fratta at 35-37 ¶¶ 69.e,
70-72. Fratta and Marotta dispute this and allege that
neither of them received any calls on the DCF hotline from
the NHPD between February 6 and February 8, 2009.
See Fratta L.R. 56(a)1 at 14 ¶ 67. They allege
that it was DCF Social Worker Kerry Cayward who spoke to
Officer Josh Kyle, and it was DCF Social Workers Karen Ginand
and Shawn Meaike who spoke to Officer Mastriano. See
id. at 14-17 ¶¶ 68-75.
then alleges that, on February 7, a NHPD officer went to
Gandy's mother's home and found neither A.S. nor
Gandy there. See Pl.'s Aff. (Fratta) at 40. On
February 11, 2009, Gandy called Fratta to inform her that
Gandy and A.S. were in California. See Fratta L.R.
56(a)1 at 17 ¶ 76. Fratta provided relevant case
information on Gandy and A.S. to the California Child
Protection Services. See id. at 18 ¶ 77.
subsequently completed her investigation of both Gandy and
Shakir. See Fratta L.R. 56(a)1 at 18 ¶ 78, 19
¶ 83; Pl.'s L.R. 56(a)2 to Fratta at 39 ¶ 78,
40-41 ¶ 83. DCF initially substantiated the allegations
of physical neglect against Gandy, but reversed that finding
on appeal. See Fratta L.R. 56(a)1 at 18-19
¶¶ 79-82; Pl.'s L.R. 56(a)2 to Fratta at 39-40
¶¶ 78-82. DCF substantiated the allegations of
sexual abuse of T.G. against Shakir and upheld the
substantiation on appeal. See Fratta L.R. 56(a)1 at
19-20 ¶¶ 83-87; Pl.'s L.R. 56(a)2 to Fratta at
40-41 ¶¶ 83-87.
February 25, 2009, Shakir attended a hearing before the Derby
Probate Court regarding an application that he had previously
filed on December 31, 2008, for temporary custody of A.S. and
to remove Gandy as A.S.'s guardian. See Fratta
L.R. 56(a)1 at 20 ¶ 88; Pl.'s L.R. 56(a)2 to Fratta
at 41 ¶ 88. The probate judge did not grant
Stankye's application. See Stankye L.R. 56(a)1
at 10 ¶¶ 43-44; Pl.'s L.R. 56(a)2 to Stankye at
13 ¶ 43. Fratta alleges that the probate judge explained
to Shakir that, because there were no court orders or written
custody agreements between Shakir and Gandy, Shakir and Gandy
each had equal legal rights to A.S. See Fratta L.R.
56(a)1 at 20 ¶ 94. Shakir disputes that this occurred.
See Pl.'s L.R. 56(a)2 to Fratta at 42 ¶ 94.
Shakir alleges instead that his attorney told him that the
probate judge stated that A.S. should not have been taken out
of Connecticut without a court order and should be returned
immediately to the state. See id.; Pl.'s L.R.
56(a)2 to Stankye at 13 ¶ 43.
raises eight arguments in support of his Motion for Summary
Judgment. He contends: (1) that Shakir's request for
declaratory relief is barred by the Eleventh Amendment; (2)
that Shakir has no standing to assert a claim of unlawful
seizure on behalf of his son; (3) that Shakir fails to raise
a genuine issue of material fact that the entry into his
residence was an unlawful search; (4) that Shakir fails to
raise a genuine issue of material fact that his procedural
due process rights were violated; (5) that Shakir fails to
raise a genuine issue of material fact that his substantive
due process rights were violated; (6) that the Eighth
Amendment does not apply to Stankye's conduct, which
occurred prior to Shakir's conviction for any crime; (7)
that Shakir fails to raise a genuine issue of material fact
that Stankye participated in a conspiracy to deprive him of
his rights; and (8) that he is entitled to qualified immunity
as to Shakir's Fourth and Fourteenth Amendment
claims. See Stankye Mem. in Supp.
and Marotta separately assert five arguments in support of
their Motion. They contend: (1) that Shakir fails to raise a
genuine issue of material fact that Marotta was personally
involved in any violation of Shakir's constitutional
rights; (2) that Shakir fails to raise a genuine issue of
material fact that his procedural due process rights were
violated; (3) that Shakir fails to raise a genuine issue of
material fact that his substantive due process rights were
violated; (4) that Shakir fails to raise a genuine issue of
material fact that Fratta and Marotta participated in a
conspiracy to deprive him of his rights; and (5) that they
are entitled to qualified immunity. See Memorandum
in Support of Fratta and Marott's MFSJ (“Fratta and
Marotta Mem. in Supp.”) (Doc. No. 198-1). Because of
the overlap in the arguments in the two Motions, the court
addresses them together.
Personal Involvement (Marotta)
Marotta argues that Shakir has not presented evidence raising
a genuine issue of material fact as to her personal
involvement in any violation of his due process rights.
See Fratta Mem. in Supp. at 33-35.
is well settled in this Circuit that personal involvement of
defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.”
See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d
Cir. 1994)). In the case of supervisory defendants, the
Second Circuit has held that personal involvement can be
established by showing that:
(1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being
informed of the violation through a report or appeal, failed
to remedy the wrong, (3) the defendant created a policy or
custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, (4) the
defendant was grossly negligent in supervising subordinates
who committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference to the rights of [the
plaintiffs] by failing to act on information indicating that
unconstitutional acts were occurring.
Id. A supervisory official cannot be held liable
solely “on the basis of respondeat superior or
simply because he is atop the . . . hierarchy.”
Lewis v. Cunningham, 483 Fed. ...