Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shakir v. Derby Police Department

United States District Court, D. Connecticut

January 5, 2018

ANWAR SHAKIR, SR., Plaintiff,
v.
DERBY POLICE DEPARTMENT, ET AL., Defendants.

          RULING ON DEFENDANTS FRATTA AND MAROTTA'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 198) AND DEFENDANT STANKYE'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 201)

          Janet C. Hall, United States District Judge

         TABLE OF CONTENTS

         I. INTRODUCTION ...................................................................................................... 2

         II. PROCEDURAL BACKGROUND .............................................................................. 2

         III. STANDARD OF REVIEW ......................................................................................... 4

         IV. FACTS ...................................................................................................................... 5

         V. DISCUSSION ......................................................................................................... 15

         A. Personal Involvement (Marotta) ....................................................................... 16

         B. Procedural Due Process (Fratta and Stankye) ................................................ 23

         1. Applicable Law .............................................................................................. 24

         2. Removal of A.S. from Shakir's Home ............................................................ 27

         3. Interview of A.S. at Derby Police Department ............................................... 32

         4. Release of A.S. to Gandy ............................................................................. 35

         5. Conspiracy .................................................................................................... 39

         C. Substantive Due Process (Fratta and Stankye) ............................................... 45

         D. Fourth Amendment Unlawful Seizure (Stankye) .............................................. 46

         E. Fourth Amendment Unlawful Search (Stankye) ............................................... 48

         F. Eighth Amendment Conditions of Confinement (Stankye) ............................... 57

         G. Declaratory Relief (Stankye) ............................................................................ 68

         VI. CONCLUSION ........................................................................................................ 72

         I. INTRODUCTION

         The 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).

         Before 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.

         II. PROCEDURAL BACKGROUND

         On 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.

         On 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.

         On 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.

         On May 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).

         III. STANDARD OF REVIEW

         A 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).

         In 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 to believe.

Rogoz v. City of Hartford, 796 F.3d 236, 245-46 (2d Cir. 2015) (internal quotation marks, citation, and emphasis omitted).

         Where 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).

         IV. FACTS[1]

         At all relevant times, Stankye was employed by the Derby Police Department, [2]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.

         In 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 ¶ 4.

         On 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.[3] 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.

         After 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.

         A.S.'s 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.

         On 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.

         Stankye 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.

         On 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.

         Stankye, 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.

         After 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 ¶ 27.

         Once in 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.

         Shakir 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.

         It is 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.

         Stankye 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.

         While 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.

         The 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.

         Later 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 ¶¶ 65-66.

         Shakir 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.

         Shakir 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.

         Fratta 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.[4] 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.[5]

         On 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.

         V. DISCUSSION

         Stankye 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.[6] See Stankye Mem. in Supp.

         Fratta 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.

         A. Personal Involvement (Marotta)

         First, 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.

         “It 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.