United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING MOTION TO AMEND
COMPLAINT [DKT. 78]
Vanessa L. Bryant United States District Judge.
before the Court is Plaintiff's motion for leave to amend
her Complaint to replead her equal protection claim against
Defendants Colangelo and Gompper in their personal capacity.
On January 22, 2019, the Court granted in part and denied in
part the Town Defendants' Motion to Dismiss
Plaintiff's claims against them. See [Dkt. 66 (Mem.
of Decision on Mot. to Dismiss)]. The Court dismissed
Plaintiff's equal protection claims, holding that
Plaintiff had failed to plead similarly situated but
differently treated comparators as required for the selective
enforcement equal protection claim put forth. Plaintiff now
seeks to replead an equal protection claim alleging that
Defendants Colangelo and Gompper refused to properly
investigate and prosecute her sexual assault complaint
because she is a woman. For the following reasons, the motion
filed her Complaint in Connecticut Superior Court on April
10, 2018. Defendants Town of Canton, John Colangelo, Adam
Gompper, Mark Penney, and Christopher Arciero (the
“Town Defendants”) removed the case to the
District Court for the District of Connect on April 20, 2018.
See [Dkt. 1 (Notice of Removal and Compl.)]. In
their Joint Rule 26(f) Report, the parties agreed
Plaintiff's deadline to amend the complaint was July 16,
2018. See [Dkt. 25 (Joint Rule 26(f) Report) at 5].
Complaint alleged that Defendant Calvin Nodine, the owner of
Nodine's Restaurant where Plaintiff worked, sexually
assaulted her, including forcing her to perform oral sex on
him on May 16, 2017. The Complaint further alleged that, when
Plaintiff reported the assault to the Canton Police, they
disbelieved her claim, failed to adequately investigate the
allegations, and ultimately arrested her for making a false
statement pursuant to a warrant issued on the basis of a
false and incomplete warrant affidavit. Plaintiff brought
claims for false arrest, malicious prosecution, denial of
equal protection, denial of substantive due process,
intentional infliction of emotional distress, and negligent
infliction of emotional distress against the Town Defendants.
24, 2018, the Town Defendants moved to dismiss all claims
against them. See [Dkt. 34 (Mot. to Dismiss)]. The
Court upheld Plaintiff's § 1983 false arrest and
malicious prosecution claims against Defendants Colangelo and
Gompper in their personal capacity, as well as the state and
common law false arrest, malicious prosecution, and
intentional infliction of emotional distress claims. [Dkt.
66]. The Court dismissed Plaintiff's claims for equal
protection and substantive due process against the Town
Defendants in their individual and official capacities. In
the decision, the Court granted Plaintiff leave to replead
her Monell claims against the Town Defendants in
their official capacities to the extent Plaintiff could
allege sufficient factual support.
now seeks leave to include a renewed equal protection claim
against Defendants Colangelo and Gompper in their personal
capacity. See [Dkt. (Mot. to Amend Compl.)].
Rule of Civil Procedure 15(a)(2) provides that the court
should freely give leave to amend pleadings when justice so
requires. The Supreme Court has emphasized that this mandate
is to be heeded. Foman v. Davis, 371 U.S. 178, 182
(1962). “In the absence of any apparent or declared
reason-such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.-the leave sought should, as the
rules require, be ‘freely given.'”
Id. The grant or denial of leave to amend is within
the discretion of the district court. Id. Thus,
“[t]he court plainly has discretion . . . to deny leave
to amend where the motion is made after an inordinate delay,
no satisfactory explanation is offered for the delay, and the
amendment would prejudice the defendant.” Cresswell
v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir.
court should determine whether the proposed amendment will be
“futile in effect” and, if so, amendment will not
be allowed. See Rucciuti v. New York City Transit
Authority, 941 F.2d 119, 123 (2d Cir. 1991).
“[L]eave to amend will be denied as futile only if the
proposed new claim cannot withstand a 12(b)(6) motion to
dismiss.” Milanese v. Rust-Oleum Corp., 244
F.3d 104, 110 (2d Cir. 2001) (citing Forman v.
Davis, 371 U.S. 178, 182 (1962)). A party opposing a
motion to amend has the burden of proving that such amendment
would be futile. Sokolski v. Trans Union Corp., 178
F.R.D. 393, 396097 (E.D.N.Y. 1998).
Town Defendants object to Plaintiff's proposed Count
Eighteen alleging an equal protection claim on a theory of
discriminatory denial of police protective services.
See [Dkt. 81 (Opp'n Mot. Amend Compl.) at 1].
Specifically, the Town Defendants argue that amendment would
be futile and highly prejudicial to them.
Amendment Is Not Futile
contends that the proposed amended complaint alleges
sufficient facts to support a claim for discriminatory denial
of police protective services. See [Dkt. 79 at 3-4].
To state such a claim, Plaintiff need not plead disparate
treatment of similarly situated individuals. Pyke v.
Cuomo, 258 F.3d 107, 108-09 (2d Cir. 2001). Rather, a
plaintiff alleging that a facially neutral law or policy has
been applied in an unlawfully discriminatory manner must
allege facts supporting a plausible inference that
discriminatory intent was a motivating factor behind the
denial of police protection. Id. at 110; White
v. City of New York, 206 F.Supp.3d 920, 931-32 (S.D.N.Y.
2016). Plaintiffs may allege discriminatory intent via
evidence of animus on the part of individual officers,
including pointing to demeanor and specific statements.
See White, 206 F.Supp.3d at 932.
proposed amended complaint alleges that Connecticut State
Laws and Canton Police Department Procedures require the
police to provide protective services in a fair and impartial
manner. See [Dkt. 78-2 (Proposed Am. Compl.) at
¶¶ 179-82]. It further alleges that Defendants
Colangelo and Gompper denied Plaintiff these services based
on their discriminatory animus towards Plaintiff on account
of her sex. Id. At ¶ 177. Plaintiff alleges
that specific statements made by Defendants Colangelo and
Gompper in reports and during interviews as well as their
demeanor evidence their discriminatory animus. Id.
at ¶¶ 178-83. For example, Plaintiff alleges that,
after telling Defendant Gompper that Defendant Nodine had
pulled her into the men's restroom, exposed himself to
her, and told her to perform oral sex on him (at which point
she was able to run away), Defendant Gompper said he believed
hers was a “sexual harassment” complaint and
merely a civil matter. Plaintiff alleges that Defendant
Gompper's report of the interview with Plaintiff mocked
her story by putting certain phrases in
quotations-“VICTIM gave Calvin Nodine ‘oral';
worked her ‘butt off'; she wasn't
‘getting sex' at home; he was ‘hard'
again.” Id. at ¶ 178. Plaintiff alleges
that Defendant Colangelo was cold and dismissive of Plaintiff
during her interview but friendly and jocular with Defendant
Nodine during his interview-asking “what's this
girl's deal, ” recharacterizing Plaintiff's
allegations of sexual assault and harassment against
Defendant Nodine as “flirting, ” and showing his
disdain for the case by saying he knew Defendant Nodine was
not a “menace to society” and that there was no
need to “track down every lead.” Id.
Even further, Plaintiff alleges that, ...