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Chase v. Nodine's Smokehouse, Inc.

United States District Court, D. Connecticut

April 3, 2019

NICOLE CHASE, Plaintiff,
v.
NODINE'S SMOKEHOUSE, INC., CALVIN NODINE, TOWN OF CANTON, JOHN COLANGELO, ADAM GOMPPER, MARK J. PENNEY, CHRISTOPHER ARCIERO, Defendants.

          MEMORANDUM OF DECISION GRANTING MOTION TO AMEND COMPLAINT [DKT. 78]

          Hon. Vanessa L. Bryant United States District Judge.

         Now 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.[1] 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 is granted.

         Background

         Plaintiff 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].

         Plaintiff's 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.

         On July 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.

         Plaintiff 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.)].

         Discussion

         Federal 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. 1990).

         The 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).

         The 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.

         A. Amendment Is Not Futile

         Plaintiff 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.

         Plaintiff's 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, ...


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