Belton v. Wydra

          INITIAL REVIEW ORDER

          Kari A. Dooley United States District Judge

         Preliminary Statement

         The plaintiff Daryl Belton (“Belton”), currently incarcerated at Corrigan-Radgowski Correctional Institution, filed a complaint under 42 U.S.C. § 1983 in which he brings claims arising out of the October 14, 2016 search of his residence, seizure of items of property from his residence and his arrest and prosecution by members of the Hamden Police Department, a special agent of the Federal Bureau of Investigation (“FBI”), officers in the West Haven Police Department and an Officer in the New Haven Police Department. Because Belton has named a special agent of the FBI as a defendant, the court liberally construes the complaint as also having been filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). For the reasons set forth below, the complaint is dismissed in part.

         Included in the caption on page one of the complaint are the following defendants: Lieutenant Timothy Wydra (“Wydra”), Sergeant John Sullivan (“Sullivan”), DC Bo Kicak (“Kicak”), Detective Jomo Crawford (“Crawford”), Sergeant Eric Goclowski (“Goclowski”), Detective Raymond Quinn (“Quinn”), Officer Kevin Hall (“Hall”), Task Force Officer Mastropetre (Mastropetre”), Officer Eric Hallstrom (“Hallstrom”), Officer Michael Mellon (“Mellon”), Officer Mark Sheppard, (“Sheppard”) Lieutenant Gabriel Lupo (“Lupo”), Officer Matthew Baruto (“Baruto”), Officer Robert Mansfield (“Mansfield”), Officer Enrique Rivera-Rodriguez (“Rivera-Rodriguez”), Task Force Officer Mark Vere (“Vere”), the Hamden Police Department, FBI Safe Streets Task Force Member and Hamden Police Officer Dennis Ryan (“Ryan”) and FBI Special Agent Anthony Duback (“Duback”). In his description of defendants on pages five and six of the complaint, Belton also lists Task Force Officer Mark DiaMico (“DiaMico”), the FBI, Hamden Police Department's Special Weapons and Tactics (“SWAT”) Unit, Hamden Police Department's Emergency Services Unit and Hamden Police Department's Street Interdiction Unit. Although these four defendants are not listed in the caption of the complaint as required by Rule 10(a), Fed. R. Civ. P., the court will consider the allegations against them.

         Standard of Review

         Pursuant to 28 U.S.C. § 1915A(b), the court must review prisoner civil complaints against governmental actors and “dismiss ... any portion of [a] complaint [that] is frivolous, malicious, or fails to state a claim upon which relief may be granted, ” or that “seeks monetary relief from a defendant who is immune from such relief.” Id. Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         Although detailed allegations are not required, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when a 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) (internal quotation marks and citations omitted). A complaint that includes only “‘labels and conclusions,' ‘a formulaic recitation of the elements of a cause of action' or ‘naked assertion[s]' devoid of ‘further factual enhancement, '” does not meet the facial plausibility standard. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Although courts still have an obligation to interpret “a pro se complaint liberally, ” the complaint must include sufficient factual allegations to meet the standard of facial plausibility. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).

         Allegations

         The following allegations are set forth in the complaint and its exhibits. See Compl., ECF No. 1, Exs. A-B & 2-3, ECF Nos. 1-1 to 1-4. On October 13, 2016, Duback and Ryan submitted an affidavit in support of an application for a warrant to search and seize firearms, ammunition, firearm related evidence, a piece of mail to show proof of residence and narcotics located at 28 Dix Street, first floor, in Hamden, Connecticut, to a judge in the Connecticut Superior Court for the Judicial District of New Haven. See Ex. 3 at 2-9, ECF No. 1-4. Superior Court Judge Anthony Avallone signed the search warrant later that day. See Id. at 8.

         On October 14, 2016, at approximately 5:50 a.m., Wydra knocked down the door to Belton's residence, located at 28 Dix Street in Hamden, Connecticut, with a battering ram. See Compl. at 9 ¶¶ 1, 3; at 15 ¶ 2. Wydra and other defendants then entered Belton's residence dressed in tactical gear and with shields and guns drawn. See Id. at 9 ¶ 4. Once inside the residence, the defendants screamed and threatened Belton, searched and seized items of his property and arrested Belton. See Id. ¶¶ 2, 4. Quinn entered Belton's home with his gun and a shield “ready for war, screaming & threatening” Belton. See Id. at 18.

         During the search of the residence, Lupo, Vere and DiaMico observed Belton break a porch window and throw a firearm out the window. See Ex. 2 at 3, ECF No. 1-3. The gun landed on the ground approximately twelve feet from the window. See Id. The gun was loaded with six rounds of ammunition. See Id. at 4. Mansfield found fourteen rounds of ammunition in a closet of one of the bedrooms of the residence. See Id. at 4-5. Duback found several bundles of heroin on the ground outside of the residence directly below the broken window. See Id. at 4.

         Sheppard took Belton down to the ground at gun point. See Compl. at 10 ¶ 5. Rivera-Rodriguez restrained Belton by handcuffing him and transported him to the Hamden Police Department. See Id. ¶ 9; Ex. 2 at 5, ECF No. 1-3. Vere seized evidence during the search of Belton's residence and photographed Belton, his girlfriend and his residence. See Compl. at 18. Vere later made those photographs available to the press and made them part of police files. See id.

         After Belton arrived at the police station, an officer processed him. See Ex. 2 at 5, ECF No. 1-3. Belton was charged with two counts of criminal possession of a firearm, one count of possession of narcotics with intent to sell, one count of illegal manufacture, distribution, sale, prescription or administration by a non-drug-dependent person, and one count of interfering with a search warrant. See Id. at 2. Lupo set Belton's bond at $100, 000.00. See Id. at 5. Three days later, at Belton's arraignment, a judge increased the amount of the bond to $200, 000.00. See Compl. at 11 (¶ 12).

         On August 3, 2017, in State v. Belton, No. CR16-0289351, Judge Alander granted Belton's motion to suppress the evidence seized during the search of Belton's residence. See Id. at 11 ¶¶ 14-15; Ex. B at 2-9, ECF No. 1-2. Belton alleges that Judge Alander subsequently dismissed all charges against him with prejudice. See Id. at 11 ¶ 14. State of Connecticut Department of Correction records reflect Belton is currently serving a sentence of four years and six months, imposed by a judge on September 6, 2017, pursuant to a plea of guilty to violating a protective order on March 23, 2016.^[1]

         Belton sues defendant Hamden Police Department in its official capacity and the other defendants in their individual and official capacities. See Id. at 2-6. For relief, he seeks compensatory and punitive damages.^[2] See Id. at 10.

         Discussion

         Belton asserts that the defendants violated his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, his rights under Article First, §§ 7, 8 and 9 of the Connecticut Constitution and his rights under Connecticut General Statutes §§ 54-33a and 54-33f. He also contends that defendants violated his rights to be free from false arrest, false imprisonment, unlawful restraint, malicious prosecution, wrongful incarceration, unjustified criminal prosecution, excessive force, excessive bond, unlawful entry, illegal search, illegal seizure and police misconduct, deprived him of due process, tampered with and fabricated evidence, prepared a “false affidavit of probable cause” and engaged in conduct that constituted libel, defamation and intentional infliction of emotional distress. See Compl. at 12.^[3]

         Hamden Police Department and Units

         Belton names the Hamden Police Department as well as its SWAT Unit, its Emergency Services Unit and its Street Interdiction Unit as defendants. A municipal police department is not an independent legal entity and is not subject to suit under section 1983. See Rose v. City of Waterbury, Civil Action No. 3:12cv291(VLB), 2013 WL 1187049, at *9 (D. Conn. Mar. 21, 2013) (noting that courts within Connecticut have determined that state statutes do not include “provision[s] establishing municipal departments, including police departments, as legal entities separate and apart from the municipality they serve, or providing that they have the capacity to sue or be sued . . . it is the municipality itself which possesses the capacity to sue and be sued”) (internal quotation marks and citation omitted). Furthermore, a police department is not a person amenable to suit under 42 U.S.C. § 1983. See Nicholson v. Lenczewski, 356 F.Supp.2d 157, 164 (D. Conn. 2005) (collecting cases). Thus, any claims against the Hamden Police Department, the Hamden Police SWAT Unit, Hamden Police Emergency Service Unit and Hamden Police Street Interdiction Unit are dismissed pursuant to 28 U.S.C. § 1915A(b)(1).

         Official Capacity Claims - Municipal Defendants

         Belton sues the municipal defendants in their individual and official capacities for monetary damages for violations of his federal Constitutional rights. In Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978), the Supreme Court set forth the test for municipal liability. To establish municipal liability for the allegedly unconstitutional actions of a municipal employee, the plaintiff must “plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (citation omitted). A municipality cannot be held liable under 42 U.S.C. § 1983 solely for the acts of its employees. See Monell, 436 U.S. at 694-95. Plaintiff must demonstrate “a direct causal link between a municipal policy or custom, and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). Any claim against a municipal official or employee in his official capacity is considered to be a claim against the municipality. See Hafer v. Melo, 502 U.S. 21, 25 (1991).

         Belton has not described any conduct on the part of the municipal defendants that is attributable to a municipal custom, practice or policy which resulted in the deprivation of his constitutional rights. The incident that Belton describes regarding the search of his residence, seizure of property and his arrest is an isolated occurrence. See Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”); DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (“a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy”) (internal quotation marks and citation omitted).

         Accordingly, the claims against Wydra, Sullivan, Kicak, Crawford, Goclowski, Quinn, Hall, Mastropetre, Hallstrom, Mellon, Sheppard, Lupo, Baruto, Mansfield, Rivera-Rodriguez, Vere, DiaMico and Ryan in their official capacities for monetary damages for violations of his federal Constitutional rights are dismissed. See 28 U.S.C. § 1915A(b)(1).

         Official Capacity Claims - Federal Defendants Duback and FBI

         In Bivens, the Supreme Court held that federal officials may be sued for damages in their individual capacities for the violations of a person's constitutional rights. Id. at 397. Thus, a Bivens action is the nonstatutory federal counterpart of a civil rights action pursuant to 42 U.S.C. § 1983. See Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981).

         A Bivens claim may not, however, be brought against the United States or its agencies or a federal official in his official capacity for federal Constitutional violations. See FDIC v. Meyer, 510 U.S. 471, 484-85 (1994) (declining to extend Bivens to federal agencies); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 509-10 (1994) (Bivens action must be brought against federal official in his or her individual capacity only). The doctrine of sovereign immunity protects the United States from suit absent consent. See Meyer, 510 U.S. at 475.

         Neither the FBI nor Dubak has waived sovereign immunity. Accordingly, all claims against the FBI and Duback in his official capacity for monetary damages are dismissed. See 28 U.S.C. § 1915A(b)(2). See also Robinson, 21 F.3d at 510 (“Because an action against a federal agency or federal officials in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity, unless such immunity is waived.” (citations omitted).

         Fifth and Sixth Amendments

          In the first paragraph of the “Statement of Case” on page nine of the complaint, Belton alleges that the defendants violated his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. He does not otherwise make reference to violations of his Fifth or Sixth Amendment rights in the remaining pages of the complaint. There are no allegations to support plausible claims under either the Fifth or Sixth Amendments against any defendant. Thus, the Fifth and Sixth Amendment claims are dismissed. See 28 U.S.C. § 1915A(b)(1).

         Fourth Amendment Entry, Search and Seizure Claims

         The Fourth Amendment protects the rights of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The protections of the Fourth Amendment are made applicable to the states by the Fourteenth Amendment. Under both federal law and Connecticut law, probable cause to search is demonstrated where the totality of circumstances indicates a “fair probability that contraband or evidence of a crime will be found in a particular place.” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983) and citing United States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 2004); State v. Vincent, 229 Conn. 164, 171, 640 A.2d 94, 98 (1994) (noting that valid search requires “probable cause to believe that the particular items to be seized are connected with criminal activity or will assist in a particular apprehension or conviction” and “that the items sought to be seized will be found in the place to be searched”).

         Belton contends that defendants violated his Fourth Amendment right to be free from an illegal search and seizure when they entered his residence, searched it and seized his property pursuant to a search warrant that lacked probable cause. If a search has been conducted pursuant to a court-authorized warrant, “great deference” is due to the issuing judge's determination that there is probable cause to search a premises. United States v. Leon, 468 U.S. 897, 914 (1984). Thus, “the issuance of a warrant by a neutral magistrate, which depends on a finding of probable cause, creates a presumption that it was objectively reasonable for the officers to believe that there was probable cause....” Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991); see also Walczyk, 496 F.3d at 155-56 (“Ordinarily, an arrest or search pursuant to a warrant issued by a neutral magistrate is presumed reasonable because such warrants may issue only upon a showing of probable cause.”)

         To overcome this presumption, a plaintiff must make a “'substantial preliminary showing' that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was ‘necessary to the finding of probable cause.'” Golino, 950 F.2d at 870 (quoting Franks v. Deleware, 438 U.S. 154, 155-56 (1978)). The standard in Franks also “applies in civil cases, like this one, brought pursuant to § 1983, in which a plaintiff seeks to challenge a warranted search as unlawful.” Calderon v. City of New York, 2015 WL 2079405, at *5 (S.D.N.Y. 2015); see also McColley v. Cty. of Rensselaer, 740 F.3d 817, 823 (2d Cir. 2014) (same). In addition, a plaintiff may overcome the presumption that a search executed pursuant to a warrant issued by a judge is based on probable cause by showing that the search warrant affidavit on its face “was so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” Malley v. Briggs, 475 U.S. 335, 344-45 (1986) (citing Leon, 468 U.S. at 923).

         Belton states that the arrest warrant affidavit contained a false statement regarding his prior conviction on a gun possession charge. He also claims that it was unreasonable for the defendants to believe that the affidavit contained sufficient information to support the existence of probable cause. See Briggs, 475 U.S. at 344-45 (“where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable, ... the shield of [qualified] immunity [will] be lost”). At this stage of the proceedings, Belton has plausibly alleged that defendants violated his right to be free from an unreasonable search and seizure under the Fourth Amendment when they entered and searched his residence and seized items from the residence pursuant to a warrant that lacked probable cause. This Fourth Amendment claim will proceed against all defendants.

         Fourth Amendment Seizure and Privacy Claims against Officer Vere

         Belton alleges that Vere photographed his residence, himself and his girlfriend and made the photographs part of police files and also made them available to the press.^[4] The Supreme Court has “expressly held that the Fourth Amendment governs not only the seizure of tangible items, ” but also extends to the seizure of intangibles. Katz v. United States, 389 U.S. 347, 353 (1967). Indeed, capturing a person's image through a recording device constitutes a seizure under the Fourth Amendment. See Caldarola v. County of Westchester, 343 F.3d 570, 574-75 (2d Cir. 2003) (citation omitted). Thus, Belton has plausibly alleged that the photographs of himself and his residence by Officer Vere constituted a seizure under the Fourth Amendment. See Warren v. Williams, No. CIV.A. 304CV537 (JCH, 2006 WL 860998, at *19 (D. Conn. Mar. 31, 2006) (denying officers' summary judgment motion as to claim that the head-shot photographs taken of plaintiffs during the search of motorcycle clubhouse constituted unreasonable seizures under the Fourth Amendment because the photographs were beyond the scope of the search warrant and lacked any other legitimate purpose.) Furthermore, if the photograph of Belton was, as alleged, disseminated to the press, Belton has plausibly alleged a Fourth Amendment right to privacy violation. See Caldarola, 343 F.3d at 574-75; Lauro v. Charles, 219 F.3d 202, 212 (2d Cir. 2000). Accordingly, these Fourth Amendment will proceed.

         Section 1983/Bivens - False Arrest and Imprisonment, Unlawful Restraint Claims

         False arrest and false imprisonment claims brought pursuant to section 1983 as violations of the Fourth Amendment's right “to be free from unreasonable seizures, are substantially the same as claims for false arrest . . . under state law.” Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003) (internal quotation marks and citations omitted). In a section 1983 action, the elements of claims for false arrest are controlled by state law. See Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004). District courts are encouraged to incorporate Section 1983 law into their assessment of Bivens claims because Bivens claims are very similar to claims brought under section 1983 “in terms of the interests being protected, the relief which may be granted, and the defenses which may be asserted.” Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995). Thus, in considering Belton's claims for false arrest and false imprisonment brought pursuant to Bivens against Duback and the municipal police defendants pursuant to section 1983, the court ...