United States District Court, D. Connecticut
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 ...