United States District Court, D. Connecticut
RULING ON CREC DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S AMENDED COMPLAINT
CHARLES S. HAIGHT, JR., SENIOR UNITED STATES DISTRICT JUDGE
action alleges violation of civil rights and seeks recovery
from several defendants pursuant to 42 U.S.C. § 1983.
Those federal claims are accompanied by state law tort
claims, asserted under supplemental jurisdiction, 28 U.S.C.
§ 1367. Plaintiff Thais Ortolaza sues as the mother and
on behalf of her minor child, E., who at the pertinent times
was a student at the Two Rivers Magnet High School
(“Two Rivers” or “the School”) in
case is before the Court on the motion of one of two groups
of Defendants to dismiss an Amended Complaint which Plaintiff
filed pursuant to leave granted by the Court in a prior
case arose when during the morning of November 19, 2015, E.
was removed by officers of the Hartford Police Department
(“HPD”) from a school bus carrying students to
Two Rivers. E. was arrested on a charge of sending a
threatening email to the School principal, detained for about
an hour, and then released, without further charge or action
against him. This action, filed by E.'s mother, followed.
initial complaint alleged claims against two groups of
Defendants. The first group consists of the Capitol Region
Education Council (“CREC”), the administrator of
Two Rivers, and three CREC officers or employees
(collectively, “the CREC Defendants.”). The
second group of Defendants consists of officers of varying
ranks in the Hartford Police Department (collectively,
“the Hartford Defendants”).
CREC Defendants moved to dismiss certain counts in the
complaint against them. The Hartford Defendants did not join
in that motion. The Court granted the CREC motion in an
opinion reported at 2018 WL 2100280 (D. Conn. May 7, 2018)
(“the May 7 Ruling”), familiarity with which is
assumed. The Court dismissed Plaintiff's federal §
1983 claims against the CREC Defendants without prejudice and
with leave to amend, and dismissed the state law claims
against those Defendants without prejudice, with the
provision that a particular state law claim could be
reinstated “if the Plaintiff files an amended complaint
which alleges a viable federal claim.” Id. at
*13. The May 7 Ruling dismissed Plaintiff's § 1983
claim against the CREC Defendants for the principal reason
that “the form and substance of communication between
private parties and the police pleaded by this complaint does
not suffice to make the private party a state
actor.” Id. at *10.
7 Ruling granted Plaintiff leave to file an amended complaint
because of the circumstances described in footnote 6, which
noted “a gap in the Complaint's factual account,
between McCain's first telephoned 911 call to the police
which did not identify a suspect, and police officers'
subsequent boarding of the school bus, searching for E. by
name.” Id. at *10, n.6. “The question
arises, ” the footnote continued, “whether
Plaintiff is in a position to allege additional facts in an
amended complaint which would state a viable § 1983
claim against a CREC Defendant.” Id.
6 collected a number of cases which consider liability
pursuant to § 1983 “when a defendant is a private
actor and not an arresting officer.” Id. Based
on those cases, a plaintiff must show that the private
defendant “instigated the arrest” by, for
example, “importuning the authorities to act”
with the intention that the plaintiff be confined.
Id. By contrast, where “private actors merely
furnished information leading to an arrest, liability does
not attach.” Id. Footnote 6 concluded by
saying: “One cannot presently tell whether the
Plaintiff at bar could, consistent with her obligations under
Fed.R.Civ.P. 11, allege facts in an amended complaint
sufficient to bring this case within the theory of those
cases. The present complaint does not do so.”
took advantage of this opportunity to amend her pleading by
filing an Amended Complaint [Doc. 53] whose allegations
expand upon a number of areas, the most pertinent for present
purposes being (1) pre-incident interactions between
Plaintiff, her son E., and CREC or School
administrators, and (2) communications
between CREC Defendants and Hartford police officers on
November 19, 2015, the date of E.'s arrest by the
Hartford Police Department.
argues that the allegations of the Amended Complaint cure the
deficiencies the Court identified in the May 7 Ruling, and
plead viable claims against the CREC Defendants as state
actors in respect of E.'s arrest.
CREC Defendants respond that the Amended Complaint is just as
deficient in that regard as the original complaint. These
Defendants move under Rule 12(b)(6) [Doc. 65] to dismiss the
Amended Complaint for failure to state a claim against them.
The Hartford Defendants continue to play no part in the CREC
Defendants' motion to dismiss.
renewed motion to dismiss has been fully briefed again. This
Ruling resolves the motion.
with the account Plaintiff gives in her Amended Complaint
(hereinafter “A.C.”) of the manner in which E.
came to be arrested by the Hartford police.
Amended Complaint alleges that during the evening of November
18, 2015, there was delivered to the official email address
of Defendant McCain, the School Principal, “a spoofed
email address from Italy with the subject line
‘reckoning.'” A.C. ¶ 59. That paragraph
further alleges that “e-mail spoofing is the forgery of
an e-mail header so that the message appears to have
originated from someone or somewhere other than the actual
source.” Id., ¶ 59 n. 1.
email was not signed. Id. ¶ 61. The body of the
im fed up with the mind numbing shit thsis [sic]
school puts me through
tomorrow im bringing my dads sawed off shotgun and pistol and
ending this shit
better make sure you get this before morning
Id. ¶ 60. McCain checked his office email and
read this message at about 6:00 a.m. on the morning of
November 19th. Id. ¶ 62.
Amended Complaint further alleges that “at 6:15 a.m. on
November 19” McCain forwarded the email to the CREC
email addresses of Defendant Nolan, the CREC Director of
Security, and Defendant Sullivan, the CREC Assistant
Superintendent for Operations. Id. ¶ 63.
“Between 6:00 a.m. and 6:20 a.m., ” McCain called
Sullivan to discuss the email. Id. ¶ 65. They
concluded that the email expressed a “legitimate
threat.” Id. ¶ 65. “McCain called
911 at 6:21 a.m. and informed the HPD 911 dispatcher of the
email and that McCain believed the threat it contained was
credible.” Id. ¶ 72. This was the CREC
Defendants' initial notification to the Hartford Police
Department (“HPD”) about the incident.
“Defendants McCain, Sullivan and Nolan were in
continuous communication with HPD from approximately 6:20
a.m. onward.” Id. ¶ 73. The succeeding
paragraphs of the Amended Complaint recount aspects of that
McCain's initial 911 call at 6:21 a.m., he did not tell
police whom he suspected had sent the email. Id.
¶ 72. “Before 7 a.m. on November 19, ”
McCain, Nolan and Sullivan “determined E. was a suspect
in the sending of the ‘reckoning' email, ” as
the result of certain circumstances which in the perception
of these CREC employees meant that E.'s “authorship
of the ‘reckoning' email was likely.”
Id. ¶ 92. E., who traveled from his home to Two
Rivers by school bus with other students, boarded the bus at
about 6:57 a.m. Id. ¶ 110. By this time, it
appears that the CREC Defendants had identified E. to the HPD
as the suspected author of the email, but they made no effort
to prevent E. from boarding the bus at that time.
Id. ¶ 111.
Sullivan and Nolan told the Hartford Police Department that
E. would be on the bus, ” id. ¶ 115, and
subsequently “directed the bus to the Greater Hartford
Academy of the Arts, another school about a block away from
the HPD, instead of having the bus go to Two Rivers, ”
id. ¶ 117. The bus “arrived at school
around 7:22 a.m.” Id. ¶ 116. The Amended
Complaint alleges that the CREC Defendants “knew and
understood” that HPD officers “would meet the
school bus at the other school with the intention of removing
E. from the school bus and detaining him and interrogating
him about the ‘reckoning' email, ”
id. ¶ 119, and further that they “knew
and intended” that police officers “would detain
and arrest E. in order to prevent E. from carrying out the
alleged violent threat contained in the ‘reckoning'
email, ” id. ¶ 120.
officers met the school bus and removed E. from the bus.
Id. ¶¶ 134, 135, 137. At that time, at
least one officer had his gun drawn and pointed at E.
Id. ¶ 138. They asked E. whether he had sent
the email, which he denied, and then searched E., and
discovered that he had no weapons or contraband on his person
or in his bag. Id. ¶¶ 143, 151, 153. The
officers then handcuffed E. and transported him in a police
cruiser to the Two Rivers school building. Id.
¶¶ 151, 154, 170. At the Two Rivers school
building, two Hartford police defendants interrogated E.
Id. ¶ 176. They were later joined by McCain,
who asked questions about the ‘reckoning' email.
Id. ¶¶ 188-190. E. was released shortly
after his parents arrived at the school, id. ¶
215, approximately 55 minutes after his arrest, id.
¶ 215. E. was never charged with sending the email, and
no further action was taken against him. Id. ¶
Amended Complaint also contains allegations which undertake
to explain why the CREC Defendants believed that E. was the
probable author of the “reckoning” email. It is
alleged that Plaintiff Thais Ortolaza and her son E.
“had been at Two Rivers on the evening of November 18,
2015 for a parent-teacher conference to discuss E. and his
academic progress.” Id. ¶ 48. According
to McCain, see infra, E. had previously discussed
with McCain his familiarity with firearms and association
with local gangs. The Amended Complaint states that at the
November 18 conference, Plaintiff was unhappy about a lack of
communication between the School and herself about the
disciplining of E., id. ¶ 54, and “after
the parent-teacher conference, ” E. was perceived to be
angry “because his mother publicly humiliated him,
” id. ¶ 58. Plaintiff and E. left the
School and presumably returned to their home. The unsigned
threatening email was delivered to McCain's office at
approximately 10:13 p.m. that evening. Id. ¶
59. When McCain, Nolan and Sullivan discussed the email
before 7 a.m. on the following morning of November 19, they
determined E. was a suspect in the sending of the
“reckoning” email because (A) of E's alleged
prior statements about weapons to Defendant McCain, (B) E.
allegedly felt angry after the parent teacher conference the
night before and (C) E. was the only student smart enough to
know what the word “reckoning” meant and thus his
authorship of the “reckoning” email was likely.
Id. ¶ 92. “By identifying E. to the
Hartford Police Department, Defendants McCain, Sullivan and
Nolan intended that E. be arrested and detained.”
Id. ¶ 95.
end of 2017, the parties had, in the vernacular,
“lawyered up.” Plaintiff filed her initial
complaint against the CREC Defendants and the Hartford
Defendants on November 9, 2017. By this time, E. had
withdrawn from Two Rivers School (which he never returned to
after the November 19, 2015 incident, id. ¶
addition to the allegations contained in the paragraphs
quoted or cited supra, the Amended Complaint also
refers to a letter dated December 18, 2017 (over two
years after the incident in suit), which McCain's counsel
sent to Plaintiff's attorney of record “regarding
the incidents at issue in this litigation.”
Id. ¶ 36. The Amended Complaint includes
several assertions which Plaintiff's attorney claims that
counsel for McCain made in that letter. Specifically, the
Amended Complaint alleges the December 18 letter contained
the following statements by McCain's counsel:
• McCain had met with E. about four times for
disciplinary issues, where “E. would freely and openly
discuss firearms and his affiliation with local gangs.”
Id. ¶ 36. McCain recalled this information
because E. was “the only student to discuss openly his
possession and knowledge of firearms as well as his
affiliation with known gangs.” Id. ¶ 37.
McCain could not determine “if this was simply a new
student trying to ‘impress' others or if in fact
E's statements were true.” Id. ¶ 38.
• “The identification of E. was made through
Hartford Police questioning of Mr. McCain.”
Id. ¶ 82. Specifically, “[t]he police
pressed Mr. McCain to name anyone who may have access to
firearms, Mr. McCain named E.” Id. ¶ 83.
• “[T]he Police persisted in asking Mr. McCain to
identify any student whom he thought could have access to
firearms.” Id. ¶ 84. As a result of the
alleged prior statements by E. about his access to firearms,
“McCain identified E. as a student who may have access
to firearms.” Id. ¶ 85.
• McCain, Nolan and Sullivan opined that “E. wrote
the threatening email directly following the school meeting
out of anger over what transpired at the meeting, only hours
prior to the subject email was sent” [sic].
Id. ¶ 86.
surprisingly, given the quotations from counsel's letter
in the preceding paragraphs of the Amended Complaint, the
A.C.'s final reference to that letter reads as follows:
The December 18, 2017 letter unequivocally stated
“At no time did Mr. McCain or any CREC employee
identify E. as the student who wrote the threatening
email.” (emphasis in original).
Id. ¶ 87. The emphasized disclaimer seems
somewhat at odds with other explicit or implicit assertions
in the December 18, 2017 letter from McCain's attorney,
to the effect that McCain identified E. to the Hartford
police as the likely author of the email.
the Amended Complaint quotes a police report about the
incident, dated November 19, 2015, the day of the arrest,
signed by Detective Trigila, one of the Hartford Defendants,
McCain informed CREC Director of Security Chris Nolan that he
believed the threat was made by student [E.], who has been
having disciplinary issues in the school recently and may
have had a motive to make the threat.
Id. ¶ 88. This police report does not state
explicitly that McCain informed the HPD (as well as Nolan) of
his belief that E. was the perpetrator. However, it is
plausible to conclude that McCain did so. The police,
responding to communications by the School administrators,
went directly to the school bus, singled out only E. for
preliminary questioning, handcuffed E., and removed him from
the scene in a police vehicle.
not clear what effect, if any, this reviewing Court should
give to the quotations Plaintiff selects from a letter
written by Defendant McCain's attorney two years after
the incident in suit. The question presented by this action,
brought under the aegis of § 1983, is whether
Plaintiff's Amended Complaint alleges a viable claim that
a CREC Defendant violated the United States Constitution as a
state actor. To achieve that purpose, the complaint
“must contain sufficient factual matter, accepted as
true, to state a claim that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). While I must assume the veracity of
“well-pleaded factual allegations, ”
Iqbal, 556 U.S. at 679, “that presumption of
truth does not extend to legal conclusions, ”
id. at 678. The letter of an adverse party's
attorney, an exercise in advocacy two years after the event,
is an unlikely place to look for well-pleaded factual
allegations in support of a claim the author-attorney and his
client McCain oppose. On the other hand, I accept that
McCain's attorney wrote the December 18, 2017 letter and
the Amended Complaint quotes it accurately. Trial counsel is
authorized to speak for and bind his client in litigation. In
evaluating Plaintiff's § 1983 claim against McCain,
a party, I will regard the letter of McCain's counsel as
reciting admissible statements by McCain, see Fed.
R. Evid. 801(d)(2),  and give those statements such effect upon
the relevant issues as the circumstances
now determine whether Plaintiff's proposed Amended
Complaint “states a plausible claim for relief”
against any CREC Defendant in an action where the Court's
subject matter jurisdiction depends upon Plaintiff's
invocation of 42 U.S.C. § 1983. That is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
(quoting Iqbal, 556 U.S. at 679) (internal quotation
marks omitted). Under governing law, Plaintiff's claim
turns upon whether her Amended Complaint alleges facts
sufficient to show that the CREC Defendants should be
regarded as “state actors” with respect to the
specific claims for relief asserted this Plaintiff in her
contends that the CREC Defendants were state actors. Obedient
to higher authority, I must draw on common sense in
comprehending Plaintiff's basis for that contention. The
prolix allegations of the Amended Complaint are less than a
model of clarity in explaining what these School
administrators did in the events leading up to E's arrest
by the Hartford police. However, armed by such judicial
experience and common sense as I have, it seems to me that
the core of what happened in this case, derived from the
well-pleaded factual allegations in the Amended Complaint, is
anonymous “reckoning” email McCain read at his
office at 6:00 a.m. on November 19. 2015, clearly threatened
deadly violence at the Two Rivers School. Given the tragic
shootings at schools in recent years, the prompt action of
McCain and his CREC colleagues in notifying the Hartford
police about the threat was an exercise in common sense. The
police's common-sense response was to ask the school
administrators who they thought the author of the threat
might be. The police had no way of knowing or determining
that identity with the expediency necessary for such a
threat, but the author identified himself as a student.
Common sense suggested to the police that McCain, the School
principal, might know or suspect who the author could be. In
point of fact, McCain, after discussing the question with his
CREC colleagues, told the police that E. was familiar with
firearms, would be on the bus heading for the School, and was
suspected of having written the email. The HPD acted upon
that information by removing E. from the bus and briefly
detaining and questioning him, before releasing him without
taking further action.
conduct of McCain and the other CREC Defendants would cast
them in the role of “state actors” in E's
arrest if they were acting “under color of” state
law, as that phrase is used in (and required by) § 1983.
Whether that showing is made by the expanded factual account
set forth in the Amended Complaint requires a further
consideration of case law.
must perforce begin with the Supreme Court's decision in
Adickes v. S.H. Kress and Co., 398 U.S. 144 (1970),
apparently the initial consideration by the Court of a
private party's constitutional liability for an arrest
executed by police. The incident in suit took place in
Hattiesburg, Mississippi in August 1964. Id. at 146.
Kress, the defendant store and a private party, refused to
serve lunch at its Hattiesburg restaurant facilities to
plaintiff Sandra Adickes, a white school teacher from New
York who was accompanied by six African-American local summer
school students (who were offered service). Id. at
146-47. Upon Adickes's departure from the store, she was
arrested by the Hattiesburg police on a charge of vagrancy.
Id. at 146. Adickes filed a two-count complaint
against Kress under § 1983 alleging
“discrimination based on race in violation of
petitioner's equal protection rights.” Id.
at 150 (footnote omitted). Adickes's second count alleged
that “both the refusal of service and her subsequent
arrest were the product of a conspiracy between Kress and the
Hattiesburg police.” Id. at 147. The district
court dismissed this count on summary judgment, and the
Second Circuit affirmed. Id. at 148. The Supreme
Court reversed and remanded the case for trial. Id.
Court's opinion in Adickes undertakes to
instruct the lower courts on the nature and limitations of a
§ 1983 civil rights action against a private party in
the context of a police arrest. It is profitable to quote
Justice Harlan's opinion at some length:
Few principles of law are more firmly stitched into our
constitutional fabric than the proposition that a State must
not discriminate against a person because of his race or the
race of his companions, or in any way act to compel or
encourage racial segregation. Although this is a lawsuit
against a private party, not the State or one of its
officials, our cases make clear that petitioner will have
made out a violation of her Fourteenth Amendment rights and
will be entitled to relief under § 1983 if she can prove
that a Kress employee, in the course of employment, and a
Hattiesburg policeman somehow reached an ...