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Ortolaza v. Capitol Region Education Council

United States District Court, D. Connecticut

May 23, 2019

THAIS ORTOLAZA ex rel E., a minor child, Plaintiff,



         This 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 Hartford, Connecticut.

         The 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 Ruling.


         The 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.

         Plaintiff's 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”).

         The 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.

         The May 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.

         Footnote 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.” Id.

         Plaintiff 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.

         Plaintiff 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.

         The 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.

         CREC's renewed motion to dismiss has been fully briefed again. This Ruling resolves the motion.


         I begin 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.

         The 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.

         The email was not signed. Id. ¶ 61. The body of the email read:

im fed up with the mind numbing shit thsis [sic] school puts me through
its hell
tomorrow im bringing my dads sawed off shotgun and pistol and ending this shit
good night
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.

         The 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 communication.

         During 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.[1] 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.

         “McCain, 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.

         HPD 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. ¶ 220.

         The 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.

         By the 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. ¶ 223).

         In 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.

         Somewhat 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.

         Moreover, 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, which recites:

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.

         It is 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), [2] and give those statements such effect upon the relevant issues as the circumstances require.[3]


         I must 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 pleading.

         Plaintiff 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 this:

         The 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.

         The 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.


         One 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.

         The 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 ยง 1983 if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an ...

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