Llewellyn v. Gasparino

          INITIAL REVIEW ORDER

          Kari A. Dooley, United States District Judge.

         On April 2, 2019, the Plaintiff, Kevin LLewellyn, a prisoner currently confined at the Cheshire Correctional Institution in Connecticut, brought a civil action pro se under 42 U.S.C. § 1983 against four Stamford police officers, Richard Gasparino, Officer Bloomberg, Officer Jentz, and John Doe, stemming from his arrest on April 2, 2016. The Plaintiff is suing the Defendants for false arrest and unlawful search, in violation of the Fourth Amendment. He seeks damages and declaratory relief. On May 21, 2019, Magistrate Judge William I. Garfinkel granted the Plaintiff's motion to proceed in forma pauperis. See Order No. 10. For the following reasons, the Plaintiff's complaint is dismissed in part.

         Standard of Review

         Under 28 U.S.C. § 1915A, the Court must review prisoner civil complaints and dismiss any portion of the complaint that is frivolous or malicious, that 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. Although detailed allegations are not required, the complaint must include sufficient facts to afford the Defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a right to relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic, 550 U.S. at 570. Nevertheless, it is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).

         Allegations

         On April 2, 2016, the Plaintiff was walking down Spurce Street in Stamford towards his apartment when he heard a noise coming from behind him. When he looked back, he saw a police cruiser drive up onto the sidewalk and park behind him. Thinking nothing of it, the Plaintiff turned back and continued on his path.

         When he reached his apartment building, the Plaintiff heard someone yell, “Hey! Stop!” He turned around again and realized that it was Officer Gasparino commanding him to stop. The Plaintiff told Gasparino that he “didn't do anything, ” to which Gasparino responded, “You're walking away.” The Plaintiff told him that he was walking home, which was not a crime, and asked to be left alone. He then turned back and attempted to walk inside his building. At that moment, Gasparino approached the Plaintiff from behind, grabbed his shoulder, and yanked him back. The Plaintiff turned and said, “You illegally seized me! What's your name and badge number?” Gasparino covered his nametag with his hand, and when the Plaintiff attempted to pull out his cell phone to record the encounter, Gasparino grabbed it and put it in his pocket. The Plaintiff then tried to enter his building, but Gasparino blocked his path.

         During the encounter with Gasparino, there were other men from the neighborhood standing down the street and witnessing the arrest. A short time later, Officer Bloomberg arrived and handcuffed the Plaintiff. Gasparino then searched the Plaintiff, confiscated the items in his pockets, and placed him in Bloomberg's police cruiser. Bloomberg sat in the car with the Plaintifff while Gasparino ran a check on the Plaintiff through the police database.

         While he sat in the car, the Plaintiff saw Gasparino approached the group of men on the street who were witnessing the arrest. When he returned, Gasparino had a small amount of marijuana in his hand and said to the Plaintiff, “This is yours.” The Plaintiff protested that the marijuana did not belong to him, and Gasparino replied, “It's yours now because of your big mouth.” Gasparino approached the group of men once more and then removed the Plaintiff from the car and searched him again. During the second search, Gasparino saw the Plaintiff looking at his nametag and said, “You're interfering.” He then placed the Plaintiff back inside the car.

         Inside the car, the Plaintiff begged Bloomberg to “do the right thing” because she knew that Gasparino had engaged in misconduct. Bloomberg told the Plaintiff, “That's not my job. He's my supervisor, [and] he's in charge.”

         The Plaintiff was taken to the police station, where he was charged with interfering with an officer, breach of peace, and possession of less than one-half ounce of marijuana. He was fingerprinted and searched, and his property was logged and placed in a storage locker. While the Plaintiff was waiting to be placed in a cell, Officer Jentz searched his property in the locker without a warrant and found a wallet with multiple credit cards. Officer Doe had given Jentz a key to access the locker where the Plaintiff's property was kept. Jentz then arrested the Plaintiff for larceny, identity theft, and theft of a credit card.

         The Plaintiff later learned that Gasparino had falsified his police report, stating that he saw the Plaintiff throw the marijuana, that he had walked away from the officers with two other individuals, and that he was disrespectful and threatening during the arrest. Gasparino also omitted several facts which the Plaintiff claims would show an illegal detention.

         The Plaintiff was charged with violating his probation, in violation of Connecticut General Statutes § 53a-32. At his parole revocation proceeding, Gasparino lied under oath, testifying that he saw the Plaintiff throw the marijuana at the scene. On July 7, 2016, the Plaintiff was found to ...