Doe v. Town of Greenwich

          MEMORANDUM OF DECISION ON THE DEFENDANTS' MOTION TO DISMISS

          Kari A. Dooley, United States District Judge

         I. INTRODUCTION

         This case arises out of an alleged sexual assault on the then minor Plaintiff, Jane Doe (the “Plaintiff” or “Ms. Doe”), that took place at her home while she was still attending high school at Greenwich Academy (“GA”). The alleged assailant, Peter Roe (“Mr. Roe”), also a minor at the time, attended Brunswick School (“Brunswick”). At the Complaint's core is a claim of historical collusion between the Town of Greenwich Police Department (“Greenwich PD”) and Brunswick to sweep allegations by GA students of sexual assault against Brunswick students under the rug. The Plaintiff alleges that the Greenwich PD intentionally fails to conduct a proper investigation of such allegations and improperly shares information with Brunswick in a concerted effort to thwart any real prosecution of the accused Brunswick student. As a result, the Plaintiff alleges, Brunswick students are emboldened to commit sexual assaults on GA students with impunity and are allowed to engage in a campaign of harassment and bullying when a GA student makes a complaint of sexual assault. The Plaintiff brings this action against the Town of Greenwich (the “Town”), and against Sergeant Detective Reeves and Detective Rondini (collectively, the “Officers”) of the Special Victims Section (“SVS”) of the Greenwich PD, in their individual and official capacities. The Officers were responsible for the purportedly sham investigation into the Plaintiff's alleged assault.

         Count One sounds in Fourteenth Amendment Equal Protection and Substantive Due Process claims and Count Two alleges Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress. Before the Court is the Defendants' Motion to Dismiss (ECF No. 20), to which the Plaintiff has objected. For the following reasons, the Motion to Dismiss is GRANTED in part and DENIED in part.

         II. PROCEDURAL HISTORY

         The Defendants filed their Motion to Dismiss on October 4, 2018 (ECF No. 20). On November 16, 2018, the Plaintiff filed a Motion to Amend the Complaint (ECF No. 33), attaching the proposed amendment to her memorandum in support of the motion. Before the Court ruled on her Motion to Amend, the Plaintiff filed a Memorandum in Opposition to the Defendant's Motion to Dismiss, relying therein on the new allegations contained in the Proposed Amended Complaint. In response, the Defendant filed a Motion to Disregard or Strike the Plaintiff's Opposition (ECF No. 38). Following a telephonic hearing on January 7, 2019, the Court granted the Plaintiff's Motion to Amend and gave the Defendants additional time within which to file a reply to Plaintiff's opposition to the motion to dismiss, addressing the added allegations in the Second Amended Complaint. The Defendants filed their reply on January 28, 2019 (ECF No. 50). On May 8, 2019, the Court heard oral argument on the Motion to Dismiss, and thereafter took the motion under advisement.

         III. STANDARD OF REVIEW

         To survive a motion to dismiss filed pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557). Legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Nevertheless, when reviewing a motion to dismiss, the court must accept well-pleaded factual allegations as true and draw “all reasonable inferences in the nonmovant's favor.” Interworks Sys. Inc. v. Merch. Fin. Corp., 604 F.3d 692, 699 (2d Cir. 2010).

         IV. FACTUAL ALLEGATIONS

         As indicated above, for purposes of this motion, the Court accepts the factual allegations in the Second Amended Complaint as true and they are as follows:

         Brunswick is an elite private boys' college-preparatory day school in Greenwich. Am. Compl. ¶ 2. Seven former Town of Greenwich police officers, at least four of whom are former detectives, are now employed in Brunswick's Security Department. Id. These former police officers keep in close contact with the Greenwich PD and have set up an inappropriate “back channel” with Greenwich PD to give Brunswick notice and information about criminal complaints against Brunswick students, so that Brunswick can take immediate steps to control the situation and to prevent negative publicity from tarnishing its reputation in the community. Id. For several years, SVS has shared confidential information with Brunswick in order to allow the school to coordinate witness reports and put into place protective measures to shield its students from criminal prosecution and to protect itself against unfavorable publicity. Id. at ¶¶ 3, 4.

         The Plaintiff reported that she was sexually assaulted to SVS by Brunswick student, Mr. Roe, and that the assault had occurred at a pool party at her home. Id. at ¶ 22, 28. Greenwich PD followed its policy, practice or custom and allowed Brunswick to take the lead in interviewing witnesses. Id. at ¶ 5. SVS allowed Brunswick's headmaster to interview several witnesses (“Brunswick Witnesses”) and to use this information to coordinate Mr. Roe's defense and tamper with the Brunswick Witnesses before they spoke to SVS. Id. at ¶¶ 6-7. The result was a sham investigation by SVS that was designed to, and did, convince the State's Attorney not to file any charges against Mr. Roe or any other Brunswick students. Id. at ¶ 7.

         The Officers made no attempt to obtain Mr. Roe's text messages or social media postings, a standard practice when investigating any complaint, especially involving teenagers whose prime mode of communication is electronic. Id. at ¶ 33. Rather than conducting actual interviews with the Brunswick Witnesses, Det. Rondini merely asked them to submit their own written statements or write down what they recalled. Id. Det. Rondini supported her arrest warrant application, which was submitted to the State's Attorney, with a written statement made by a GA student who did not attend the pool gathering and who had been disciplined by GA for bullying the Plaintiff during the police investigation by spreading false rumors that Plaintiff had fabricated the incident. Sgt. Det. Reeves tried to intimidate the Plaintiff's parents by telling them that nothing much had happened at the party, that proceeding with the complaint would ruin Mr. Roe's “college chances” and would expose the Plaintiff and her family to liability for doing so, and that it wasn't a case worth pursuing because there were no witnesses to the alleged assault. Id. at ¶ 38.

         Det. Rondini did not submit her affidavit in support of the arrest warrant until December 22, 2016, which was clearly calculated to be buried in the activities of the holiday season. Id. at ¶ 40.

         At minimum, the Defendants were deliberately indifferent to the likely consequence that their years-long practice of collusion with Brunswick emboldened Brunswick students to freely engage in sexual assaults without concern about criminal liability, foreseeably resulting in harm to the Plaintiff and to an entire class of female victims who have been and will be assaulted by Brunswick students. Id. at ¶ 47. In this way, Greenwich PD has been giving preferential treatment to the male students of Brunswick and much less favorable treatment to the female students of GA and other schools who allege they have been assaulted by Brunswick students. Id. at ¶ 42.

         The Plaintiff has been damaged by the collusion between the Defendants and Brunswick by being publicly maligned and humiliated, and subjected to defamatory statements, all as part of Brunswick's effort to discredit her to preserve its own reputation. Id. at ¶ 47. The emotional distress has been so severe that it has significantly affected her physical health, emotional well-being, and academic performance. Id. at ¶ 56.

         Given the Plaintiff's special vulnerability, the Officers, trained to deal with special victims such as teenagers, knew or should have known that the campaign to malign would result in extreme emotional distress when experienced by a teenager in high school. Id. at ¶ 53.

         V. DISCUSSION

         A. Equal Protection

         The Fourteenth Amendment to the United States Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws, ” and is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To analyze the plaintiff's equal protection claim, the Court “must decide, first, whether [the challenged state conduct] operates to the disadvantage of some suspect class or impinges a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict scrutiny . . . If not, the scheme must still be examined to determine whether it rationally furthers some legitimate, articulated ...