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Hoegemann v. Palma

United States District Court, D. Connecticut

December 23, 2019

RICHARD HOEGEMANN, Plaintiff,
v.
DONATO PALMA, JENNIFER DESENA, JAMES LONG, & FRANK MIRTO, Defendants.

          RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Richard Hoegemann (“Plaintiff”) brought this action under 42 U.S.C. § 1983 in forma pauperis alleging various civil rights violations committed by Donato Palma, a Town of East Haven police officer, and several parole officers employed by the Connecticut Board of Pardons and Parole, Jennifer Desena, James Long, and Frank Mirto (“State Defendants”) (collectively “Defendants”) in their individual capacities.

         Officer Palma and the State Defendants have separately moved for summary judgment.

         For the following reasons, both motions for summary judgment are GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background [1]

         Richard Hoegemann is a registered sex offender with two prior convictions. State Defendants' Statement of Material Facts Not in Dispute, ECF No. 58-2 ¶ 1 (Nov. 1, 2019) (“State Defs.' SMF”).

         As of October 25, 2019, Frank Mirto served as the Deputy Director of the Parole and Community Services Division. Id. ¶ 39. Before that date, from 2012 until the times relevant to this case, Mr. Mirto served as Parole Manager of the Special Management Unit, which closely monitors and supervises convicted offenders who have exhibited problem sexual behavior and have stipulations for evaluation and treatment for such behavior. Id. Mr. Mirto served as a Parole Officer or Parole Manager for fifteen years before serving as Deputy Director. Id. James Long has been a Parole Officer for approximately fifteen years. Id. ¶ 11. Jennifer Desena is also a PO. Id.

         On November 20, 2013, Mr. Hoegemann was assigned to Ms. Desena's caseload. Id. ¶ 3 (Nov. 1, 2019) (“State Defs.' SMF”). As part of his earlier guilty plea to sexual assault, [2] Mr. Hoegemann had to serve twelve-and-a-half years of special parole. Id. ¶ 2.

         On January 8, 2014, Mr. Hoegemann violated various conditions of his Special Parole, including a new criminal arrest and charges, so he was remanded to the custody of Connecticut's Department of Corrections (“DOC”). Id. ¶ 4.

         On May 29, 2014, Mr. Hoegemann received a new criminal sentence of less than a year. Id. ¶ 5.

         On August 8, 2014, Mr. Hoegemann was reinstated to Special Parole and again assigned to Ms. Desena. Id. ¶ 6. Ms. Desena met with Mr. Hoegemann prior to his release to Special Parole, and Mr. Hoegemann signed his conditions of parole, which included a stipulation to GPS monitoring and a consent to search condition. Id. ¶ 7. The consent to search condition, applicable to all Connecticut parolees, stated: “I will submit to a search of my person, possessions, vehicle, residence, business, or other area under my control at any time, announced or unannounced, with or without cause, by parole or its agents to verify my compliance with the conditions of my parole.” Id. ¶ 8 (citing Ex. B: Statement of Understanding and Agreement - Conditions of Parole, ECF No. 58-4 at 13 (“Parole Conditions Agreement”)).

         Subsequently, Ms. Desena took a leave of absence from work due to a family matter, and in her absence, another parole officer inadvertently authorized removal of Mr. Hoegemann's GPS monitoring. Id. ¶ 9.

         December 3, 2014 Incident

         On December 3, 2014, Ms. Desena contacted Mr. Hoegemann and directed him to be home at around 8:00 p.m. for re-installation of an ankle GPS monitoring device. Id. ¶ 10. Ms. Desena asked James Long to perform this duty, and he agreed. Id. ¶ 12.

         Around 8:07 p.m., the East Haven Police Department received a 911 call. Palma's Local Rule 56(a)(1) Statement, ECF No. 59-2 ¶ 1 (Nov. 1, 2019) (“Palma's SMF”). A male caller reported having been assaulted by Richard Hoegemann at Robinson Aviation. Id. Officer Donato Palma, the investigating officer, submitted the eventual warrant for Mr. Hoegemann's arrest. Id. ¶ 2. As part of his investigation, Officer Palma spoke with Mr. Hoegemann by telephone between 9:00 p.m. and 10:00 p.m. Id. ¶ 3. These calls were recorded by the East Haven Police Department. Id.

         At approximately 9:00 p.m., or shortly thereafter, Mr. Long arrived at Mr. Hoegemann's residence in Newington. State Defs.' SMF ¶ 13.

         At approximately 9:22 p.m., Officer Palma first called Mr. Hoegemann. Id. ¶ 4. After a brief exchange, Mr. Hoegemann handed his phone to Mr. Long, who then had a conversation with Officer Palma. State Defs.' SMF ¶ 14. Mr. Long explained to Officer Palma that he did not know what time Mr. Hoegemann arrived home, but when Mr. Long had arrived, Mr. Hoegemann was out front with his vehicle, a silver Chrysler 300. Id. ¶ 15. At no point during this first conversation did Officer Palma inform Mr. Long that he had received authorization to have Mr. Hoegemann strip searched, nor did Officer Palma request that Mr. Long search Mr. Hoegemann's vehicle. Palma SMF ¶¶ 5, 6. During this first call, Mr. Hoegemann indicated that he did not leave counseling until 7:20 p.m. Id. ¶ 7.

         Also during this first call, Officer Palma never stated that he was aware of Mr. Hoegemann's parole status or that he could have him “sent back to jail where he belongs, ” nor did Mr. Hoegemann state that he was “going to file a complaint against Palma for threatening him.” Id. ¶¶ 9, 10. Mr. Hoegemann never filed a complaint against Officer Palma. Id. ¶ 13.

         After this call, Officer Palma called the Waterbury Parole Office around 9:40 p.m., but no one answered. Id. ¶ 14. Then, also at approximately 9:40 p.m., Officer Palma called Mr. Hoegemann again, and spoke with both him and Mr. Long. Id. ¶ 15. Mr. Long communicated that Mr. Hoegemann was supposed to get out of a counseling session at 7:00 p.m. and meet Mr. Long at 8:00 p.m. so that Mr. Long could install a GPS bracelet on Mr. Hoegemann, but Mr. Long had arrived late. State Defs.' SMF ¶ 16. As a result, Mr. Long could not confirm Mr. Hoegemann's location at the time of the crime. Palma SMF ¶ 42. Officer Palma did not inform Mr. Long that he had received authorization to have Mr. Hoegemann strip searched, nor did Officer Palma request that Mr. Long search Mr. Hoegemann's vehicle. Id. ¶¶ 19, 20 (undisputed). Nevertheless, Mr. Hoegemann maintains and testified at his deposition that during the second call, Officer Palma ordered Mr. Long to strip search him. Id. ¶ 32.[3]

         Between the first and second conversations and before placing the GPS device, Mr. Long conducted a pat-down search and may have reached under Mr. Hoegemann's jacket and into his waistband to ensure he had no weapons. State Defs.' SMF ¶ 19. The pat-down was consistent with Mr. Long's years of training and experience. Id. ¶ 20. Because he was alone, Mr. Long “was concerned, as he is always, about his safety and the safety of others.” Id.

         Mr. Hoegemann also showed Mr. Long a receipt for cigarettes at a nearby store. Id. ¶ 17. The receipt was time-stamped 9:01 p.m. Id.

         At approximately 9:57 p.m., Officer Palma was able to reach and speak with Ms. Desena. Palma SMF ¶ 22. During this call, Officer Palma informed Ms. Desena that “the [P]laintiff had been involved in an incident earlier in the evening and that an arrest warrant for the [P]laintiff, for breach of peace, and possibly assault third degree was going to be placed on the [P]laintiff.” State Defs.' SMF ¶ 28 (undisputed). Ms. Desena relayed to Officer Palma that Mr. Hoegemann was supposed to have been in counseling until 5:45 p.m. Call Five, ECF No. 59-4 at 33 (transcript of the first phone call between Ms. Desena and Officer Palma); but see Pl.'s Local Rule 56 Statement, ECF No. 63-1 ¶ 41 (Nov. 22, 2019) (“Pl.'s SMF - Palma”) (alleging that Officer Palma “well knew that the [P]laintiff ran late and that in fact he could not have committed the crime at the time alleged in the 911 call”).

         Officer Palma spoke with Ms. Desena again at approximately 10:09 p.m. Palma SMF ¶ 25. Officer Palma did not request authorization from Ms. Desena for Mr. Hoegemann to be strip searched. Id. ¶¶ 23, 26. Ms. Desena also contacted her then-supervisor, Mr. Mirto, and informed him of the situation. State Defs.' SMF ¶ 29. Mr. Mirto did not have any personal contact with Mr. Hoegemann on December 3, 2014. Id. ¶ 40.

         Sometime that evening, Mr. Long also contacted Mr. Mirto, who was also his then-supervisor, and reported 911 call made to the East Haven Police Department, and that he had also informed Ms. Desena about the situation. State Defs.' SMF ¶ 27. Mr. Mirto directed Mr. Long to leave. Id. Mr. Long recorded the events in his case notes. Id.

         Mr. Long maintains that he did not “strip search the plaintiff as alleged in the complaint, ” State Defs.' SMF ¶ 21, but according to Mr. Hoegemann, Mr. Long inspected him for bruising and asked him to remove articles of clothing, Pl.'s Local Rule 56 Statement, ECF No. 64-1 ¶ 21 (Nov. 22, 2019) (“Pl.'s SMF - State Defs.”); Ex. 1: Hoegemann Dep., ECF No. 58-3 at 46:22-24 (Sept. 27, 2019) (“Q. So what articles of clothing did you remove, if anything? A. Sweatshirt, T-shirt, tank top.”). See also Pl.'s SMF - State Defs. ¶ 21 (“the phrase ‘strip' search is not a term with any precise definition”); id. ¶ 24 (admitting “that there was no reference to a strip search in the recorded telephone calls”). Mr. Long also maintains he never asked Mr. Hoegemann to remove his T-shirt and undershirt. State Defs.' SMF ¶ 25; compare Id. ¶ 26 (Officer Palma did not ask Mr. Long to “inspect [P]laintiff's upper torso to look for marks or scratches, as alleged by plaintiff in his deposition”), with Pl.'s SMF - State Defs. ¶ 26 (admitting the previous fact).

         According to Mr. Hoegemann, the removal of those three articles of clothing-the sweatshirt, T-shirt, and tank top-is the “strip search” at issue in this lawsuit. Palma SMF ¶¶ 29, 30 (admitted). Mr. Hoegemann also alleges that this “strip search” occurred while Mr. Long was on the phone with Officer Palma. Id. ¶ 31.

         Subsequent Parole Actions

         On December 5, 2014, after a case conference, Mr. Mirto authorized and directed Ms. Desena to remand Mr. Hoegemann to custody. State Defs.' SMF ¶¶ 30, 42. Other parole officers who assisted with the remand were Parole Officers Long, Fortuna, and Thompson. Id. The remand was routine, and Mr. Hoegemann cooperated. Id. ¶ 31; see also Id. ¶ 32 (noting that Conn. Gen. Stat. § 54-127 authorizes any parole officer to arrest and hold any parolee who is ordered back into actual custody without a written warrant).

         Ms. Desena continued her investigation of the parole violation. Id. ¶ 33. Following Mr. Mirto's directions, she spoke with and obtained statements from the complainants in the assault that occurred on December 3, 2014: Glenn Evans, who was the victim, and Nazia Rahman, who was a witness and Mr. Hoegemann's ex-girlfriend. Id. ¶¶ 33, 43. Mr. Mirto witnessed and notarized one of the statements. Id. ¶ 43. Ms. Desena then prepared a Notice of Parole Violation Report. Id. ¶ 34.

         Like Ms. Desena, Mr. Mirto was on-duty and present at the Waterbury District Parole Office on December 5, 2014, when Plaintiff was remanded. Id. ¶¶ 42, 45. At no time did Mr. Hoegemann complain to Mr. Mirto about an alleged strip search, improper search, or otherwise improper conduct by any PO. Id. 45. Mr. Hoegemann admits that he testified incorrectly at his deposition that Mr. Mirto was not present that day. Compare State Defs.' SMF ¶ 44, with Pl.'s SMF - State Defs. ¶ 44 (admitting the fact).

         On December 9, 2014, the Notice of Parole Violation Report was served on Mr. Hoegemann, but he refused to sign it. State Defs.' SMF ¶ 35. The Notice charged him with violating condition (1), obey all laws; and condition (6), statutory release criteria, which stated that Mr. Hoegemann's release on parole “was no longer compatible with the welfare of society, and it was not reasonably probable that he could live and remain on parole without violating the law.” Id. ¶ 36.

         Ms. Desena then completed a Parole Violation Report, adding four addenda based on new information received before the parole revocation hearing. Id. ¶ 37.

         On December 29, 2014, after reviewing the evidence submitted by the Department of Correction parole officers, regarding Mr. Hoegemann's conduct on December 3, the Chairperson of the Board of Pardons and Paroles found that there was probable cause to issue a warrant for Mr. Hoegemann's re-imprisonment. Id. ¶ 55.

         On March 15, 2016, after a parole revocation hearing, by a preponderance of the evidence, Mr. Hoegemann was found to have violated his conditions of Special Parole. Id. The parole revocation hearing had been continued “a number of times” at Mr. Hoegemann's request. Id. ¶ 59.

         Mr. Mirto did not receive any inmate request or grievance concerning the conduct of any parole officer with regard to either December 3 or December 5, 2014. Id. ¶ 46. Grievances about staff misconduct “are taken quite seriously and investigated” by a dedicated staff person in the Parole and Community Service unit. Id. ¶ 47. Mr. Hoegemann admits he did not file any grievances concerning the events in this case, id. ¶ 49, but also admits he has used the same inmate administrative remedy system with regard to other issues, id. ¶ 51. Despite knowing about the administrative remedies process, Mr. Hoegemann never filed a complaint against any of the State Defendants. Id. ¶¶ 52-54.

         Subsequent Arrest Actions

         On January 15, 2015, Officer Palma signed an arrest warrant, which charged Mr. Hoegemann with breach of peace in the second degree and stalking in the second degree. Palma SMF ¶ 34. As part of his investigation, Officer Palma interviewed Mr. Hoegemann's ex-girlfriend, who was present during the December 3, 2014, assault at Robinson Aviation, had a child with Mr. Hoegemann, and had complained to the Hamden Police Department about alleged child custody issues and harassment by him. Id. ¶ 43 (undisputed). The warrant listed the incident date as December 2, 2014, instead of December 3, 2014. Id. The parties dispute whether the incorrect date was a typographical error. Compare State Defs.' SMF ¶ 56, with Pl.'s SMF - State Defs. ¶ 56.

         On January 20, 2015, a prosecuting authority signed the arrest warrant, Palma SMF ¶ 35, and a judge of the Connecticut Superior Court ...


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