Gothberg v. Town of Plainville

148 F.Supp.3d 168

Erik Gothberg, Plaintiff,

v.Town of Plainville, Matthew Catania, Jon Eno, Dean Cyr, Robert James Naccarato, Esq. Administrator, Town of Southington, James P. Shanley Executor of the Estate of Michael Shanley, Jay Suski, and Scott Wojenski, Defendants.

3–13–CV–01121 (CSH)

United States District Court, D. Connecticut.

Signed September 3, 2015

Jeremiah J O'Connor, Thompson, O'Connor & Associates, Meriden, CT, for Plaintiff John J. O'Neil, Jr., Bankruptcy Trustee for Erik Gothberg.

Dennis M. Durao, Karsten & Tallberg LLC, Rocky Hill, CT, James Newhall Tallberg, Karsten & Tallberg, LLC, West Hartford, CT, Kristan M. Maccini, Thomas R. Gerarde, Howd & Ludorf, LLC, Hartford, CT, for Defendants.

RULING ON MOTION FOR JUDGMENT ON THE PLEADINGS, MOTIONS TO SUBSTITUTE AND MOTION TO AMEND THE COMPLAINT

HAIGHT, Senior District Judge:

This case arises out of an interaction between Plaintiff Erik Gothberg (hereinafter, “Plaintiff” or “Gothberg”), a Connecticut citizen and resident, and police officers of two Connecticut Towns: Plainville and Southington.

During the early morning hours of July 16, 2011, Plainville officers arrested Gothberg to enforce a warrant issued by Southington officers. Gothberg's complaint alleges that during the course of that arrest, he was shot by a Plainville officer and seriously injured. The complaint asserts federal civil rights claims under 42 U.S.C. § 1983, as well as claims under the Connecticut constitution; Connecticut statutes (Conn. Gen. Stat. §§ 7–465 and 52–557n ); and the common law.

Based on their comparatively attenuated involvement in Gothberg's shooting, the Town of Southington, Southington police officers Michael Shanley, Jay Suski and Scott Wojenski (collectively, the “Southington Defendants”), have moved for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. This Ruling decides that motion along with separate motions filed by Gothberg to substitute parties and to amend the complaint.¹

I

The following facts are derived from the operative complaint. Doc. [88–3].²

The events giving rise to this litigation began on July 14, 2011, around which time Plaintiff was the subject of a criminal investigation directed by Michael Shanley, a lieutenant in the Southington Police Department.

Id. at ¶ 30. As part of his investigation, Shanley contacted Plaintiff to discuss allegations made by Plaintiff's estranged wife, Lisa Gothberg. Plaintiff cooperated with the investigation and voluntarily presented himself to Shanley at the Southington police station on July 14. Also on that day, though for reasons not entirely clear in the complaint, Shanley seized the sole firearm owned by Plaintiff, and, along with other members of the Southington Police Department, “secure[d] Plaintiff's Southington residence, denying Plaintiff access to the residence and its contents.” Id. at p. 58, ¶ 34.

On July 15, Shanley obtained an arrest warrant for Plaintiff. That evening, Lisa Gothberg informed the Southington Police that she had “suspicions ... regarding ... Plaintiff's emotional and mental state.” Id. at p. 59, ¶ 36. Those suspicions caused the Southington Police “great alarm and concern, despite the fact that they knew Lisa Gothberg was extremely hostile towards Plaintiff.” Id. Accordingly, the Southington Police “initiated an emergency investigation into Plaintiff's whereabouts and requested his immediate seizure.” Id. at ¶ 37. Using GPS technology to track Plaintiff's cell phone, the Southington police determined that Plaintiff was at the AMC Loews 20 movie theater in Plainville.

At approximately 12:07 a.m. on the morning of July 16, Southington Police Detective Scott Wojenski, acting at the direction of Southington Police Sergeant Jay Suski, communicated Plaintiff's location to members of the Plainville police. At approximately 2:20 a.m., the Plainville Police, including Defendants Sergeant Dean Cyr, Sergeant Timothy C. Mullaney, and Officer Jon Eno, as well as Southington officers, Suski and Wojenksi, approached and attempted to forcibly take Plaintiff into custody at gunpoint. Id. at p. 62 ¶ 45. Notwithstanding the fact that Plaintiff was cooperative and unarmed, at least two of the Plainville officers, Mullaney and Eno, repeatedly fired upon Plaintiff. Plaintiff was seriously injured by a bullet that entered his left foot. Id. This lawsuit followed.

The 41–count complaint alleges that one or more of the several Defendants violated in various ways the federal and state constitutions, the state statutes, and the common law. The Southington Defendants move to dismiss counts 25 through 41, which are specifically directed at them.

II

In general, “the standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006).

Under the now well-established Twombly standard, a complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929, (2007). The Second Circuit has explained that, after Twombly, the Court's inquiry under Rule 12(b)(6) is guided by two principles. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ), where the Second Circuit said:

“First, although ‘a court must accept as true all of the allegations contained in a complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ ” Id. at 72 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ). “ ‘Second, only a complaint that states a plausible claim for relief survives a motion to dismiss' and ‘[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ ” Id. (quoting Iqbal, 556 U.S. at 663–64, 129 S.Ct. 1937 ). Thus, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and ... determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 556 U.S. at 664, 129 S.Ct. 1937.

In considering a motion to dismiss, this Court accepts as true the factual allegations set forth in the complaint and draws all reasonable inferences in the Plaintiff's favor. Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) ; In re NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir.2007). Only if this Court is satisfied that “the complaint cannot state any set of facts that would entitle the plaintiff to relief will it grant dismissal pursuant to Rule 12(b)(6).” Hertz Corp. v. City of N.Y., 1 F.3d 121, 125 (2d Cir.1993). The issue on a motion to dismiss is “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).

III

A. 42 U.S.C. § 1983 (Shanley, Suski and Wojenski)

The complaint alleges that Shanley, Suski and Wojensk (collectively, the “Southington Officers”) violated Plaintiff's rights secured by the Fourth, Sixth, and Fourteenth Amendments in violation of 42 U.S.C. § 1983. In support thereof, the complaint avers that the Southington Officers, acting under color of state law, “caused to be transmitted to the Plainville Police highly inflammatory, inaccurate, and misleading information about Plaintiff and his state of mind”; that their transmission of that information caused the Plainville Police “to become agitated and excited” and ultimately arrest Plaintiff through the use of “excessive and unreasonable force”; that their transmission of that information was “reckless,” “without just cause,” and “intended to ... deprive the Plaintiff of his rights secured by the Fourth, Sixth, and Fourteenth Amendments”; and that their conduct was the “direct and proximate” cause of Plaintiff's injuries.” Doc. [88–3] (count 28, 33, and 38).

The Southington Defendants argue that claims for excessive force cannot be predicated on the Fourteenth Amendment, that Plaintiff's claims under the Sixth Amendment are conclusory, that the complaint does not allege sufficient personal involvement to sustain a claim under the Fourth Amendment, and that they are, in any event, entitled to qualified immunity at this point in the proceedings. I analyze the complaint's allegations under the Sixth, Fourth, and Fourteenth Amendments in turn.

1. Sixth Amendment

The Southington Defendants argue that the complaint's claims under the Sixth Amendment are conclusory and should be dismissed.³ As Plaintiff does not respond to this argument, it appears that he has abandoned his claims predicated on the Sixth Amendment. In any event, there are no well-pleaded allegations supporting Plaintiff's claims that his rights under the Sixth Amendment were violated by the Southington Defendants. Plaintiff's Sixth Amendment claims are insufficient as a matter of law and will be dismissed.

2. Fourth Amendment

The Fourth Amendment guarantees the people's right to be secure “against unreasonable searches and seizures.” In the case at bar, there is no dispute that police officers “seized” Plaintiff Gothberg outside the movie theater during the early morning hours of July 16. The legal sufficiency of Plaintiff's pleaded claims against Town of Plainville officers involved in that arrest is not at issue in the present motion, which is made by those Town of Southington police officers whom I refer to collectively as “the Southington Defendants.”

The Southington Defendants argue that Plaintiff's Fourth Amendment claims fail because the complaint does not sufficiently allege...