Wilson v. City of Norwich

Page 199

507 F.Supp.2d 199

Melanie WILSON, Plaintiff v. CITY OF NORWICH, Louis T. Fusaro, and James F. Daigle, Jr., Defendants.

Civil Action No. 3:02-CV-1026(CFD).

United States District Court, D. Connecticut.

September 5, 2007.

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John R. Williams, New Haven, CT, Linda L. Mariani, Peter D. Catania, Stephen E. Reck, Mariani & Reck, New London, CT, for Plaintiff.

Alexandria L. Voccio, Beatrice S. Jordan, John J. Radshaw, III, Thomas R. Gerarde, Howd & Ludorf, LLC, Eric P. Daigle, Christine P. Plourde, Halloran & Sage, Hartford, CT, for Defendants.

RULING ON MOTION FOR SUMMARY JUDGMENT

CHRISTOPHER F. DRONEY, District Judge.

In June 2002, Melanie Wilson commenced an action in the Connecticut Superior Court, against defendants Louis T. Fusaro (the Chief of the Norwich Police Department), the City of Norwich ("Norwich"), and James F. Daigle, Jr., a former Norwich police officer. Norwich and Fusaro subsequently filed a notice to remove the case to this court.

Wilson's claims stem from two incidents: First, in September of 2000, Daigle allegedly took nude photographs of Wilson during an underage alcohol "sting" operation. In a second incident in December of 2000, Daigle allegedly took semi-nude photographs of Wilson for the supposed purpose of participating in a child pornography "sting". Counts One through Fourteen, Thirty-Five and. Thirty-Six are directed to the co-defendant, James F. Daigle. Those claims are not at issue here.

Counts Fifteen through Thirty-Four and Thirty-Seven are brought against Chief Louis T. Fusaro and the City of Norwich. In Counts Fifteen and Sixteen, Wilson alleges that the respective parties are liable for negligent supervision under Connecticut law, concerning Daigle's conduct during the alcohol "sting" investigation. Counts Seventeen and Eighteen allege violations of Conn. Gen.Stat. § 46a-58.¹ Counts Nineteen and Twenty allege violation of 42 U.S.C. § 1983. Finally, Counts Twenty-One through Thirty-Four and Thirty-Seven all allege that the City is responsible for indemnifying Wilson for Daigle's acts. Chief Fusaro and the City of Norwich have filed a motion for summary judgment, seeking to dismiss those counts. For the reasons set forth below, the motion is granted in part and denied in part.

I. Background

In September of 2000, Daigle was a Norwich police officer with the rank of sergeant. He was responsible for implementing Norwich's underage alcohol sales program. This "sting" program used underage volunteer operatives who attempted to buy alcohol either while wearing concealed recording devices or accompanied by undercover Connecticut Department of Liquor Control officers. As part of the operation, the operatives were to be photographed as they appeared during the investigation, apparently to demonstrate that the Department had not selected underage operatives who appeared to be much older than their true ages. Over the course of 2000 and 2001, Daigle recruited three young women to serve as volunteer operatives. He convinced each of them that, in addition to clothed photographs, the program also required nude or partially nude photographs. These young women were Melanie Wilson, Kirsten Ejchorszt, and Theresa Ear1.²

In September of 2000, Wilson, who was an acquaintance of James Daigle, volunteered to participate in the underage alcohol "sting" operation. Wilson was eighteen years old at that time. On September 15, 2000, the day of the first sting, Daigle came to Wilson's home to pick her up. Daigle brought with him a department-issued digital camera. Daigle told Wilson that he needed to take photographs of her without any clothing on in order to show that she was not wearing a "wire" or tape recorder. Daigle assured Wilson that taking such photographs was standard police procedure. Wilson believed that the photographs were necessary and allowed Daigle to take fully nude photographs of her front and back.

After taking the photographs, Wilson accompanied Daigle to the police station. There, Daigle took additional clothed photographs of Wilson using the same camera. Then, Daigle took Wilson on the sting operation to local package stores and bars.

Around October of 2000, Daigle again approached Wilson about her potential participation in a police operation. This time Daigle asked if she would be willing to pose for nude pictures in order to aid a purported child pornography investigation. Wilson at first refused, but later decided that she would be willing to pose for topless photographs in order to aid the purported investigation.

In December of 2000, Daigle brought Wilson to his house, where he took pictures of Wilson naked from the waist up. Daigle took 17 photographs of Wilson in various positions. There was no child pornography investigation authorized by the Norwich Police Department.

On December 3, 2001, Ejchorszt filed a complaint about Daigle with Chief Fusaro. Deputy Chief Warren Mocek was assigned to investigate the complaint. Around this time, Daigle called Wilson and told her that he was not to have taken the nude or partially nude photographs of her, and that he had done so as the result of an honest error. Wilson agreed not, to report the photographs.

During the investigation, Mocek contacted Wilson because of her role in the September 2000 sting operation. Mocek asked Wilson whether anything unusual had occurred and whether any pictures had been taken. Wilson denied that anything inappropriate had happened and that any pictures had been taken.

After reading news accounts of the incident involving Ejchorszt, Wilson again spoke to Daigle. According to Wilson, Daigle again indicated that the photographs "were not necessarily outside of protocol, but were `unneeded,' because different situations were handled differently," and claimed that he had never taken inappropriate photographs of Ejchorszt.

As a result of publicity about the investigation, Earl came forward with allegations that Daigle had taken similar nude and semi-nude photographs of her with the pretext that they were needed for legitimate police purposes. After learning about the incident involving Earl, Wilson decided to report the photographs that Daigle had, taken of hereto Deputy Chief Mocek.

Following Mocek's six-month long investigation, Daigle was terminated from the Norwich Police Department for, among other things, conduct unbecoming an officer, violation of the department's strip search policy, failure to conform to the police code and canon of ethics, inappropriate use of his official position, neglect of duty, incompetence, and poor judgment.

In 1987 and 1998, Daigle had taken consensual nude and partially nude photographs of two female civilian employees of the Norwich Police Department and shared these photographs with other members of the Norwich Police Department. Sometime before the incidents in this case, Fusaro became aware of Daigle's photographs of one of the employees during an investigation of another police officer, but he had never seen those photographs.³

Daigle had received training on conducting strip searches of female prisoners, and had received sexual harassment training. Prior to September 2000, he had also received training on conducting alcohol sting operations, but received no particularized training on working with underage volunteers.

II. Summary Judgment Standard

In a summary judgment motion, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 5(c)); accord Miner v. Glens Falls, 999 F.2d 655, 661 (2d Cir.1993). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

Where, as in this case, the nonmoving party has the burden of proof at trial, the moving party need only demonstrate that there is a lack of evidence to support the nonmovant's claim. Celotex, 477 U.S. a 323-25, 106 S.Ct. 2548; Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95 (2d Cir.1998). Once the movant has established a prima facie case demonstrating the lack of a genuine issue of material fact, the nonmoving party must provide enough evidence to support a jury verdict in its favor. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). A plaintiff may not rely on conclusory statements or mere contentions that the evidence in support of summary judgment is not credible. Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993). Similarly, a plaintiff, as the nonmovant, may not rest "upon the mere allegations or denials" in its complaint to demonstrate the existence of a genuine issue of material fact. Fed. R.Civ.P. 56(e). Therefore, after discovery, if the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then summary judgment is appropriate. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. When addressing a motion for summary judgment the Court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992). Thus, "[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Maffucci, 923 F.2d at 982.

III. The Defendants'...