Roe v. City of Waterbury

Citation542 F.3d 31
Decision Date11 September 2008
Docket NumberDocket No. 07-0261-cv.
PartiesSusan ROE, Jr., ppa Atty. Lynn Jenkins, Guardian Ad Litem, and Jane Doe, Jr., ppa Atty. Allison Jacobs, Plaintiffs-Appellants, v. The CITY OF WATERBURY, and Philip Giordano, i/o Mayor of the City of Waterbury, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Erskine D. McIntosh, The Law Offices of Erskine D. McIntosh, P.C., Hamden, CT, Gerald Harmon, The Law Offices of Gerald Harmon, Meriden, CT, for Plaintiff-Appellant Susan Roe, Jr.

Michael S. Hillis, Dombroski, Knapsack, & Hill, L.L.C., New Haven, CT, for Plaintiff-Appellant Jane Doe, Jr.

Elliot B. Spector, Noble, Spector, Young, & O'Connor, P.C., Hartford, CT, for Defendant-Appellee.

Before: JACOBS, MINER, Circuit Judges, and McAVOY, District Judge.*

MINER, Circuit Judge:

Plaintiffs-appellants, Susan Roe, Jr. and Jane Doe, Jr. (collectively, the "Plaintiffs"), appeal from a summary judgment entered on September 28, 2006 which was certified and entered as a final partial summary judgment on November 16, 2006, in the United States District Court for the District of Connecticut (Underhill, J.) in favor of defendant-appellee the City of Waterbury (the "City" or "Waterbury"). The District Court held that the City could not be held liable under 42 U.S.C. § 1983 for acts of sexual abuse committed by the former Mayor of Waterbury, Philip Giordano ("Giordano" or the "Mayor"), because, although Giordano was a final policymaker, he was not acting in his official capacity when he sexually abused Plaintiffs. The District Court also concluded that the City could not be collaterally estopped from relitigating the issue of whether Giordano was acting under "color of law" when he committed the tortious acts because the Plaintiffs could not show that the color of law issue litigated in Giordano's criminal trial was identical to the color of law issue presented here. The District Court further held that Connecticut's governmental immunity statute barred Plaintiffs' state law claims against the City. For the reasons that follow, we affirm the judgment of the District Court.

BACKGROUND

Giordano was elected Mayor of the City of Waterbury, Connecticut, in 1995. Between November 2000 and July 2001, Giordano sexually abused the Plaintiffs on numerous occasions at the mayor's office, in his home, and in his city-issued police cruiser.

At some time before Giordano was elected Mayor, he met Guitana Jones ("Jones"). Thereafter, Jones, a prostitute and crack addict, provided Giordano with sexual favors in exchange for money. These encounters occurred until Giordano's arrest. During the Summer of 2000, Giordano requested that Jones introduce younger women to him. In response, Jones brought her niece, then ten-year-old plaintiff Jane Doe, Jr., and her biological daughter, then eight-year-old plaintiff Susan Roe, Jr., to the Mayor. From approximately November 2000 until July 2001, Giordano solicited sexual acts from Roe and Doe, during which time he was aware of their ages. Giordano arranged with Jones for those sexual encounters through the use of cellular telephones paid for and issued by the City of Waterbury.1

On July 26, 2001, Giordano was arrested and charged, inter alia, with depriving the Plaintiffs of their constitutionally protected rights under 18 U.S.C. § 242. See Doe v. City of Waterbury, 453 F.Supp.2d 537, 540 (D.Conn.2006). During Giordano's criminal trial, Roe and Doe separately testified about the sexual acts that they performed during their encounters with the Mayor. Roe further testified that after each encounter Giordano declared that if she told anyone about the sexual acts, her mother would go to jail. On March 25, 2003, a jury found Giordano guilty of 17 of the 18 counts, including the two counts charging Giordano with acting under color of law to deprive Doe and Roe of their constitutional rights to be free from unwanted sexual abuse, in violation of 18 U.S.C. § 242. The District Court denied Giordano's motion to set aside the verdict, and this Court affirmed Giordano's conviction. See United States. v. Giordano, 442 F.3d 30 (2d Cir. 2006).

About four and one-half months after Giordano was arrested, on December 7, 2001, Roe commenced a civil action against Giordano, in both his official and individual capacities, and against the City of Waterbury seeking damages for violations of 42 U.S.C. § 1983 and state law violations based on the same conduct that resulted in Giordano's convictions. Doe initiated a similar action on December 5, 2001 against Giordano and the City, also alleging violations of 42 U.S.C. § 1983 and state law.

On August 18, 2005, Roe moved for summary judgment, claiming that (1) the issue of the violation of her Fourteenth Amendment right to bodily integrity previously was litigated in Giordano's criminal trial and decided in her favor, and (2) defendants should therefore be collaterally estopped from relitigating that issue. Doe also moved for summary judgment on October 31, 2005, arguing that: (1) there was no genuine issue of material fact as to whether Giordano acted under color of law in violating her right to bodily integrity under the Fourteenth Amendment; (2) no genuine issue of material fact existed as to whether Giordano violated Doe's rights under state law; and (3) there was no genuine issue as to whether the City "was the moving force behind the violations of [Doe's] rights because [Giordano] acted as the City's authorized final policymaker." In addition, Doe argued that Giordano's criminal conviction should estop both Giordano and the City from relitigating the issue of whether Giordano deprived Doe of her rights under color of state law.

On December 1, 2005, the City filed a motion seeking summary judgment against Roe and Doe,2 arguing that (1) Giordano's actions did not represent any official policy of Waterbury and, therefore, as a matter of law, there was no basis for holding the City liable under 42 U.S.C. § 1983 for his actions; and (2) collateral estoppel does not apply to the City because (a) it is not in privity with Giordano, and (b) the legal and factual issues decided in Giordano's criminal trial are not identical to those presented in the civil actions. As of April 4, 2006, when the District Court heard arguments on the parties' summary judgment motions, Giordano had not responded to the Plaintiffs' motions for summary judgment. At oral argument on the parties' summary judgment motions, in lieu of a response, Giordano submitted a copy of his 2006 Petition for Rehearing En Banc to the Second Circuit Court of Appeals.

On September 28, 2006, the District Court granted Plaintiffs' summary judgment motion against Giordano as to the claims brought against him in his individual capacity but denied summary judgment as to the claims against Giordano in his official capacity. The District Court also granted the City of Waterbury's summary judgment motion dismissing all claims brought against the City. Doe, 453 F.Supp.2d at 537.

On November 16, 2006, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the District Court granted Plaintiffs' motion seeking certification of partial summary judgment and directed entry of partial final judgment in favor of Waterbury with respect to all claims against Waterbury.

On January 19, 2007, Plaintiffs timely appealed the September 28, 2006 order to the extent that the claims were certified and entered as a final judgment in the November 16, 2006 order.

ANALYSIS
I. Jurisdiction

Because Plaintiffs appeal the final judgment the District Court entered in favor of Waterbury on November 16, 2006, pursuant to Rule 54(b), we have jurisdiction pursuant to 28 U.S.C. § 1291, which grants jurisdiction over "appeals from all final decisions of the district courts of the United States." 28 U.S.C. § 1291.

II. Standard of Review

We review a grant of summary judgment de novo. State Street Bank & Trust Co. v. Salovaara, 326 F.3d 130, 135 (2d Cir.2003). Summary judgment shall be "rendered if the pleadings, the discovery and disclosure materials on the files, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue of fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Id.

This standard dictates that courts must "resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Brown v. Henderson, 257 F.3d 246, 251 (2d Cir.2001) (internal quotation marks and citation omitted). Once the moving party demonstrates that there are no genuine issues of material fact, the nonmoving party "must come forth with evidence sufficient to allow a reasonable jury to find in [its] favor." Id. at 251 (internal citation omitted). Thus, a nonmoving party can defeat a summary judgment motion only "by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to establish the existence of [an] element at trial." Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 100 (2d Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c)).

III. Municipal Liability Pursuant to 42 U.S.C. § 1983

The Plaintiffs claim that the District Court erred in granting the City's motion for summary judgment dismissing all claims against it based on the sexual abuse committed by Giordano. Specifically, Plaintiffs argue that the municipality should be held liable under § 1983 because: (1) Giordano was a final policymaker for the City; and (2) he was acting within his official...

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