Barton v. City of Bristol
| Decision Date | 24 November 2003 |
| Docket Number | No. CIV.3:02 CV 1210 PCD.,CIV.3:02 CV 1210 PCD. |
| Citation | 294 F.Supp.2d 184 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Andrew BARTON, Plaintiff, v. CITY OF BRISTOL, et. al. Defendants. |
Erin I. O'Neil-Baker, James S. Brewer, Brewer & O'Neil, West Hartford, CT, Raun M. Marlin, Rocky Hill, CT, for Plaintiff.
Alexandria L. Voccio, Martha Anne Shaw, Michael J. Rose, Howd & Ludorf, Hartford, CT, Giovanna Trocchi Giardina, John K. McDonald, Melissa A. Scozzafava, Kernan & Henry, Waterbury, CT, Eric R. Brown, AFSCME Council 15, Meriden, CT, for Defendants.
RULING ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Defendants Suchinski, Mullaney, Dekow, Bristol Police Union Local # 754, and the City of Bristol move for summary judgment. [Doc. No. 64, 68, 70]. For the reasons stated herein, Defendants' motions are granted.
Plaintiff was hired by the Bristol Police Department in August, 1986. In June 1997 he was promoted to detective and thereafter assigned to the narcotics unit. Mullaney, a Detective Sergeant in the Bristol Police Department, supervised detectives on the narcotics team, including Plaintiff. On August 31, 1999, Suchinski was a Bristol Police Department Detective assigned to the narcotics unit.
On August 31, 1999, the Bristol and West Hartford police departments were involved in a joint narcotics investigation in which a controlled delivery of intercepted marijuana was arranged at Meineke Muffler in Bristol. A Meineke employee, Rivera, signed for and accepted the delivery. Rivera told the detectives that he had received the package for an acquaintance named "Eddie" in exchange for $1,000. He paged "Eddie" three times to notify him that the package arrived, but "Eddie" failed to respond. Mullaney determined that probable cause existed to arrest Rivera, and advised Detective Lennon of his decision. After advising Plaintiff of Mullaney's decision, Lennon requested that Plaintiff speak with Mullaney. When Mullaney reiterated his decision to arrest Rivera, the three officers (Mullaney, Lennon, and Barton) conversed about the decision.
According to Plaintiff, after Mullaney had decided to arrest Rivera, Mullaney asked Plaintiff and Lennon why the suspect should not be arrested, and they responded to his questions. Although Plaintiff admits that a discussion occurred, he denies Defendants' allegation that he argued with Mullaney in public view.2
Mullaney submitted a report to Detective Lieutenant Killiany regarding the incident, stating that Plaintiff's vigorous and public opposition to his decision constituted a scene and violated §§ 2.22 and 1.00 of the Bristol Police Department's Code of Conduct.3 The report was reviewed by Killianny, Captain Kalwat, and Bristol Police Chief John DiVenere. After finding Plaintiff's behavior "totally inappropriate and border[ing] on insubordination," Killiany, Kalwat, and Divenere directed Mullaney to issue Plaintiff a written reprimand for violating §§ 2.22 and 1.00. On September 4, 1999, Mullaney issued Plaintiff the reprimand.4
Team ("ERT"), informed Plaintiff he was being removed from the ERT for breaching the Code of Conduct. Pursuant to Bristol Gen. Order 95-1-134, a detective may be removed from the ERT for "[a] serious, sustained, violation of the [Bristol Police Department] Code of Conduct as determined by the Chief of Police and ERT Commander." Bristol. Gen. Order 95-1-134, Bristol's Mem. in Supp. of Summ. J. at Exh. H.5
Plaintiff had been a member of the ERT since its inception in 1994 or 1995. Assignment to the ERT did not involve any pay change. On December 5, 1997, he had been placed on a six month ERT probation for poor behavior. In 1998 Sergeant Osanitsch raised concerns about Plaintiff's performance on the ERT. Plaintiff's removal from the ERT did not result in any changes to his base salary, seniority, ranking, or title. Although Defendants argue that removal from the ERT did not affect Plaintiff's benefits, Plaintiff alleges that he suffered from loss of overtime, training opportunities, and loss of the general benefit derived from being a member of the ERT. Plaintiff alleges that his position of the ERT constituted a property right protected by the Fourteenth Amendment.
Mullaney and Suchinski were not involved in supervising the ERT or disciplining ERT members.6 Defendants deny that Mullaney or Suchinski were personally involved in the decision to remove Plaintiff from the ERT. Plaintiff alleges, without further evidentiary substantiation, that they had influence over the decision. Defendants deny Plaintiff's allegation that Suchinski placed a rubber rat on Plaintiff's desk. Plaintiff concedes that he does not know for a fact that Suchinski placed the rubber rat. Cars used by detectives on the Narcotics Enforcement team are not assigned to particular individuals for personal use.7
Plaintiff was a beneficiary of the collective bargaining agreement between Bristol and AFSCME Local # 754. On October 1, 1999 he filed a grievance concerning his removal from the ERT. On October 5, 1999, Local # 754's Vice President filed a Local Grievance on the removal, which went to Step Four arbitration. The parties dispute what happened in the interim.8
Defendant Dekow was President of Local # 754 from January 1, 1994 through December 31, 2002. In September, 1999, neither Dekow nor Local # 754 engaged in any investigation of Plaintiff. Neither Dekow nor Local # 754 had any authority to decide to remove Plaintiff from the ERT or to deprive him of any property or liberty interest he alleges to have enjoyed with Bristol. Neither Dekow nor Local # 754 conspired to have him removed from the ERT or caused him to suffer deprivation of any constitutionally protected interests. Plaintiff never filed internal union charges of misconduct against Local # 754 members regarding his complaint. Local # 754 is funded by its members' dues and receives no governmental funding. Regulatory control of Local # 754 is maintained by AFSCME Council 15 and AFSCME International, the Local's parents. When asked to describe specifically how the Local # 754 Defendants allegedly failed to represent him (including specific dates), Plaintiff stated that
Count One alleges a violation of Plaintiff's Fourteenth Amendment right to Equal Protection against all individual Defendants pursuant to 42 U.S.C. § 1983.
Count Two alleges a violation of Plaintiff's Fourteenth Amendment right to Due Process as to all Defendants pursuant to 42 U.S.C. § 1983.
Count Three alleges a claim of First Amendment retaliation against all individual Defendants pursuant to 42 U.S.C. § 1983.
Count Four alleges a breach of duty of fair representation by Local # 754.
Count Five alleges intentional infliction of emotional distress as to all individual Defendants.
Plaintiff seeks (1) compensatory damages of $1,000,000; (2) punitive damages pursuant to state common law and 42 U.S.C. § 1983; (3) attorneys fees and costs under 42 U.S.C. § 1988; (4) lost and future wages; (5) reinstatement into position as Lieutenant with all attendant wages and benefits; and (6) such other relief the Court may deem appropriate.
A party moving for summary judgment must establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A party opposing a properly brought motion for summary judgment bears the burden of going beyond the pleadings, and `designating specific facts showing that there is a genuine issue for trial.'" Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir.2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In determining whether a genuine issue has been raised, all ambiguities are resolved and all reasonable inferences are drawn against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). Summary judgment is proper when reasonable minds could not differ as to the import of evidence. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). "Conclusory allegations will not suffice to create a genuine issue." Delaware & H.R. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990). Determinations as to the weight to accord evidence or credibility assessments of witnesses are improper on a motion for summary judgment as such are within the sole province of the jury. Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir.1996).
The Union Defendants, Local # 754 and Dekow, argue that they cannot be held liable for any alleged violation of 42 U.S.C. § 1983 because they are not state actors. Local # 754 Mem. in Supp. of Summ. J. at 9-15.
To state a claim under 42 U.S.C. § 1983, the alleged injury must have been caused by state actors or those acting under color of state law. Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992). The Second Circuit has set forth the following criteria to analyze whether an entity's action constitutes state action:
(1) the degree to which the "private" organization is dependent on governmental aid; (2) the extent and intrusiveness of the governmental regulatory scheme; (3) whether that scheme connotes government approval of the activity or whether the assistance is merely provided to all without such connotation; (4) the extent to which the organization...
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