Clarke v. Sweeney

• Decision Date: 30 March 2004
• Docket Number: No. CIV.A.3:00 CV 717(CF).,CIV.A.3:00 CV 717(CF).
• Court: U.S. District Court — District of Connecticut
• Parties: Pearline CLARKE, Individually and as the Administratrix of the Estates of Leroy "B.J." Brown, Jr. and Karen Clarke Plaintiff, v. Thomas J. SWEENEY, Individually and in his Official Capacity as Chief of Police of the City of Bridgeport and the City of Bridgeport, Defendants.

312 F.Supp.2d 277

Pearline CLARKE, Individually and as the Administratrix of the Estates of Leroy "B.J." Brown, Jr. and Karen Clarke Plaintiff, v. Thomas J. SWEENEY, Individually and in his Official Capacity as Chief of Police of the City of Bridgeport and the City of Bridgeport, Defendants.

No. CIV.A.3:00 CV 717(CF).

United States District Court, D. Connecticut.

March 30, 2004.

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Joseph A. Moniz, Moniz, Cooper & McCann, Hartford, CT, for Plaintiff.

Arthur C. Laske, III, Fairfield, CT, Barbara Brazzel-Massaro, Office of the City Attorney, Bridgeport, CT, for Defendants.

RULING ON THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

DRONEY, District Judge.

This case arises out of the shocking murders of a young boy and his mother by a Bridgeport drug dealer named Adrian Peeler in January of 1999. Adrian Peeler killed Leroy "B.J." Brown, Jr. and Karen Clarke to prevent them from testifying against his brother, Russell Peeler, who was awaiting trial for the murder of Karen Clarke's boyfriend in the Connecticut Superior Court.

The plaintiff, Pearline Clarke, is B.J.'s grandmother and Karen's mother,¹ and brought this action individually and as the administratrix of Karen and B.J.'s estates. The defendants are the City of Bridgeport and its former police chief, Thomas J. Sweeney. Pearline Clarke alleges that by failing to adequately protect Karen and B.J. from the Peeler brothers, utilizing flawed witness protection practices, and instituting a policy of encouraging minorities to cooperate with the police, the defendants violated Karen and B.J.'s federal constitutional rights to due process and equal protection. She also asserts the state law causes of action of negligence, gross negligence, and fraudulent misrepresentation.

This opinion considers the Defendants' Motion for Summary Judgment. The defendants argue that they are entitled to summary judgment on each of the plaintiff's claims, and they also argue that the defendant Thomas Sweeney is entitled to qualified immunity on the claims arising under federal law. For the following reasons, the motion is GRANTED as to the federal claims.

I. 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(c); 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.'" Miner v. City of Glens Falls, 999 F.2d 655, 661 (2d Cir.1993) (citation omitted). 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.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). 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 Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

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, 963 F.2d at 523. "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir.1992). "To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact, and that when any disputed facts are viewed in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 760 (2d Cir.2003). Thus, "where the versions of the facts differ, [the court] must consider [the non-moving party's] version and make all possible inferences in her favor." Id. at 763. "Nevertheless, the nonmoving party must come forward with specific facts showing that there is a genuine issue of material fact for trial.... Conclusory allegations, conjecture, and speculation ... are insufficient to create a genuine issue of fact." Shannon v. New York City Transit Authority, 332 F.3d 95, 99 (2d Cir.2003) (citations and internal quotation marks omitted).

II. Factual Background²

A. Undisputed Facts

On September 2, 1997, Russell Peeler attempted to kill Rudolph Snead in a drive-by shooting in Bridgeport while Snead sat in his car. Snead was shot by Peeler but recovered from his injuries. Apparently, the shooting was related to a dispute between Snead and Peeler regarding illegal drug trafficking. B.J. Brown, the eight-year old son of Karen Clarke,³ was a passenger in Snead's car at the time of the shooting. Peeler was subsequently arrested on a charge of attempted murder of Snead. After posting bond on the attempted murder charge, Peeler threatened Snead to prevent him from testifying against him. Apparently unsatisfied with Snead's response to this threat, Peeler shot and killed Snead while he was on the telephone in a barbershop in Bridgeport on May 29, 1998.

Approximately one week after Snead's murder, B.J. Brown and Karen Clarke gave statements to the Bridgeport Police Department ("BPD"), which identified Russell Peeler as the person who had attempted to kill Snead in the drive-by shooting. Karen brought B.J. to the police department without any prior contact or encouragement by the police. On the basis of the statements given to the BPD by Karen and B.J., and other information set forth in the arrest warrant application,⁴ Russell Peeler was arrested on June 15, 1998 for the murder of Snead. Peeler was released on bond on July 1, 1998. On that date, Sergeant Michael Kerwin of the BPD authored an internal memo which indicated that Karen was a witness to the murder of Snead, that the alleged murderer had been released, and that he had a history of retaliating against witnesses. Kerwin's memo suggested that Karen's address should be "flagged for an appropriate response" in the event of a call for help. On the next day, July 2, 1998, the BPD, after a request from the Bridgeport State's Attorney's office, placed marked police cars in front of Karen and B.J.'s home on Garfield Avenue in Bridgeport to protect them from possible retribution by Peeler. However, the police cars were removed on July 8, 1998, the day that Peeler was returned to jail after his bond was increased from $250,000 to $400,000 and he failed to post the additional amount. Peeler was again released on bond on July 13, 1998, but there were no police cars assigned to Karen and B.J.'s residence after they were removed on July 8, 1998. Also in July of 1998, Karen and B.J. moved to a new residence on Earl Avenue in Bridgeport. In August 1998, upon the request of Karen Clarke, Sergeant Kerwin arranged for B.J. to be transferred to a different school because Peeler's children attended B.J.'s former school.

On December 23, 1998, the State's Attorney's Office turned over its witness list and witness statements for Peeler's murder trial to Peeler's lawyer (which apparently included Karen and B.J.'s police statements), but the Superior Court ordered that the names of the witnesses and their statements not be disclosed to Peeler by defense counsel.⁵

On January 7, 1999, Karen and B.J. were murdered at their Earl Street residence by Russell Peeler's brother, Adrian Peeler, at the direction of Russell to prevent them from testifying at the Snead murder trial. Adrian Peeler entered Karen Clarke's home on Earl Avenue and shot both her and B.J. Adrian Peeler was subsequently convicted of conspiracy to commit the murders of B.J. and Karen. Russell Peeler was convicted of two counts of capital felony murder.⁶

There was no police protection afforded to Karen and B.J. between the time the police cars were removed from in front of their home on July 8, 1998, and the time that they were killed in January 1999.

B. Disputed Facts

As noted above "where the versions of the facts differ, [the court] must consider [the non-moving party's] version and make all possible inferences in her favor." Cowan, 352 F.3d at 763. However, although the Court considers all factual disputes in a light most favorable to the non-moving party, in order to create a genuine issue of material fact, Fed.R.Civ.P 56 requires that supporting affidavits "be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence...." The Second Circuit has held that while this Rule does not prevent a party from relying on affidavits that would themselves constitute hearsay, it does require an indication that the party will be able to present those facts in a form that is admissible at trial. See Santos v. Murdock, 243 F.3d 681, 683 (2d Cir.2001) ("Affidavits submitted to defeat summary judgment must be admissible themselves or must contain evidence that will be presented in an admissible form at trial."). See also H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir.1991) ("hearsay testimony ... that would not be admissible if testified to at ... trial may not properly be set forth in [a Rule 56] affidavit.") (internal quotation marks omitted); Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir.1985) (a party "cannot rely on inadmissible hearsay in opposing a motion for summary judgment ... absent a showing that admissible evidence will be available at trial").

Pearline Clarke claims that there are genuine issues of material fact that 1) a subpoena was issued by...