DiVerniero v. Murphy

• Decision Date: 03 April 1986
• Docket Number: No. N-81-513(EBB).,N-81-513(EBB).
• Citation: 635 F. Supp. 1531
• Parties: Joseph DiVERNIERO, et al. v. Frank MURPHY, et al.
• Court: U.S. District Court — District of Connecticut

635 F. Supp. 1531

Joseph DiVERNIERO, et al. v. Frank MURPHY, et al.

No. N-81-513(EBB).

United States District Court, D. Connecticut.

April 3, 1986.

Sue L. Wise, Williams & Wise, New Haven, Conn., for plaintiffs.

Martin S. Echter, Deputy Corp. Counsel, Karen S. Nash, Deputy Corp. Counsel, New Haven, Conn., for defendants.

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ELLEN B. BURNS, District Judge.

Plaintiffs filed this three-count complaint on November 6, 1981. The first two counts allege that the individual defendants violated plaintiffs' constitutional rights by using excessive force while effectuating unlawful arrests. Recovery is sought pursuant to 42 U.S.C. § 1983 ("section 1983"). The third count alleges that the Ogden Food Service Corporation ("Ogden"), the City of New Haven (the "City"), and the New Haven Coliseum Authority (the "Authority") conspired in restraint of trade in violation of section 1 of the Sherman Act, 15 U.S.C. § 1. The instant motion was filed on behalf of all of the defendants except Ogden.

I. Facts

In filing this motion for summary judgment, the defendants have not attacked the material factual allegations set forth in the complaint. Rather, the defendants have chosen to supplement those assertions with evidence related to the timing of the filing and service of the complaint. Therefore, for the purpose of deciding this motion, the court will accept the facts set forth in the complaint as true. Patrick v. LeFevre, 745 F.2d 153, 158 (2d Cir.1984) (burden on moving party to show no disputed factual issues.)

On November 8, 1978, plaintiffs were conducting business on the premises of Ray's Elmco gas station, a place of business owned by one of the plaintiffs. That evening a rock concert was being held nearby at the Veterans' Memorial Coliseum (the "Coliseum"). The plaintiffs often augmented their gas station business by selling parking spaces, food, beverages, and novelty items at times of Coliseum events.

The complaint alleges that on November 8, 1978, two of the individual defendants were off-duty from their normal police work and had been hired by Ogden, or the City, or the Authority, to check vendor permits in the vicinity of the Coliseum. These officers attempted to arrest an unknown tee-shirt vendor in the vicinity of the plaintiffs' place of business. Apparently the plaintiffs sought to intercede on behalf of the unknown vendor. A scuffle ensued in which plaintiffs claim they were brutally beaten, while the remaining individual defendants looked on passively. The plaintiffs were arrested for assault and interfering with a police officer. Both were acquitted following a jury trial.

In addition to the above-described incident, the complaint alleges that Ogden, the Authority, and the City conspired to hire off-duty police officers to harass vendors in the vicinity of the Coliseum. Ogden had the exclusive right to sell food, beverages, and novelties on the premises of the Coliseum. The alleged purpose of the conspiracy was to protect Ogden and the Authority from competition from street vendors. Plaintiffs claim that the harassment by off-duty police officers resulted in the abandonment of their business of selling food, beverages, and novelties to Coliseum patrons.

The instant complaint was filed with the clerk on November 6, 1981, within three years from the incident complained of in Counts One and Two. However, the complaint was not delivered to the United States Marshal for service until November 9, 1981. The complaint was served by the marshal upon all defendants on that date.

The defendants claim that the first two counts are barred by the statute of limitations. The City also asserts that the first two counts fail to state a claim against it under the principles set forth in Monell v. City of New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Finally, the City and the Authority claim to be immune from anti-trust liability under the state action exemption. During the pendency of this motion the Supreme Court issued a ruling in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). This court ordered the parties to submit supplemental briefs on the effect of Wilson on plaintiffs' section 1983 claims.

II. Applicable Limitations Period

In Wilson v. Garcia, supra, the court sought to correct the "conflict, confusion, and uncertainty concerning the appropriate statute of limitations to apply to" section 1983 causes of action. Id. 105 S.Ct. at 1941. The court recognized the long standing rule that federal courts must seek out and apply the most analogous limitations period of the forum state to section 1983 actions, so long as such period is not inconsistent with federal law. Id. However, in determining the most analogous state limitations period it is necessary to characterize a section 1983 cause of action by federal rather than state standards. Id. at 1943.

The Wilson court determined that the most analogous state statute of limitations is the one applicable to tort actions for the recovery of damages for personal injuries. Id. at 1947. This determination was based upon an exhaustive analysis of the nature of the cause of action Congress intended to create in section 1983. The legislative history of the Civil Rights Act of 1871 indicated that Congress was concerned with state officials abusing the authority of their office to deprive individuals of rights secured under federal law. Id. The Court determined that these protected rights are essentially personal in nature, and would be most appropriately governed by a limitations period applicable to personal injuries. Id.

This court must now apply Wilson to determine the Connecticut statute of limitations most analogous to a section 1983 cause of action. Prior to Wilson it had been assumed that the three-year limitation of Conn.Gen.Stat. § 52-577 (Action Founded Upon Tort) applied to section 1983 actions brought in Connecticut.¹ Williams v. Walsh, 558 F.2d 667, 670 (2d Cir.1977); Members of Bridgeport Housing Authority Police Force v. City of Bridgeport, 85 F.R.D. 624, 637 (D.Conn.1980). The defendants argue that Wilson requires a reconsideration of these earlier precedents and urges the court to apply the two-year limitation found in Conn.Gen.Stat. § 52-584 (Action For Injury to Person or Property).²

Defendants' argument favoring application of the two-year limitation of § 52-584 has some facial appeal. Unlike § 52-577, the two-year limitation specifically mentions "injuries to the person," language which was employed by the Supreme Court in Wilson. However, § 52-584 goes on to limit its application to injuries "caused by negligence or by reckless or wanton misconduct...." The Connecticut Supreme Court has determined that this limiting language makes § 52-584 inapplicable to intentionally inflicted personal injuries. Altieri v. Colasso, 168 Conn. 329, 332, 362 A.2d 798 (1975). Such intentional torts are therefore governed by the three-year limit found in the more general provision, § 52-577. Id. See also Shinabarger v. United Aircraft, 262 F.Supp. 52, 58 (D.Conn.1966), aff'd in part and rev'd in part on other grounds, 381 F.2d 808 (2d Cir.1967). Cf. Orticelli v. Powers, 197 Conn. 9, 16, 495 A.2d 1023 (1985) (applying three-year limitation to section 1983 actions brought in Connecticut state courts).

Because Connecticut has two statutes of limitations applicable to personal injury torts, it must be determined whether a cause of action brought under section 1983 is more analogous to an intentional tort or to one based upon negligence or recklessness. Other courts, when directly faced with this question, have determined that the limitations period applicable to intentional torts governs section 1983 actions. Weber v. Amendola, Civ. No. N-84-521, slip. op. (Nov. 26, 1985) (Cabranes, J.); Gates v. Spinks, 771 F.2d 916 (5th Cir. 1985); Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir.1985); Cook v. City of Minneapolis, 617 F.Supp. 461 (D.Minn. 1985). But see Belcha v. DeBenedet, Civ. No. N-85-212, slip. op. (D.Conn. Feb. 4, 1986) (Dorsey, J.) (assuming two-year limit applies but finding that Wilson should not be given retroactive application if claim would have been timely filed under pre-Wilson law).

The view that section 1983 causes of action are analogous to intentional torts finds support in the recent Supreme Court decision in Daniels v. Williams, ___ U.S. ___, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Prior to Daniels, the Court had held that a negligent deprivation of a constitutionally protected interest could give rise to a section 1983 cause of action. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). The Daniels court overruled this aspect of Parratt. Noting that the Due Process Clause of the Fourteenth Amendment protected individuals from abuses of governmental authority, the court refused to trivialize these protections by allowing mere negligence to support a section 1983 cause of action. 106 S.Ct. at 664-67.

The Daniels court left open the question of whether something less than intentional conduct might give rise to a section 1983 cause of action. Id. at 667, n. 3. Cf. Whitely v. Albers, ___ U.S. ___, ___, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (implying "deliberate indifference" standard applicable to Eighth Amendment cases requires conduct so dangerous that knowledge of risk of injury may be inferred). However, even if something less than intent is sufficient to state a section 1983 claim, Daniels indicates that the offending conduct must be sufficiently egregious to amount to an abuse of power. Such an abuse of power is more analogous to an intentional tort than one based upon negligence or recklessness. Wilson instructs that only one limitations period may be applied to all section 1983 claims brought within a given state, regardless of the particular acts alleged. 105 S.Ct. at 1947. Accordingly, this court...