Doe v. City of Waterbury, Civil Action No. 3:01cv2298 (SRU).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Writing for the CourtStefan R. Undevhill
Citation453 F.Supp.2d 537
PartiesJane DOE, Jr. and Susan Roe, Jr., Plaintiffs, v. The CITY OF WATERBURY and Philip Giordano, Defendants.
Decision Date28 September 2006
Docket NumberCivil Action No. 03cv571.,Civil Action No. 3:01cv2298 (SRU).
453 F.Supp.2d 537
Jane DOE, Jr. and Susan Roe, Jr., Plaintiffs,
v.
The CITY OF WATERBURY and Philip Giordano, Defendants.
Civil Action No. 3:01cv2298 (SRU).
Civil Action No. 03cv571.
United States District Court, D. Connecticut.
September 28, 2006.

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Erskine D. McIntosh, Law Offices of Erskine D. McIntosh, Hamden, CT, Lawrence M. Herrmann, Cheshire, CT, Michael Stanton Hillis, Dombroski, Knapsack & Hillis, Lynn Jenkins, Law Office, New Haven, CT, Michael W. Mackniak, Naugatuck, CT, Gerald Lewis Harmon, Meriden, CT, for Plaintiffs.

Elliot B. Spector, Noble, Spector, Young & O'Connor, Hartford, CT, Andrew B. Bowman, Law Offices of Andrew Bowman, Westport, CT, for Defendants.

RULING ON MOTIONS FOR SUMMARY JUDGMENT

STEFAN R. UNDEVHILL, District Judge.


Between November 2000 and July 2001, Philip Giordano, then-mayor of the City of Waterbury ("Waterbury"), sexually abused the two minor plaintiffs, Jane Doe, Jr. ("Doe") and Susan Roe, Jr. ("Roe"), on numerous occasions at the mayor's office, home, and in his city-issued police cruiser.

In September 2001, a federal grand jury returned an 18-count superceding indictment. Specifically, the indictment charged Giordano with: (1) depriving two minor children of their due process liberty right to be free from sexual abuse, in violation of 18 U.S.C. § 242; (2) conspiring to knowingly initiate the transmission of the minor victims' names by using means of interstate commerce, in violation of 18 U.S.C. §§ 2425 and 371; and (3) knowingly initiating the transmission of the minor victims'

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names by using means of interstate commerce with the intent to encourage them to engage in sexual activity, in violation of 18 U.S.C. § 2425. 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. Subsequently, the District Court denied Giordano's motion to set aside the verdict, and the Second Circuit Court of Appeals affirmed Giordano's conviction.

Doe and Roe each filed a civil lawsuit against Giordano and Waterbury,1 primarily alleging violations of 42 U.S.C. § 1983 and state law. Each has filed a motion for summary judgment against Giordano and Waterbury, and Waterbury filed a cross-motion for summary judgment against both Doe and Roe. On April 4, 2006, I heard oral arguments on all pending motions.2 As of that date, Giordano had not responded to the motions for summary judgment, and to date, has essentially not responded to the motions. At oral argument, Giordano submitted a copy of his Petition for a Rehearing En Banc by the Second Circuit Court of Appeals as his response. See Doc. # 96.

I. Standard of Review

Summary judgment is appropriate when the evidence demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed2d 202 (1986) (party must present affirmative evidence in order to defeat a properly supported motion for summary judgment).

When ruling on a summary judgment motion, the court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); see also Aldrich v. Randolph Cent. Sch, Dist., 963 F.2d 520, 523 (2d Cir.1992) (court is required to "resolve all ambiguities and draw all inferences in favor of the nonmoving party"), cert. denied, 506 U.S. 965, 113 S.Ct. 440, 121 L.Ed.2d 359 (1992). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or denials of his pleadings, but rather must present significant probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995).

"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), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d

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780, 788 (2d Cir.1992). If the nonmoving party submits evidence that is "merely colorable," or is not "significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.

The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

Id. at 247-48, 106 S.Ct. 2505. To present a "genuine" issue of material fact, there must be contradictory evidence "such that a reasonable jury could return a verdict for the non-moving party." Id. at 248, 106 S.Ct. 2505.

If the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof at trial, then summary judgment is appropriate. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In such a situation, "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-23, 106 S.Ct. 2548; accord Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995) (movant's burden satisfied if he can point to an absence of evidence to support an essential element of nonmoving party's claim). In short, if there is no genuine issue of material fact, summary judgment may enter. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

II. Discussion

The pending motions for summary judgment raise three legal issues: (1) whether there is a genuine issue of material fact concerning Waterbury's liability under either section 1983 or state law; (2) whether a claim against Giordano in his official capacity is legally the same as a claim against Waterbury; and (3) whether there is any genuine issue of material fact concerning Giordano's individual liability under federal and state law.

A. Municipal Liability

1. Section 1983 Legal Standard

With respect to a section 1983 claim, a plaintiff must prove four elements: (1) actions taken under color of law; (2) deprivation of constitutional or statutory right; (3) causation; and (4) damages. See 42 U.S.C. § 1983. When a plaintiff brings a section 1983 claim against a municipality, she must prove a fifth element— that an official policy of the municipality caused her constitutional injury. See Monell v. Dep't. of Social Services of the City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ... .

(emphasis supplied). Local governments and municipalities are "persons" within the meaning of the statute, and therefore liability may attach to municipalities under

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section 1983. Monell, 436 TJ.S. at 690, 98 S.Ct. 2018; City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). The Monell Court limited municipal liability under section 1983, however, by concluding that a municipality may not be found liable based on the vicarious liability theory of respondent superior. Monell, 436 U.S. at 691, 98 S.Ct. 2018. Instead, a municipality may only be sued directly if a plaintiff alleges that a "municipal policy of some nature caused a constitutional tort." Id. In other words, a municipality may not be found liable simply because one of its employees or agents committed a tort. Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).

After evaluating the legislative history of section 1983, the United States Supreme Court has concluded that vicarious liability would be inconsistent with section 1983's causation requirement. Praprotnik, 485 U.S. at 122, 108 S.Ct. 915. As a result, "the `official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). See also Nicholson v. Scoppetta, 344 F.3d 154, 165 (2d Cir.2003) (explaining that plaintiff must show that municipality is actually responsible for her injury). The Supreme Court has emphasized that:

[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged. That is, a plaintiff must show that the...

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20 practice notes
  • Frisenda v. the Inc. Vill. of Malverne, No. 08–CV–4198 (JFB)(ARL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 31, 2011
    ...on [the] particular issue involved in the action.” Jeffes, 208 F.3d at 57 (quotation marks omitted); see also Doe v. City of Waterbury, 453 F.Supp.2d 537, 543 (D.Conn.2006) (“The critical inquiry is not whether an official generally has final policymaking authority; rather, the court must s......
  • Enung v. Sabhnani, No. 08–cv–2970 (ADS)(WDW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 25, 2011
    ...& Forster Ins. Co. v. Goodmark Industries, Inc., 488 F.Supp.2d 241, 245 (E.D.N.Y.2007) (Spatt, J.) (same); Doe v. City of Waterbury, 453 F.Supp.2d 537, 550 (D.Conn.2006) (same). The Court will apply these requirements to the present motion for summary judgment in this case.C. As to the Defe......
  • Meyers v. Kishimoto, 3:14–cv–00535 (CSH)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • November 17, 2016
    ...under color of law; (2) deprivation of constitutional or statutory right; (3) causation; and (4) damages." Doe v. City of Waterbury , 453 F.Supp.2d 537, 542 (D. Conn. 2006) (citing 42 U.S.C. § 1983 ), aff'd , Roe v. City of Waterbury , 542 F.3d 31 (2d Cir. 2008). Plaintiff claims that the I......
  • Hogan v. Cherokee Cnty., CIVIL CASE NO. 1:18-cv-00096-MR-WCM
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • February 12, 2021
    ...that criminal activity can prevent a policymaker's actions from being imputed to the municipality. In Doe v. City of Waterbury, 453 F. Supp. 2d 537, 546 (D. Conn. 2006), the court determined that the mayor in that case, although the official policymaker, did not subject the municipality to ......
  • Request a trial to view additional results
20 cases
  • Frisenda v. the Inc. Vill. of Malverne, No. 08–CV–4198 (JFB)(ARL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 31, 2011
    ...on [the] particular issue involved in the action.” Jeffes, 208 F.3d at 57 (quotation marks omitted); see also Doe v. City of Waterbury, 453 F.Supp.2d 537, 543 (D.Conn.2006) (“The critical inquiry is not whether an official generally has final policymaking authority; rather, the court must s......
  • Enung v. Sabhnani, No. 08–cv–2970 (ADS)(WDW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 25, 2011
    ...& Forster Ins. Co. v. Goodmark Industries, Inc., 488 F.Supp.2d 241, 245 (E.D.N.Y.2007) (Spatt, J.) (same); Doe v. City of Waterbury, 453 F.Supp.2d 537, 550 (D.Conn.2006) (same). The Court will apply these requirements to the present motion for summary judgment in this case.C. As to the Defe......
  • Meyers v. Kishimoto, 3:14–cv–00535 (CSH)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • November 17, 2016
    ...under color of law; (2) deprivation of constitutional or statutory right; (3) causation; and (4) damages." Doe v. City of Waterbury , 453 F.Supp.2d 537, 542 (D. Conn. 2006) (citing 42 U.S.C. § 1983 ), aff'd , Roe v. City of Waterbury , 542 F.3d 31 (2d Cir. 2008). Plaintiff claims that the I......
  • Hogan v. Cherokee Cnty., CIVIL CASE NO. 1:18-cv-00096-MR-WCM
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • February 12, 2021
    ...that criminal activity can prevent a policymaker's actions from being imputed to the municipality. In Doe v. City of Waterbury, 453 F. Supp. 2d 537, 546 (D. Conn. 2006), the court determined that the mayor in that case, although the official policymaker, did not subject the municipality to ......
  • Request a trial to view additional results

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