Everitt v. Demarco, Civil Action No. 3:08-cv-543 (VLB).
| Decision Date | 30 March 2010 |
| Docket Number | Civil Action No. 3:08-cv-543 (VLB). |
| Citation | 704 F.Supp.2d 122 |
| Parties | Bruce EVERITT and Kathleen Everitt, Plaintiffs,v.Edward J. DeMARCO, Jr. et al., Defendants. |
| Court | U.S. District Court — District of Connecticut |
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Jon L. Schoenhorn, Mathew Sorokin, Jon L. Schoenhorn & Associates LLC, Hartford, CT, for Plaintiffs.
Kerry L. Keeney-Curtin, Scott M. Karsten, Karsten, Dorman & Tallberg LLC, West Hartford, CT, for Defendants.
The plaintiffs, Bruce and Kathleen Everitt (collectively “Plaintiffs” or “the Everitts”), filed this action for damages as well as injunctive and declaratory relief pursuant to 42 U.S.C. § 1983 and the First and Fourteenth amendments of the United States Constitution. The Plaintiffs name as defendants the Town of East Windsor (hereinafter “the Town”), its Chief of Police Edward DeMarco, its Police Captain Roger Hart, and four present or former Police Commission members: Linda Sinsigallo, Richard Sherman, Lorraine DeVanney, and Cliff Nelson. They assert the following claims: first, that the Defendants violated the First Amendment by suspending Bruce Everitt in retaliation for Kathleen Everitt's speech; second, that the Defendants violated the First Amendment by harassing and persecuting the Plaintiffs in retaliation for filing this lawsuit; third, that the Defendants violated the Plaintiffs' right to intimate association by disciplining Bruce Everitt in retaliation for Kathleen Everitt's speech; and fourth, that the Defendants violated the Plaintiffs' right to equal protection by disciplining Bruce Everitt in retaliation for Kathleen Everitt's speech.
Presently pending before the Court is the Defendants' motion for summary judgment. See Doc. # 77. The Defendants argue that there is no evidence in the record to support the Plaintiffs' claims against any defendant, that the Plaintiffs have failed to establish municipal liability against the Town, and that the individual Defendants are entitled to qualified immunity. For the reasons stated below, the Defendants' motion is GRANTED IN PART and DENIED IN PART. Specifically, summary judgment is granted in favor of the Defendants on the Plaintiffs' equal protection claim. Summary judgment is also granted in favor of the Defendants on the Plaintiffs' claim alleging that the Defendants retaliated against them for filing this lawsuit, but only to the extent that the Plaintiffs are seeking money damages on this claim. The Plaintiffs' intimate association claim and claim alleging that the Defendants retaliated against Kathleen Everitt for her speech by suspending Bruce Everitt shall go forward to trial.
The following facts relevant to the Defendants' motion for summary judgment are undisputed unless otherwise noted. Bruce Everitt has been a member of the East Windsor Police Department (hereinafter the “EWPD”) for twenty-eight years. Kathleen Everitt, his wife of thirty years, does not work for the EWPD. Edward DeMarco is the Chief of Police in East Windsor. Roger Hart is a Captain for the EWPD. Defendants Nelson, Sinsigallo, Sherman and DeVanney are, or at relevant times were, members of the East Windsor Police Commission (hereinafter the “Commission”).
On September 7, 2007, Bruce Everitt and other members of the EWPD arrested an individual following a physical struggle to take him into custody. Both Everitt and the suspect experienced injuries during the struggle. Everitt was instructed by his sergeant to escort the suspect to the hospital for treatment. Everitt did not inform anyone at the scene that he had been injured and did not complain about this assignment, nor did he indicate that he was physically unable to complete it.
While en route to the hospital, Everitt called his wife and told her that he was injured during the course of an arrest but that he had been instructed to escort an injured suspect to the hospital. Following that conversation, Kathleen Everitt called the EWPD dispatch to complain about the treatment of her husband in light of his injury. After Bruce Everitt finished work that evening, Kathleen Everitt escorted him to the hospital, where she remained with him during his interactions with the medical staff.
Later that night, Kathleen Everitt informed her husband that she was upset and that she was planning to write a letter to the members of the Commission. The following day, Kathleen Everitt typed a letter on her computer at home, and placed copies of the letters she prepared in individual sealed envelopes, each addressed to a member of the Commission as well as defendants DeMarco and Hart. She placed the envelopes on the kitchen table. Bruce Everitt observed his wife doing these things, but denies any knowledge of the specific contents of the letter. He understood that Kathleen Everitt intended to hand-deliver the letters at on upcoming Commission meeting.
On September 12, 2007, one of the Commission members, James Barton, was present in the Everitts' house on unrelated business. Bruce Everitt gave the complaint letters to Commissioner Barton, and asked him to deliver them to their intended recipients at the Commission meeting scheduled for that evening. Kathleen Everitt was not home at the time. Barton read his copy of the letter while in the presence of Bruce Everitt and delivered the remaining letters to their addressees at the meeting.
On September 21, 2007, DeMarco wrote to Kathleen Everitt stating that he had ordered Captain Hart to investigate her complaint. DeMarco also asked Hart to investigate whether Bruce Everitt had violated any internal department policies and procedures. Hart concluded that there had been no violation of departmental policy in the handling of Everitt's injury. He further concluded that Everitt had violated the EWPD's chain of command policy requiring officer complaints to be lodged first with an officer's immediate supervisor willfully disregarded EWPD directives and orders, and engaged in conduct unbecoming an officer. Following further proceedings related to the letter, the Commission imposed a seven-day suspension on Everitt. Everitt filed a grievance of this planned discipline with the Connecticut Board of Mediation and Arbitration, which remains pending.
On April 11, 2008, the Everitts brought this action and moved for a preliminary injunction against the enforcement of the suspension. The Court held a hearing on the Plaintiffs' application for preliminary injunction on June 4, 2008. During the hearing, Bruce Everitt testified that he had never previously been suspended from the EWPD. See Doc. # 34. Believing this testimony to be untruthful, the Defendants commenced an investigation to establish that Everitt had in fact previously been suspended. Based upon their findings, the Defendants filed a motion for a supplemental hearing to present “demonstrative evidence” that Everitt had given false testimony at the June 4, 2008 hearing. The supplemental hearing was held on August 27, 2008, and the Defendants failed to introduce demonstrative evidence proving that Everitt had testified falsely at the prior hearing.
Following the supplemental hearing, the EWPD continued its investigation. In the interim, the parties agreed to stay enforcement of Bruce Everitt's suspension until a trial on the merits of the case. See Doc. # 51. On October 21, 2008, the Plaintiffs filed a motion for an emergency restraining order seeking to restrain the Defendants from either criminally or internally investigating, harassing, threatening, or imposing discipline against Everitt based upon his testimony at the June 4, 2008 hearing. See Doc. # 45. A hearing on that motion was held on December 3, 2008. By Memorandum of Decision dated March 9, 2009, 601 F.Supp.2d 456 (D.Conn.2009), the Court denied the Plaintiffs' motion for an emergency order on the basis of comity, finding that the Court's intervention in the Defendants' investigation would interfere with the EWPD's ability to defend itself and ensure the credibility of its officers. See Doc. # 73. The Court further held that the Everitts had failed to demonstrate irreparable injury because they did not present any evidence that their speech was actually being chilled by the Defendants' actions. Id. Finally, the Court found the Plaintiffs' motion for a preliminary injunction moot in light of the Defendants' agreement to stay enforcement of Everitt's suspension until the conclusion of proceedings in this Court. Id.
On May 5, 2009, the Defendants filed the instant motion for summary judgment. See Doc. # 77. The Plaintiffs filed their opposition thereto on May 26, 2009. See Doc. # 78.
Subsequently, on June 17, 2009, the Court ordered the Defendants to show cause why default should not enter against them on the Plaintiffs' third claim for relief, which asserts that the Defendants retaliated against them for exercising their First Amendment right to petition the Court, due to their failure to either answer the Plaintiffs' Amended Complaint or move for summary judgment on that claim. See Doc. # 82. The Defendants' response to the order to show cause explained that they had failed to address this claim because counsel perceived that the Court's denial of the Plaintiffs' motion for emergency relief, which addressed claims and conduct identical to that set forth in their third cause of action, obviated the need to further address that aspect of the Amended Complaint. See Doc. # 87. The Defendants belatedly filed an answer to the Amended Complaint, and also filed a motion for leave to file a supplemental memorandum in support of their motion for summary judgment arguing that they are entitled to summary judgment on the Plaintiffs' third cause of action. The Court granted the Defendants' motion and permitted the filing of...
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