Giglio v. Derman, 3:05CV01114(DJS).

Citation560 F.Supp.2d 163
Decision Date19 June 2008
Docket NumberNo. 3:05CV01114(DJS).,3:05CV01114(DJS).
PartiesPatrick GIGLIO, Plaintiff, v. Nancy DERMAN, Robert Kearcher, Benjamin Quinones, Jr., Robert Bongiorno and Marsha Aleksunes, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)

John R. Williams, New Haven, CT, for Plaintiff.

Eleanor M. Mullen, Attorney General's Office, Hartford, CT, for Defendants.

MEMORANDUM OF DECISION

DOMINIC J. SQUATRITO, District Judge.

The Plaintiff, Patrick Giglio ("the Plaintiff) brings this action against the Defendants, Nancy Derman ("Derman"), Robert Kearcher ("Kearcher"), Benjamin Quinones ("Quinones"), Robert Bongiorno ("Bongiorno"), and Marsha Aleksunes ("Aleksunes") (collectively, "the Defendants"), pursuant to 42 U.S.C. § 1983, alleging a violation of his Fourteenth Amendment right to equal protection and alleging retaliation in violation of the First Amendment right against retaliation. Now pending before the Court is the Defendants' motion for summary judgment (dkt.# 27). For the reasons that hereafter follow, the Defendants' motion for summary judgment (dkt.# 27) is GRANTED.

I. LOCAL RULE 56(a) STATEMENT

Before setting forth the background facts of this case, the Court notes that the Plaintiff has failed to comply with Rule 56 of the Local Rules of Civil Procedure for the District of Connecticut ("D.Conn.L.Civ. R."). Local Rule 56(a) provides "[t]here shall be annexed to a motion for summary judgment a document entitled `Local Rule 56(a) 1 Statement,' which sets forth in separately numbered paragraphs ... a concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried." D. Conn. L. Civ. R. 56(a)(1). In addition,

[t]he papers opposing a motion for summary judgment shall include a document entitled `Local Rule 56(a)2 Statement,' which states in separately numbered paragraphs ... corresponding to the paragraphs contained in the moving party's Local Rule 56(a)l Statement whether each of the facts asserted by the moving party is admitted or denied.

D. Conn. L. Civ. R. 56(a)(2).

In a Local Rule 56(a) Statement, the party opposing summary judgment must also set forth, in a separate section, "Disputed Issues of Material Fact." Id. "All material facts set forth in [the moving party's Local Rule 56(a)] [Statement and supported by the evidence will be deemed admitted unless controverted by the statement required to be filed and served by the opposing party in accordance with Local Rule 56(a) 2." D. Conn. L. Civ. R. 56(a)(1). Pursuant to Local Rule 56(a),

[E]ach statement of material fact by a movant in a local Rule 56(a)(1) Statement, or by an opponent in a Local Rule 56(a)(2) Statement, and each denial in an opponent's Local Rule 56(a)(2) Statement, must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial.

D. Conn. L. Civ. R. 56(a)(3). "[F]ailure to provide specific citations to evidence in the record as required by this Local Rule may result in the court deeming certain facts that are supported by the evidence admitted in accordance with rule 56(a)(1)...." Id.

The Court finds that many of the Plaintiffs responses to the Defendants' Local Rule 56(a)(1) Statement are inadequate. To begin, paragraphs 68, 73, 79, 82, 90, 91, 99, 129, and 136 of the Plaintiffs Local Rule 56(a)(2) Statement consist of refusals to respond, or responses that neither deny nor admit the fact asserted. The Local Rule specifically demands each of the facts asserted be either admitted or denied. D. Conn. L. Civ. R. 56(a)(2). Moreover, these paragraphs fail to cite to affidavits or evidence. See D. Conn. L. Civ. R. 56(a)(3). Therefore, the Court deems admitted paragraphs 68, 73, 79, 82, 90, 91, 99, 129, and 136.

Concurrently, paragraphs 108 and 109 in the Plaintiffs Local Rule 56(a)(2) Statement contain no citations to evidence in the record. The lack of citation alone allows the Court to deem such paragraphs admitted.

Paragraphs 100 through 107 of the Defendants' Local Rule 56(a)(1) Statement each describe an undisputed factual interaction between Aleksunes and the Labor Relations Director. Next, paragraphs 108 and 109 of the Defendants' Local Rule 56(a)(1) Statement describe reasoning of the Labor Relations Director, the Agency Personal Administrator, and the Chief Operating Officer in "the final decision on termination." (Dkt.# 27, Pt. 2, ¶¶ 108-09.) In response, the Plaintiff denied paragraphs 108 and 109 because "it is obvious from the foregoing that defendant Aleksunes was an active and crucial participant in this decision-making process." See (Dkt.# 28, Pt. 1, ¶ 108.)

The purpose of the Local Rule 56(a) Statement is to help the Court determine the facts of a case, whereas the parties' legal arguments are properly submitted in the memorandum of law. It is therefore inappropriate to deny true and accurate statements of fact simply because the Plaintiff disagrees with the form presented. In other words, it is a fact that the Labor Relations Director, the Agency Personal Administrator, and the Chief Operating Officer made the final determination of termination as required by the terms of their employment. To dispute this fact based on the question of Aleksunes involvement is not an appropriate denial. This is especially true when considering the Defendants already have admitted in the preceding paragraphs that such involvement existed. Therefore, the Court deems paragraphs 108 and 109 admitted.

Finally, the Plaintiff attempts to make motions to strike in paragraphs 57, 105, 115, and 116 of the Plaintiffs Local Rule 56(a)(2) Statement. It is inappropriate for a party to make motions or legal arguments in a Local Rule 56(a) Statement. Such motions and legal arguments are to be submitted in a memorandum of law. See D. Conn. L. Civ. R. 56. Therefore, the Court deems paragraphs 57, 105, 115, and 116 admitted within the bounds of Local Rule 56(a).

In light of the previous discussion the following undisputed material facts are present in this action.

II. FACTS

In 1998, the State of Connecticut Department of Mental Health and Addiction Services ("DMHAS") employed the Plaintiff in the position of police officer; first at the Whiting Forensic Institute ("Whiting") and later at the Greater Bridgeport Community Mental Health Center ("GBCMHC"), which is a part of the Southwest Connecticut Mental Health System ("SWCMHS"). DMHAS operated both Whiting and GBCMHC, each of which had its own Public Safety Unit that was part of the DMHAS Public Safety Division. Police Officers employed by DMHAS act as "special policemen" pursuant to Connecticut General Statute § 29-18. All DMHAS police officers are required to proceed in a manner that is consistent with the SWCMHS use of force policy, which includes the Commissioner's policy on OC spray, the SWCMHS Safety Manual and other policies and procedures. Each DMHAS facility has its own policy on the use of force and these are modified to the Commissioner's policy surrounding the use of OC spray on patients and non-patients. Every police officer assigned to SWCMHS is expected to be familiar with the SWCMHS Safety Manual and the Plaintiff testified that he had read the manual. The Commissioners Policy prohibits verbal abuse, physical abuse, or any other abusive conduct towards clients and requires a thorough investigation of all reported suspicions of client abuse.

Here, the governing DMHAS policy sets different levels of force DMHAS police officers may use. The use of force policy begins with the lowest level of force and progresses up the continuum of force, from command presence, to verbal command, to open hand control, to Oleoresin Capsicum ("OC") spray and to the use of a baton. Additionally, the Division of Public Safety requires the reporting of alleged violations of DMHAS policies, procedures, regulations or work rules through the chain of command. On the date of the incident described below, Quinones held the lowest position of Acting Lieutenant of the GBCMHC Public Safety Unit. Bongiorno held the next highest position of Captain of the Public Safety Division. Aleksunes held the next highest position of Chief of the Division of Safety Services. Paul DiLeo ("DiLeo") held the highest position of DMHAS Chief Operating Officer, and James Pisciotta ("Pisciotta") held the highest position of SWCMHS Chief Executive Officer.

Between 2004 and 2005, Bongiorno, Derman, the Human Resources Officer, and Lieutenant Margaret Miner interviewed the Plaintiff and five other candidates for a promotion to the position of police sergeant at GBCMHC. The Plaintiff was promoted to the temporary sergeant position and at all relevant times herein was serving a working test period at SWCMHS. Corresponding to his transfer to SWCMHS, the Plaintiff attended an August 6, 2004 agency-wide orientation that provided him with several DMHAS Policies and procedures including the DMHAS Mission Statement, the DMHAS Work Rules/Reporting of Alleged Work Rule Violation, and the Commissioner's Policy Statement No. 29 on Client Abuse.

On September 24, 2004, Bongiorno sent an email to the lieutenants in charge of the DMHAS public safety units regarding the issue of OC spray. The email stated that "the rules of engagement remain the same: OC Spray should only be used on a client when the Officer feels that the situation is so dangerous, that imminent serious physical injury or death would result if OC was not employed." (Dkt.# 27, Pt. 3, Ex. E.) Bongiorno states that this email was consistent with the Commissioner's policy, Section C, Subsection 3(C) on OC spray and that it directed the lieutenants to post the email so that all officers and sergeants could read it.

On March 14, 2005, an admissions staff member, Jo-Ann Sumple ("Sumple"), called for police assistance at the Admissions Unit because a patient ("Patient") was trying to leave. The...

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