Russo v. Glasser

• Decision Date: 05 August 2003
• Docket Number: No. CIV.3:03CV370 (PCD).,CIV.3:03CV370 (PCD).
• Citation: 279 F.Supp.2d 136
• Court: U.S. District Court — District of Connecticut
• Parties: Nicholas O. RUSSO, Jr., Plaintiff, v. James GLASSER, Assistant U.S. Attorney, T. David Plourde, Assistant U.S. Attorney, Kevin Kline, Special Agent, FBI, and Marcus Brown, Diversionary Investigator, DEA, and United States of America Defendants.

279 F.Supp.2d 136

Nicholas O. RUSSO, Jr., Plaintiff, v. James GLASSER, Assistant U.S. Attorney, T. David Plourde, Assistant U.S. Attorney, Kevin Kline, Special Agent, FBI, and Marcus Brown, Diversionary Investigator, DEA, and United States of America Defendants.

No. CIV.3:03CV370 (PCD).

United States District Court, D. Connecticut.

August 5, 2003.

COPYRIGHT MATERIAL OMITTED

James S. Brewer, West Hartford, CT, for Nicholas O. Russo, Jr., plaintiff.

William A. Collier, U.S. Attorney's Office, Hartford, CT, for James Glasser, Asst USA Atty, T. David Plourde, Asst USA Atty, Kevin Kline, Special Agent, FBI, Marcus Brown, Diversionary Investigator, DEA, USA, defendants.

RULING ON DEFENDANTS' MOTION TO DISMISS [Doc. No. 17]

DORSEY, Senior District Judge.

On June 30, 2003, this Court granted Defendants' Motion to Dismiss [Doc. No. 17] absent opposition. Soon thereafter, the Court received Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss [Doc. No. 19], which was filed on June 30, 2003, dated June 20, 2003, and included a certification that it was mailed on June 27, 2003. Previously, this Court had granted at extension of time "nunc pro tunc," requiring that Plaintiff file his response on or before June 20, 2003. Notwithstanding Plaintiff's unexplained delinquent filing of his response or his failure to comply with this Court's Supplemental Order [Doc. No. 3], in the interest of justice this Court has construed Plaintiff's response [Doc. No. 19] as a Motion to Reconsider the Ruling granting Defendants' Motion to Dismiss [Doc. No. 20].

I. Background¹

Plaintiff has been employed as a police officer for the City of Hartford Police Department since 1981, was promoted to Detective in 1994, and was assigned to the Federal Violent Crimes Unit-Hartford ("FGTF") since June 1995. The FGTF is comprised of Federal Bureau of Investigation ("FBI") Agents and Hartford Police Officers (deputized U.S. Marshalls), and brings joint investigations/prosecutions by Federal and State law enforcement.

On or about 1997, Plaintiff, as a Hartford Police Officer and deputized U.S. Marshall, was ordered by John Durham, Deputy U.S. Attorney, to report to Defendants James Glasser and Kevin Kline to assist them with a police corruption probe including the theft of drugs, money, and weapons by Hartford Police Officers and Supervisors. During the times relevant to Plaintiff's complaint, Glasser was Assistant U.S. Attorney for the District of Connecticut (and at certain times Chief of the Criminal Division), and Kline was a Special Agent of the FBI. On or about July and September 1997, Plaintiff provided Defendants Glasser and Kline with information regarding such police corruption.

On or about September 1997, Defendants Glasser and Kline ordered Plaintiff to seek the aid of former Hartford Police Detective (who was then Inspector for the Connecticut Chief States Attorney) Stephen Kumnick. Plaintiff met with Kumnick on or about October 15, 1997. Shortly after this meeting Kumnick notified potential targets of the corruption probe, including Detective James Rovella, who then informed other subjects, including Detectives Robert Lawlor and Michael Edelwich and Sergeants Christopher Lyons and Steven Miele. On or about October 31, 1997, Lawlor, Lyons, and Edelwich met with Hartford Police Chief Joseph Croughwell, who immediately called Plaintiff and conveyed a physical threat regarding his involvement in the federal investigation of the Hartford Police Department. At this time Croughwell told Plaintiff that "I have two detectives here who want to kick your fucking ass," and ordered him to take a lie detector test regarding his involvement with the federal corruption investigation.

Plaintiff notified Kline of the threat and repeatedly asked for protection, but was rebuffed. Subsequently, Plaintiff became the subject of a criminal investigation, prosecution, and arrest for illegally obtaining a prescription pain killer (Tylenol 3). Kline and Glasser told their supervisor, John Durham, that Plaintiff had contacted Kumnick without authorization.

On September 17, 2002, and November 2, 2002,² Plaintiff alleges that Glasser and Kline, respectively, falsely testified about Plaintiff's involvement in the federal corruption investigation, and refused to answer questions, which ultimately thwarted Plaintiff's preparation of this lawsuit. On these dates, Plaintiff alleges that Defendant T. David Plourde, Assistant U.S. Attorney for the District of New Hampshire, improperly colluded with Glasser and Kline in their refusal to answer questions and false testimony.

Despite being recused from the Russo litigation, in September 2002 Glasser responded to discovery demands for FBI and U.S. Attorney records and personally redacted large portions of information.

Plaintiff alleges that during the investigation, Glasser and Kline learned of numerous acts of illegal conduct and civil rights violations, including information about a murder suspected to have been committed by Hartford Police Officers. Although Glasser and Kline knew of illegal drug possession by several members of the Hartford Police Department, including Sergeants Lyons and Miele and Detectives Lawlor and Edelwich, they did not investigate such possessions. Kline was aware of Lawlor and Edelwich's possession of over 150 bags of heroin, 25 bags of rock cocaine, cocaine, marijuana, glassine envelopes, lactose cutting agent, and other paraphernalia. Kline informed former Hartford Deputy Chief Jeffrey Flaherty that Flaherty's brother, a police officer in Middletown, Connecticut, was suspected of drug distribution and was observed entering and exiting a drug dealing establishment. Flaherty informed his brother of this contact. After drugs were found in Lawlor and Edelwich's possession, Chief Croughwell assigned them to the Federal Gang Task Force. Plaintiff alleges that despite using him as an informant and witness, Glasser and Kline took no action to protect him against physical and other threats made by Hartford Police Officers.

In Count One, which is a hodgepodge of claims, Plaintiff alleges a § 1983 violation against all Defendants. He alleges that the conduct of Glasser and Kline has resulted in a denial of access to the courts for him to bring the underlying claims of false arrest, unreasonable search, violation of substantive Due Process, invasion of privacy, and intentional infliction of emotional distress against Glasser, Kline, Plourde, and Brown. Count One also alleges that the conduct of Defendants denied Plaintiff his right to free speech and association and to seek redress from the government without retaliation as guaranteed to him by the First Amendment to the United States Constitution. Plaintiff alleges that Defendants deprived him of the privileges and immunities guaranteed to him as a United States citizen. He alleges that Defendants' actions were willful, intentional, and done in spite of their actual knowledge or reckless disregard for his constitutional rights. Count One alleges that Plaintiff has been irreparably harmed and publicly humiliated, and has suffered severe emotional harm and distress and other undisclosed physical injuries. Plaintiff further alleges that Defendants' actions constitute a denial of his substantive due process rights and his equal protection rights as guaranteed by the Fourteenth Amendment. Count One alleges the following injuries: loss of dignity, humiliation, and severe emotional suffering; loss of privacy within Plaintiff's home; anxiety, fear, and trauma; fear of physical attacks; lost income; and damage to his name and reputation.

Count Two alleges that Defendant Brown violated 42 U.S.C. § 1983 when he searched and seized Plaintiff's medical records without a warrant or other legal process, in violation of the Fourth Amendment.

Count Three alleges a claim of intentional infliction of emotional distress under the Federal Tort Claims Act against Defendant United States.³

Plaintiff seeks the following relief: (1) compensatory money damages in the amount of ten million dollars ($10,000,000); (2) punitive damages pursuant to Connecticut common law; (3) attorneys' fees and costs as provided by 42 U.S.C. § 1988 and any other applicable law; (4) punitive damages pursuant to 42 U.S.C. § 1983; (5) lost and future lost wages; and (5) such other relief the Court may deem appropriate.

II. Standard

A motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) is properly granted when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69 (2d Cir.2001) (internal quotation marks omitted). A motion to dismiss must be decided on the facts as alleged in the complaint. Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir.2001). All allegations are assumed to be true and are considered in a light most favorable to the non-movant. Manning v. Util. Mut. Ins. Co., 254 F.3d 387, 390 n. 1 (2d Cir.2001). "The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his or her claims." United States v. Yale New Haven Hosp., 727 F.Supp. 784, 786 (D.Conn.1990). In its review of a 12(b)(6) motion to dismiss, a court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken." Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir.1993).

III. Analysis

A. General Claims

1. Sovereign Immunity

Defendants argue that to the extent Plaintiff sues them in their official capacity, the suit is barred by sovereign immunity.

It is well settled that suits filed against federal government employees acting in their official capacities must be construed as suits against the United States. See Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct....