Yorzinski v. Imbert, 3:13-cv-01029 (MPS)

• Decision Date: 07 August 2014
• Docket Number: No. 3:13-cv-01029 (MPS),3:13-cv-01029 (MPS)
• Court: U.S. District Court — District of Connecticut
• Parties: HENRY J. YORZINSKI, JR, Plaintiff, v. JAMES IMBERT, et al., Defendants.

HENRY J. YORZINSKI, JR, Plaintiff, v. JAMES IMBERT, et al., Defendants.

No. 3:13-cv-01029 (MPS)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

August 7, 2014

MEMORANDUM OF DECISION

Plaintiff Henry J. Yorzinski, Jr. ("Plaintiff"), who proceeds pro se, brings this action for damages and other relief against New Haven Police Officer Jeffrey Fletcher ("Fletcher"), Federal Protective Service (FPS) Inspector James Imbert ("Imbert"), and private security supervisor Joseph Carlino ("Carlino") for an alleged violation of his Federal and state constitutional rights arising from his attempt to carry a firearm into the Giamo Federal Building in New Haven. Only Imbert and Carlino were served; therefore, the claim against Fletcher was dismissed [Dkt. #46] under Fed. R. Civ. P. 4(m) for failure to serve within 120 days of filing the Complaint. Imbert and Carlino have moved to dismiss under Rule 12(b)(6). Because Carlino, as a private actor, cannot be liable for Federal or state constitutional torts, his Motion to Dismiss [Dkt. #28] is GRANTED. Because Imbert is protected from any claim under the Second Amendment by the doctrine of qualified immunity, Imbert's Motion to Dismiss that claim is GRANTED. Because questions of fact remain as to some of Plaintiff's Fourth Amendment claims against Imbert, his Motion to Dismiss [Dkt. #34] is DENIED with respect to two of those claims and GRANTED with respect to the remaining Fourth Amendment claim. Because Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which allows certain constitutional tort actions to be brought against federal officials, does not authorize injunctive relief, Plaintiff's claims for injunctive relief are dismissed.

Factual Background

Plaintiff's Amended Complaint alleges the following facts. On August 19, 2011, while carrying a firearm, Plaintiff attempted to enter the Giamo Federal Building on Court Street in New Haven, Connecticut to apply for Social Security disability benefits. (Am. Compl. § C at 2.) The Court takes judicial notice that the Federal Building houses the local offices of various federal agencies, including the Social Security Administration (SSA).¹ Because he was carrying a firearm, Plaintiff was denied access to the building. (Id.) Plaintiff then "retuned [sic] to [his] vehicle (motorcycle) and stored [his] firearm." (Id.) Plaintiff does not describe how or where he stored his firearm outside the building. (See id.) He then re-entered the Federal Building, passed through the metal detector, and approached Imbert, at which time he was "placed under arrest" by Imbert. (Id.) At this point, Carlino "interrogated" him and "threatened [him] with immediate incarceration by [the New Haven Police Department], [five] years in a federal prison for violating [18 U.S.C. § 930], along with a 'comprehensive' search of [his] home and the confiscation of [his] firearm collection." (Id.)

The Amended Complaint refers to attached "Supporting Facts" and appends documents including Fletcher's New Haven Police Department incident report ("Fletcher Report") and an FPS report that appears to have been prepared by Imbert ("Imbert Report").² The Imbert Report states that when Plaintiff re-entered the building, he "became agitated[] and started ranting that his [S]econd [A]mendment rights were being violated by him not being able to bring his gun into the building, he became more outraged, and loud to the point [that] the others in the lobby were concerned." (Imbert Report at 2.) Imbert asked Plaintiff what type of firearm he had tried tobring into the building, to which Plaintiff responded that it was a "loaded and cocked" black Colt .45-caliber handgun. (Id.) When Plaintiff was asked where he had put the firearm, he responded, "off of your property[.]" (Id.)

After Plaintiff was "released" ten minutes later, he took the elevator to the SSA's office. (Am. Compl. § C at 2.) Plaintiff alleges that while he was in the SSA office, Imbert and Carlino left the Federal Building and walked "approximately 100 yards" to what they assumed was Plaintiff's motorcycle and conducted a search of the motorcycle. (Id.) Imbert and Carlino then found a firearm (Plaintiff does not specify where) and alerted the New Haven Police Department. (Id.)

The Imbert Report notes that while searching the immediate area of Plaintiff's motorcycle, Imbert recovered a Colt .45-caliber handgun "next to two air conditioning compressors stuffed into a potato chip bag." (Imbert Report at 2.) According to Fletcher's report, the gun contained a fully loaded magazine and one round in the chamber. (Fletcher Report at 3.)

Fletcher, "along with Imbert and Carlino," then went back inside the Federal Building and arrested Plaintiff while he was speaking with a Social Security agent. (Am. Compl. § C at 2.) Fletcher searched Plaintiff's person and informed Plaintiff that he would be issued a summons for reckless endangerment. (Id.) Fletcher then confiscated Plaintiff's Connecticut Permit to Carry Pistols and Revolvers (id.), and charged Plaintiff with violating Conn. Gen. Stat. § 53a-63 (reckless endangerment, a misdemeanor); § 29-37i ("[r]esponsibilities re storage of loaded firearms"), § 53a-217a (criminally negligent storage of a firearm, a Class D felony); and § 53a-180aa (first-degree breach of peace, a Class D felony) (Fletcher Report at 5-6). Plaintiff was later issued a United States District Court Violation Notice charging him with disorderly conduct, which carried a total fee of $175. (Am. Compl. § C at 3.)

Plaintiff alleges that the acts of each defendant were "intentional and inspired by malice" and have caused him emotional distress and the loss of (1) personal property, (2) his Connecticut pistol permit, and (3) "the Constitutional rights herein described." (Id.) In addition to damages, he seeks injunctive relief in the form of an order requiring each defendant to send a letter to the Connecticut Commissioner of Public Safety, or other appropriate authority, "explaining in detail their UNLAWFUL acts that resulted in the revocation of my permit and strongly recommending the reinstatement of the plaintiff's CT state pistol permit." (Id.)

DISCUSSION

Legal Standard

A motion to dismiss challenges the sufficiency of the complaint. On a motion to dismiss under Rule 12(b)(6), the court must determine whether the complaint states "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). The court accepts all of the complaint's factual allegations as true, but disregards those that are conclusory as well as any legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff must "plausibly suggest," not merely allege, that he is entitled to relief. Id. at 679-80. "[P]leadings of a pro se plaintiff must be read liberally and should be interpreted to 'raise the strongest arguments that they suggest.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

Plaintiff's Claims Against Carlino

Carlino moves to dismiss the claims against him, arguing that because he was a private citizen working for a private security firm during the events alleged in the Complaint, he cannot be held liable for violations of federal constitutional rights and that the pendent Connecticut claim against him should also be dismissed. The Court agrees.

The Court must first consider whether, during the events in question, Carlino was a private employee, because Bivens liability does not extend to private employees. See Minneci v. Pollard, 132 S. Ct. 617, 623 (2012). Plaintiff argues in his Memorandum of Law in Objection to Carlino's Motion to Dismiss [Dkt. #29-1] that because "FPS contract security guards are delegated authority by FPS to protect federal property," Carlino is an "agent of FPS" or a "federal agent." (Id. at 3.) While Plaintiff points out that the Fletcher Report lists Carlino as "Supervisor Dept. Homeland Security," (Id. at 4; Fletcher Report at 1), and Carlino does not directly address this fact in his brief, Plaintiff admits in his Motion to Deny Security of Costs [Dkt. #23] that Carlino was employed by a firm called "C and D Security." ("Carlino's legal costs are being covered by his employer at the time of the incurred liability (C and D Security).") (Emphasis added.) "Facts admitted by a party are judicial admissions that bind that party throughout the litigation." Hoodho v. Holder, 558 F.3d 184, 191 (2d Cir. 2009). See also Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994) ("A court can appropriately treat statements in briefs as binding judicial admissions of fact.")

Carlino states that his employer during the events alleged, C & D Enterprises, Inc., is indeed a private entity. (See Carlino's Br. [Dkt. #28-1] at 3.) A review of cases where C & D has been a party supports this conclusion. See, e.g., Logan v. SecTek, Inc., 632 F. Supp. 2d 179, 181-82 (D. Conn. 2009) (referring to "C & D Security Management, Inc." as "the federal government's new contractor" for security at Hartford's Cotter Federal Building); Dobson v. City and County of Denver, 81 F. Supp. 2d, 1080, 1082, 1082 n.3 (D. Colo. 1999) (referring to "C & D Enterprises, Inc. d/b/a/ C and D Bonded Security Service, Inc." as an entity employing security guards). The Court concludes that when Carlino allegedly violated Plaintiff's constitutional rights, he worked for a private firm, not a governmental entity, and was not a federal agent for purposes of Bivens liability. See Minneci, 132 S. Ct. at 623 (2012) (explainingthat the Court had previously rejected the argument that a private firm, "like a federal employee, is a federal agent."). As explained below, Carlino therefore cannot be liable for the federal constitutional torts Plaintiff alleges.

In Bivens, the United States Supreme Court recognized an implied federal cause of action for damages against individual federal agents arising...