Jill Kolton v. Stamford Police Department

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Superior Court of Connecticut.

Jill Kolton v. Stamford Police Department

FSTCV116008948S

Decided: December 27, 2013

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 104 and OBJECTION # 106

The plaintiff, Jill Kolton, commenced the present action by serving the defendants, Police Chief Brent Larabee, the Stamford Police Department, and the city of Stamford, with summons and complaint on March 22, 2011.1  In response to a request to revise, the plaintiff filed a revised complaint on July 19, 2013.   The revised complaint alleges the following facts.   The plaintiff was a victim of domestic violence in March 2005.   Her assailant was prosecuted and convicted.   In her vulnerable state after the domestic violence incident, police officer Donald Greer pursued a relationship with the plaintiff in a predatory manner.   Greer and the plaintiff started a relationship in 2005 in which Greer referred to the plaintiff as his mistress, a relationship “common in the police community, subject to an unwritten ‘code’ among other officers in the [Stamford Police] Department.”   The relationship was unhealthy from the commencement, and Greer became increasingly abusive, both physically and emotionally, as time went on.   The plaintiff finally reported Greer's threats and abusive behavior to the Stamford Police in March 2009, after which Greer was arrested and charged with disorderly conduct and threatening in the second degree.   The plaintiff filed the present case against the defendants, alleging, inter alia, negligence, recklessness, negligent infliction of emotional distress, intentional infliction of emotional distress, and violation of her constitutional rights, including equal protection, due process, and crime victim's rights under the state constitution.

On August 13, 2013, the defendants filed a motion to strike all counts against them.   The motion is accompanied by a memorandum of law.   The plaintiff filed a memorandum of law in opposition on October 10, 2013.   The court heard arguments at short calendar on October 15, 2015.   At short calendar, the court granted the motion to strike as to all the counts against the Stamford Police Department based on the agreement of the parties.   See Docket Entry No. 104.86.

Practice Book § 10–39(a) provides in relevant part that “[w]henever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   A motion to strike “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”   (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).  “In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).

The defendants argue that the court should strike all counts against them in the revised complaint on the grounds of governmental immunity and insufficiency of pleading.   In support of their motion, the defendants provide multiple arguments as follows.  (1) The plaintiffs fail to allege that Larrabee was personally involved because the factual allegations of his personal knowledge are conclusory.  (2) The governmental immunity doctrine bars all the negligence, recklessness, and intentional infliction of emotional distress claims because all of these counts implicate discretionary functions and do not invoke any exceptions to governmental immunity.  (3) The plaintiff's equal protection claim is insufficiently pleaded because it does not allege how she is treated differently from others similarly situated nor the existence of a municipal custom or policy.  (4) The plaintiff's due process claim insufficiently alleges either that the defendants' actions shock the conscience or the existence of a municipal custom or policy.  (5) There is no private right of action under Article XXIX of the Connecticut Constitution, and the alleged violations of this provision did not occur during a criminal prosecution.  (6) The claim of recklessness against Larrabee fails to allege reckless conduct that rises above mere negligence.   Finally, (7) the claim for intentional infliction of emotional distress against Larrabee fails to properly allege extreme and outrageous conduct.

In opposing the motion, the plaintiff counters all of the arguments made by the defendants.   Summarily, she argues that all of the counts and their respective elements are properly pleaded, including Larrabee's personal involvement.   The plaintiff further argues that the pleadings invoke the exceptions to governmental immunity and that governmental immunity is a special defense improperly raised on motion to strike.   In addition, the plaintiff argues that she does not allege a separate cause of action under Article XXIX of the Connecticut Constitution, but that she invokes the substantive rights of Article XXIX as a part of her due process claim.

The defendants first argue that the plaintiff's allegations of Larrabee's personal involvement are conclusory.   As previously stated, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, supra, 308 Conn. 349.   In contrast, “[i]f any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, supra, 219 Conn. 471.   In other words, a motion to strike must be denied where provable facts support a cause of action.  Santorso v. Bristol Hospital, supra, 349.

In the present case, the defendants argue that all of the counts in the revised complaint alleging Larrabee's personal involvement are based on conclusory statements.   In the revised complaint, the plaintiff uses the phrases “upon information and belief” and “knew or should have known” in describing Larrabee's personal involvement.   The phrase “upon information” implies that there is evidence to support the allegation.   Further, while the phrase “should have known” may be conclusory, this phrase is never in isolation;  it is always accompanied by an “or” statement that includes the allegation that Larrabee “knew” of certain facts.   Knowledge is something that may be proven with evidence.   Moreover, the complaint specifically alleges that although Greer did not formally report his relationship with the plaintiff to his superiors, he did inform his peers informally and the relationship was open and notorious.   Consequently, the complaint contains factual allegations of Larrabee's personal involvement that, if proven, support the causes action raised.

Next, the defendants argue that the counts alleging negligence, recklessness, and intentional infliction of emotional distress are barred by the doctrine of governmental immunity.  “General Statutes § 52–557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages ․ One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties.  General Statutes § 52–557n(a)(1)(A).  General Statutes § 52–557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law ․ Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society ․ In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Wisniewski v. Darien, 135 Conn.App. 364, 371–72, 42 A.3d 436 (2012).

The Supreme Court has “previously determined that governmental immunity must be raised as a special defense in the defendant's pleadings ․ Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10–50].”  Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).   On rare occasion, “there are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike.   Specifically, where it is apparent from the face of the complaint that the municipality was engaging in a [discretionary] governmental action ․ the defendant ․ may attack the legal sufficiency of the complaint through a motion to strike.”  (Internal quotation marks omitted.)  Coe v. Board of Education, supra, 301 Conn. 116 n.4. However, “the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder.”  Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010).   To this end, “[i]n the absence of a proper basis for determining whether the municipal employee was in the performance of a governmental duty, the complaint is not [subject to motion to strike] on the ground that any violation of the duties involved discretionary or supervisory functions ․ In the absence of such allegations ․ to establish the basis of the defendants' claim on [motion to strike], it is necessary to await the evidence which may be adduced upon trial.”  (Citations omitted;  internal quotation marks omitted.)  Fraser v. Henninger, 173 Conn. 52, 61, 376 A.2d 406 (1977).

Here, the revised complaint provides long lists of alleged acts and omissions on the part of the defendants in support of the claims for negligence, recklessness, and intentional infliction of emotional harm.   The defendants argue that these claims are subject to motion to strike because they are all based on discretionary functions involving the operation of a police department.   In their memorandum, the defendants make a broad, generalized argument that all of the acts and omissions listed in the complaint involve discretion.   By making such a sweeping argument, the defendants fail to provide a clear basis on which to establish that each individual act or omission raised in the pleading refers to a discretionary function.   Without such a clear basis, “it is necessary to await the evidence which may be adduced upon trial.”  (Internal quotation marks omitted.)  Id. Construing the complaint broadly in favor of the pleader, therefore, this case is not one of those rare instances where governmental immunity is properly raised on motion to strike;  it should instead be raised as a special defense.

The defendants next argue that the plaintiff has improperly pleaded her constitutional claims under 42 U.S.C. § 1983.  Section 1983 provides in relevant part that “[e]very 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 in an action at law, suit in equity, or other proper proceeding for redress ․” “To state a valid claim under § 1983, a plaintiff must establish:  (1) [that] the conduct complained of was committed by a person acting under color of state law;  and (2) [that] this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.”  (Internal quotation marks omitted.)  ATC Partnership v. Windham, 251 Conn. 597, 604, 741 A.2d 305 (1999), cert. denied, 530 U.S. 1214, 120 S.Ct. 2217, 147 L.Ed.2d 249 (2000).  “The United States Supreme Court has recently reiterated that in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated.”  (Internal quotation marks omitted.)  Arnone v. Connecticut, 90 Conn.App. 188, 201, 878 A.2d 347 (2005).   Here, the complaint alleges the plaintiff's rights were violated under the equal protection and due process clauses of the United States and Connecticut constitutions,2 and the victim's rights amendment of the Connecticut constitution.

“The [e]qual [p]rotection [c]lause of the [f]ourteenth [a]mendment to the United States [c]onstitution is essentially a direction that all persons similarly situated should be treated alike ․ A violation of equal protection by selective [treatment] arises if:  (1) the person, compared with others similarly situated, was selectively treated;  and (2) ․ such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person ․ Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class ․ the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials ․ The [United States] Supreme Court [has] affirmed the validity of such class of one claims [when] the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment ․ [T]he analytical predicate [of an equal protection claim] is a determination of who are the persons ․ similarly situated.”  (Citations omitted;  internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 218–19, 9 A.3d 347 (2010).   “Under either the prototypical equal protection or class of one analysis, the plaintiff's ․ complaint must identify and relate specific factual instances in which persons similarly situated were treated differently.”  (Emphasis added.)  Mercer v. Champion, 139 Conn.App. 216, 238, 55 A.3d 772 (2012).

In the present case, the revised complaint invokes equal protection both as a member of a class—gender and/or victims of domestic violence—and as a class of one.   The defendants challenge the equal protection pleading on the ground that it does not identify how others similarly situated were treated differently.   In her opposition brief, the plaintiff argues that the revised complaint sufficiently identifies others similarly situated when it references article XXIX of the Connecticut constitution, which provides for the rights of victims of crime.   In this way, the plaintiff argues in her brief that “the Constitution itself sets the standard and the ‘right’ or ‘proper’ treatment of similarly situated individuals.”   The pleading standard for an equal protection claim, however, is a factual standard, not a legal standard;  the law requires the complaint to “identify and relate specific instances [in which] persons situated similarly in all relevant aspects were treated differently.”   (Emphasis omitted;  internal quotation marks omitted.)  Brooks v. Sweeney, supra, 299 Conn. 219.   Here, the complaint only recites a legal standard of how crime victims ought to be treated instead of the required specific factual instances.   As a result, the complaint fails to meet the pleading standard for a cause of action under the equal protection clause of the federal and state constitutions.

“It is axiomatic that the due process clause not only guarantees fair procedures in any governmental deprivation of life, liberty, or property, but also encompasses a substantive sphere ․ barring certain government actions regardless of the fairness of the procedures used to implement them ․ Despite the important role of substantive due process in securing our fundamental liberties, that guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm ․ Rather, substantive due process has been held to protect against only the most arbitrary and conscience shocking governmental intrusions into the personal realm that our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society ․ Thus, substantive due process has been held to safeguard such intimate activities as marriage ․ contraception ․ education of children ․ and bodily integrity.”  (Citations omitted;  internal quotation marks omitted.)  ATC Partnership v. Windham, supra, 251 Conn. 605–06.   “Substantive due process is the embodiment of society's desire to prevent government from abusing [its] power, or employing it as an instrument of oppression ․ To that end, a claim of a violation of substantive due process must allege a level of executive abuse of power ․ which shocks the conscience.”  (Citation omitted;  internal quotation marks omitted.)  Id., 608.   In further analyzing substantive due process claims, Connecticut courts have adopted the state created danger theory of liability, which “requires conduct that rises to the level of conscience shocking and evidences the requisite degree of culpability, either deliberate indifference to harm or intent to harm.”  Aselton v. East Hartford, 277 Conn. 120, 142–43, 890 A.2d 1250 (2006).  “The meaning of deliberate indifference, in the context of state created danger ․ sets forth a stringent standard.   It has been described as equivalent to the concept of recklessness utilized in the criminal [context] ․ [requiring] that the [actor] have an actual, subjective appreciation of an excessive risk of serious harm to [the victim's] health or safety and that [the actor] consciously disregard[ed] that risk.”  (Internal quotation marks omitted.)  Id., 147.

In the present case, the complaint alleges that a code or policy existed among police officers that involved preying upon victims of domestic violence as mistresses.   The complaint further alleges that the defendants knew of this code or policy and deliberately chose to allow it to continue.   The defendants argue that these actions do not rise to a level of conscious shocking necessary to support a due process cause of action and that the complaint does not sufficiently allege the existence of a municipal policy.   The complaint, however, expressly pleads the existence of a municipal-condoned code or policy.   Further, whether such policy or customs rises to the level of conscience shocking is a question of fact outside of the standard of review on a motion to strike.   As a result, viewing the complaint in a manner most favorable to sustaining its legal sufficiency, the complaint lays out express and implied facts that, if provable, support a substantive due process cause of action.

The defendants argue that the constitutional provision providing rights to crime victims does not provide a private right of action and that the alleged violations of this provision did not occur during a criminal prosecution.   Article first, § 8(b), of the constitution of Connecticut, as amended by article twenty-nine of the amendments, provides in relevant part, “In all criminal prosecutions, a victim ․ shall have ․ [t]he right to be treated with fairness and respect throughout the criminal justice process ․ The general assembly shall provide by law for the enforcement of this subsection.”  “By its explicit terms, the victim's rights amendment contemplates additional implementing legislation to give effect to its provisions.”  State v. Gault, 304 Conn. 330, 340, 39 A.3d 1105 (2012).   While there are statutes providing for the enforcement of victims rights in criminal proceedings;  see, e.g., General Statutes § 54–201 et seq. (providing for victim services);  General Statutes § 46a–13b et seq. (establishing Office of the Victim Advocate);  there are no statutes providing for a private right of action under Article first, § 8(b), nor is there any appellate authority providing for such a cause of action.

In a recent Superior Court decision, however, the court denied a motion to strike a complaint alleging wrongful termination for, inter alia, the employee exercising her rights as a crime victim under Article first, § 8(b).  Drozdowski v. Smile Sensations, LLC, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No, CV–12–6014629–S (July 9, 2013, Povodator, J.) (56 Conn. L. Rptr. 483, 487–88).   The Drozdowski court found that the plaintiff could invoke her constitutional rights as a crime victim in the context of her claim for wrongful termination, reasoning that the recently amended Article first, § 8(b) provided “a reflection of a strong public policy with respect to victims' rights,” and that it “would seem to be sufficiently offensive to the strong public policy reflected in these constitutional provisions as to allow this claim [of wrongful termination] to proceed.”  Id., 488.

In the present complaint, the plaintiff invokes her constitutional rights as a crime victim in relation to her § 1983 claim.   The defendants argue that the complaint's invocation of the crime victims' rights provision seeks to establish an independent § 1983 claim based solely on Article first, § 8(b), and they rightly point out that there is no private right of action yet established under that provision.   In contrast, the plaintiff argues that the complaint invokes the crime victims' rights provision in the context of the substantive due process claim, providing the substantive rights that were violated.

On a motion to strike, “pleadings are to be construed broadly and realistically, rather than narrowly and technically”;  (internal quotation marks omitted) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012);  and “construed in favor of the [plaintiff].”  (Internal quotation marks omitted.)   Coe v. Board of Education, supra, 301 Conn. 117.   In thus examining the complaint broadly, the invocation of the victims' rights provision can be viewed as providing the substance of the plaintiff's due process claim because both constitutional provisions are invoked as a part of a single count alleging a cause of action under § 1983.   As a result, the complaint's citation of the crime victims' rights provision in the context of a substantive due process claim is akin to the Drozdowski case where the plaintiff cited the crime victims' rights provision in the context of a wrongful termination action, which the court upheld on motion to strike.  Drozdowski v. Smile Sensations, LLC, supra, 56 Conn. L. Rptr. 488.   Further, the alleged violations of these substantive rights occurred in connection with two criminal prosecutions, the first against the plaintiff's domestic abuse assailant and the other against Greer.   Accordingly, the complaint's invocation of the crime victims' rights provision in the context of a substantive due process claim is legally sufficient to state a claim upon which relief can be granted.

Next, the defendants argue that the complaint's claim of recklessness against Larrabee fails to allege reckless conduct that rises above mere negligence because the recklessness claim alleges roughly the same facts as the complaint's negligence claim against Larrabee.  “Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent.”  (Internal quotation marks omitted.)   Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003).  “It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Internal quotation marks omitted.)  Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).

In the recklessness count against Larrabee, the plaintiff alleges, inter alia, that Larrabee knew about Greer's predatory and abusive relationship with the plaintiff, that he condoned the code or policy of officers having such relationships with domestic violence victims, and that he did nothing to stop or prevent these things from happening.   The defendants argue that because the allegations in the recklessness count against Larrabee are markedly similar to the allegations in the negligence count against Larrabee, the recklessness is not legally sufficient.   Regardless of the similarities between the two counts, when “construed broadly and realistically, rather than narrowly and technically”;  (internal quotation marks omitted) Downs v. Trias, supra, 306 Conn. 92;  the recklessness count against Larrabee alleges facts that, if proven, could constitute “an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Internal quotation marks omitted.)  Elliott v. Waterbury, supra, 245 Conn. 415.   The recklessness count against Larrabee is, therefore, legally sufficient to state a claim.

Finally, the defendant argues that the count for intentional infliction of emotional distress fails to allege facts sufficient to support a finding that Larrabee's conduct was extreme and outrageous.  “In order for the plaintiff to prevail in a case for liability under ․ [intentional infliction of emotional distress], four elements must be established.   It must be shown:  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe ․ The threshold inquiry in an intentional infliction of emotional distress action is, therefore, whether the alleged behavior is sufficiently extreme and outrageous.   This high bar for distasteful behavior has been described as requiring conduct ․ so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”  (Citations omitted;  internal quotation marks omitted.)  Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 86–87, 63 A.3d 1011 (2013).

Here, as mentioned previously, the complaint alleges that Larrabee knew about Greer's predatory and abusive relationship with the plaintiff and about the code or policy of “unlawful and inappropriate relationships with victims of domestic violence,” but he did nothing to prevent these behaviors.   Contrary to the defendants' argument, this “case is one in which the recitation of the facts to an average member of the community [could] arouse his resentment against the actor, and lead him to exclaim, Outrageous!”  Id., 87.   Consequently, because “facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action [for intentional infliction of emotional distress] ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, supra, 219 Conn. 465, 471.

Accordingly, the court grants the motion to strike only as to the plaintiff's equal protection claims alleged against the defendants and denies it as to all other claims.

So Ordered.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

FOOTNOTES

1.  FN1. Donald Greer is also a named defendant, but he has not made an appearance in the case, nor is he a party to the motion in question.

2.  FN2. “The equal protection and due process clauses of the United States and Connecticut constitutions have the same meanings and the same limits.   Brunswick Corp. v. Liquor Control Commission, 184 Conn. 75, 82 n.4, 440 A.2d 792 (1981) ․” (Internal quotation marks omitted.)  Boulanger v. Old Lyme, 51 Conn.Sup. 636, 664, 16 A.3d 889 (2010).

Karazin, Edward R., J.T.R.

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