ORANE CORNISH JR v. TOWN OF BLOOMFIELD ET AL (2023)

RULING GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, AND RECOMMENDING THAT THE COMPLAINT BE PERMITTED TO PROCEED IN PART AND DISMISSED IN PART

On November 28, 2023, pro se plaintiff Orane M. Cornish, Jr. commenced this action against defendants Town of Bloomfield, Police Officer Kelsey Marschall, Police Officer Lebreck, and Police Chief Paul Hammick, arising from the plaintiff's arrest on September 22, 2020, and subsequent criminal prosecution. (See Doc. No. 1). More specifically, the plaintiff alleges that Officer Marschall falsely arrested and maliciously prosecuted him, despite her knowledge that, inter alia, the complaining victim—the plaintiff's mother—was not a credible witness. (See generally id.). The plaintiff also alleges that, during the course of his arrest, Officer Marschall placed him in excessively tight handcuffs. (See id.). The plaintiff contends that the defendants’ conduct violated his Fourth Amendment rights and caused him “harm and damages,” including eviction from his home and a resulting period of homelessness that persists “until present day.” (Id.).

On November 29, 2023, the Court (Dooley, J.) referred to the undersigned the plaintiff's Motion to Proceed In Forma Pauperis (“IFP”) (Doc. No. 2), as well as an initial review of the Complaint pursuant to 28 U.S.C. § 1915. (See Doc. No. 7). For the following reasons, the plaintiff's Motion to Proceed IFP (Doc. No. 2) is GRANTED, and the Court respectfully recommends that: (a) the plaintiff's false arrest claim be permitted to proceed as pleaded in the Complaint; (b) the plaintiff's malicious prosecution and excessive force claims be DISMISSED without prejudice to a newly filed Amended Complaint that plausibly alleges those claims; (c) any purported failure to investigate claim be DISMISSED with prejudice; and (d) all claims against defendants Town of Bloomfield, Hammick, and LaBreck be DISMISSED with prejudice.

I. LEGAL STANDARD

Section 1915 provides, in relevant part:

[A]ny court of the United States may authorize the commencement of any suit ․ without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor.

28 U.S.C. § 1915(a)(1). The same statute that authorizes the Court to grant in forma pauperis status to a plaintiff also contains a provision that protects against the abuse of this privilege. Subsection (e) provides that the Court “shall dismiss the case at any time if the court determines that ․ the action ․ (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A claim is “frivolous” if it lacks an arguable basis either in law or fact, or when a dispositive defense, such as lack of subject matter jurisdiction, clearly exists on the face of the complaint. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Patterson v. Rodgers, 708 F. Supp. 2d 225, 232 (D. Conn. 2010) (“In analyzing whether Plaintiff's claims are ‘frivolous,’ ‘fail to state a claim upon which relief may be granted,’ or barred by immunity, the Court necessarily determines whether it has subject matter jurisdiction over the action.”).

Courts are required to read pro se complaints “liberally,” such that they are “interpreted to raise the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted)); see also Thaxton v. Simmons, No. 10-CV-1318 (MAD) (RFT), 2012 WL 360104, at *7 (N.D.N.Y. Jan. 5, 2012) (“It is the Court's view that Plaintiff has barely nudged across the line from conceivable to plausible. Nevertheless, because we are bound to give the Plaintiff the benefit of every reasonable inference to be drawn from the allegations in the Complaint, we recommend allowing this claim to proceed.”) (citations omitted), report and recommendation adopted, No. 10-CV-1318 (MAD) (RFT), 2012 WL 360141 (N.D.N.Y. Feb. 2, 2012).

II. FINANCIAL AFFIDAVIT

The Court determines indigency within the meaning of Section 1915 by reviewing an applicant's assets and expenses as typically stated on a declaration or financial affidavit submitted with the motion to proceed IFP. As a general matter, applicants seeking IFP status are not required to “demonstrate absolute destitution.” Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (per curiam). Rather, they must establish that they cannot afford to pay for both the necessities of life and the costs of litigation. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948); accord Rosa v. Doe, No. 21-2628, 2023 WL 8009400, at *5 (2d Cir. Nov. 20, 2023) (“The in forma pauperis law is not meant to be a series of traps and travails for pro se litigants, nor does it aim to dismiss potentially meritorious arguments because of the particularities of federal practice.”). “The decision of whether to grant an application to proceed [IFP] rests within the sound discretion of the court.” Robert C. v. Kijakazi, No. 3:22-CV-120 (SRU), 2022 WL 2287600, at *1 (D. Conn. Feb. 10, 2022) (citing Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir. 1983)).

Here, the financial affidavit submitted in connection with the plaintiff's IFP application indicates that the plaintiff has been unemployed since 2020, and that, while he only has $15 in monthly obligations, he owes $5,000 in credit card debt, and is presently homeless. (See Doc. No. 2 at 4–5). As to any previous litigation, the plaintiff's affidavit does not indicate that he has ever filed another case in federal court. (See id. at 5). However, based on the Court's own review, it appears that the plaintiff has filed at least three previous lawsuits in this District. See Cornish v. Arrow Electronics, No. 3:18-CV-911 (KAD); Cornish v. Bloomfield Police Dept., et al., No. 3:18-CV-896 (VLB); Cornish v. Google, Inc., No. 3:15-CV-735 (JCH). This suggests that the plaintiff may not have been entirely forthcoming in his IFP application. (See Doc. No. 2 at p. 5 (“All prior cases must be listed.”)).¹ Notably, two of the IFP applications submitted in connection with the plaintiff's prior lawsuits were denied, and all three of the aforementioned cases were dismissed due to the plaintiff's failure to prosecute.² Notwithstanding these significant concerns, the Court finds that denying the plaintiff IFP status here would not “spare prospective defendants the inconvenience and expense of answering [a frivolous] complaint[ ],” but instead would prevent an “indigent litigant[ ] ․ meaningful access to the federal courts.” See Neitzke v. Williams, 490 U.S. 319, 324 (1989); see also Patterson, 708 F. Supp. 2d at 231 (“The Court has not found any case that has denied a non-prisoner in forma pauperis status based solely on his failure to answer questions regarding prior lawsuits.”). However, the plaintiff is advised that failure to include his previous lawsuits in any future Motion for Leave to Proceed IFP may result in the summary denial of any such application.

In light of the foregoing, the Court concludes that the plaintiff has adequately established his indigency, and an inability to pay the standard $402 civil case filing fee. (See id.). Accordingly, the Court hereby GRANTS the plaintiff's Motion to Proceed IFP.

III. MERITS OF THE COMPLAINT

Turning to the merits of the plaintiff's Complaint, as set forth herein, the Court finds as follows: (a) the Complaint adequately pleads a claim for false arrest against Officer Marschall; (b) the Complaint does not plausibly allege claims for malicious prosecution or excessive force; (c) the plaintiff cannot maintain any purported “failure to investigate” claim arising under Section 1983; and (d) the Complaint does not set forth any cognizable claims against defendants Town of Bloomfield, Hammick, and LaBreck. The Court further emphasizes that the plaintiff's false arrest and excessive force claims are timely, and otherwise finds good cause to afford the plaintiff leave to file an Amended Complaint that adequately sets forth his malicious prosecution and excessive force claims against Officer Marschall.

A. Factual Background

The plaintiff alleges that, on September 22, 2020, he was residing with his mother (“Ms. Laidley”) and his stepbrother Jamal in Bloomfield, Connecticut. (Doc. No. 1 at 2). According to the plaintiff, Ms. Laidley was “in poor physical and mental health,” and Jamal was likewise “engaged in troubling and violent behaviors that caused [the plaintiff] concern for his safety.” (Id.). Earlier in 2019 and 2020, the plaintiff had reported his concerns regarding Jamal's behavior to “the authorities” and “cooperated fully with the police in addressing these concerns.” (Id. at 3). At some time prior to the incident that gives rise to this case, Officer Marschall and another female officer responded to a 911 call placed by Ms. Laidley.³ (Id.). According to the plaintiff, Ms. Laidley informed the officers that she wanted the plaintiff removed from her home because he “spilt the milk” and “has money, he will not give me.” (Id.). The plaintiff further alleges that Ms. Laidley acknowledged to the responding officers, including Officer Marschall, that the plaintiff “helped take care of her and had not behaved aggressively toward her.” (Id. at 4).

The plaintiff alleges that on September 22, 2020, he was attacked by Jamal and Ms. Laidley, who bit the plaintiff on the shoulder. (Id.). Following the attack, the plaintiff “went outside” and “distanced himself from Jamal and Ms. Laidley,” who the plaintiff believed “were suffering from psychological distress.” (Id.). Ms. Laidley again summoned police officers to the home. (Id.). When Officer Marschall arrived, the plaintiff “described being attacked by Ms. Laidley and Jamal,” and even showed Officer Marschall “where Ms. Laidley bit him on the back.” (Id.). Nevertheless, the plaintiff alleges that he declined to press charges against Ms. Laidley and Jamal, and was instead arrested by Officer Marschall for “threatening and disorderly conduct.” (Id.). The plaintiff alleges that he should not have been arrested, and that Officer Marschall “knew or should have known that Ms. Laidley was not a credible witness.” (Id. at 4–5). The plaintiff further contends that Police Chief Paul Hammick initially refused to acknowledge the plaintiff's prior complaints about Jamal's threatening behavior and otherwise “investigate the situation formally” (id. at 5), and that Officer Marschall and Officer LaBreck did not properly archive the exculpatory body camera footage of the plaintiff's arrest (id. at 8–9).

As a consequence of his arrest, the plaintiff contends that he was subjected to a protective order whereby he could not access “his computer/machine repair and programming work.” (Id. at 4). The plaintiff alleges that the protective order was Officer Marschall and Jamal's idea, and “was created so that [Jamal] could gain control of the garage and office space without the proper eviction process.” (Id. at 6). The protective order resulted in the plaintiff being homeless from the date of his arrest “until present day,” insofar as “no landlords would grant [the plaintiff] residency.” (Id. at 8). The plaintiff alleges that his criminal charges were “disposed of” in April 2022, “by entry of a nolle prosequi.” (Id. at 9).

The plaintiff's Complaint explicitly alleges three causes of action, arising under 42 U.S.C. § 1983 (“Section 1983”): (1) false arrest, arising from the plaintiff's arrest on September 22, 2020; (2) malicious prosecution, stemming from the plaintiff's resulting criminal prosecution and the “unlawful actions” committed by Officer Marschall; and (3) excessive force, arising from Officer Marschall's handcuffing of the plaintiff on September 22, 2020. (Id. at 9–11). The Court also construes the plaintiff's Complaint as potentially alleging a “failure to investigate” claim arising under Section 1983, stemming from the officers’ failure to acknowledge and/or credit the plaintiff's prior reports, improper handling of body camera footage, and the related decision not to criminally charge either Ms. Laidley or Jamal. (See id. at 3–6).

B. False Arrest

The Court first finds that the Complaint adequately alleges a false arrest claim against Officer Marschall. “In order to establish a [Section] 1983 false arrest claim based on the Fourth Amendment right to be free from unreasonable seizures, a plaintiff must show: (1) the defendant intentionally arrested him or had him arrested; (2) the plaintiff was aware of the arrest; (3) there was no consent for the arrest; and (4) the arrest was not supported by probable cause.” Hernandez v. Holden, No. 3:21-CV-1505 (SALM), 2021 WL 5325905, at *1–2 (D. Conn. Nov. 16, 2021) (citing Goff v. Chivers, No. 3:15-CV-722 (SALM), 2017 WL 2174404, at *6 (D. Conn. May 17, 2017)). Moreover, “[u]nder both Connecticut law and Section 1983, a plaintiff must establish that the prosecution terminated in his or her favor to state a claim of false arrest/false imprisonment.” Charles v. Johnson, No. 3:13-CV-218 (MPS), 2015 WL 4509405, at *3 (D. Conn. July 24, 2015). “An officer has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006).

Here, the Complaint sets forth facts plausibly alleging that the plaintiff was intentionally arrested without his consent on September 22, 2020, and that his resulting criminal prosecution was terminated in his favor in April 2022, via entry of a nolle prosequi. See Spak v. Phillips, 857 F.3d 458, 463 (2d Cir. 2017) (“as a general matter a nolle prosequi constitutes a ‘favorable termination’ for the purpose of determining when a Section 1983 claim accrues”); see also Jackson v. Waterbury Police Dept., No. 3:11-CV-642, 2015 WL 5251533, at *7 (D. Conn. Sept. 8, 2015) (“Connecticut courts have generally determined ‘that a nolle prosequi satisfies the favorable termination element as long as the abandonment of the prosecution was not based on an arrangement with the defendant” (e.g., a plea bargain)) (quoting Roberts v. Babkiewicz, 582 F.3d 418, 421 (2d Cir. 2009).⁴

While probable cause may generally be established on the basis of information received by law enforcement from a complaining victim, that probable cause can be vitiated when the circumstances raise doubts as to that person's veracity. Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014). The plaintiff alleges that Officer Marschall lacked probable cause based on Ms. Laidley's witness statement, which was inconsistent with her own prior statements to Officer Marschall, as well as the plaintiff's earlier reports regarding Ms. Laidley and Jamal's concerning behavior. (Doc. No. 1 at 3–5). More specifically, the plaintiff alleges that he “showed defendant Marschall where Ms. Laidley bit him on the back,” and that Ms. Laidley had also previously admitted to Officer Marschall that the plaintiff “had not behaved aggressively toward her despite an earlier 911 call to the contrary.” (Id. at 4). Taken as true, these allegations sufficiently raise doubts as to Ms. Laidley's veracity, and therefore plausibly allege that Officer Marschall lacked probable cause to arrest the plaintiff on the basis of Ms. Laidley's witness statement.

Accordingly, the Court finds that the Complaint adequately alleges a false arrest claim against Officer Marschall, and respectfully recommends that the plaintiff be permitted to proceed on that claim as pleaded in the Complaint.

C. Malicious Prosecution

The Complaint does not set forth sufficient factual allegations in support of the plaintiff's malicious prosecution claim under Section 1983. To prevail on a Section 1983 claim of malicious prosecution, the plaintiff “must show a violation of his rights under the Fourth Amendment, and must establish the elements of a malicious prosecution claim under state law.” Manganiello v. City of New York, 612 F.3d 149, 160–61 (2d Cir. 2010). “In Connecticut, the elements of a malicious prosecution claim are that (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice.” Harvey v. Town of Greenwich, No. 3:17-CV-1417 (SRU), 2019 WL 1440385, at *8 (D. Conn. Mar. 31, 2019) (internal quotations omitted). Additionally, to state a malicious prosecution claim under Section 1983, it is well-established that “a plaintiff must also plead that he suffered a post-arraignment liberty restraint sufficient to implicate his Fourth Amendment rights.” Id.

Here, the Court cannot find that the allegations set forth in the plaintiff's Complaint are sufficient to state a malicious prosecution claim against Officer Marschall under Section 1983. As a threshold matter, the Court finds that the plaintiff has plausibly alleged facts sufficient to make out a malicious prosecution claim under state law. See Harvey, 2019 WL 1440385 at *8. Indeed, the Complaint plainly contends that Officer Marschall initiated a criminal proceeding against the plaintiff by virtue of his arrest on September 22, 2020, and further alleges that on or about April 2022, the plaintiff's criminal proceedings were “disposed of by entry of a nolle prosequi.” See Spak, 857 F.3d at 463. Moreover, as described supra Point III(B), the Complaint plausibly alleges that Officer Marschall lacked probable cause to arrest the plaintiff on September 22, 2020 and, by extension, initiate the plaintiff's resulting criminal prosecution. That same want of probable cause also satisfies the requisite “malice” element. See Brown v. Aybar, 451 F. Supp. 2d 374, 385 (D. Conn. 2006) (“malice can be inferred from a want of probable cause.”).

Nevertheless, to state a malicious prosecution claim under Section 1983, the plaintiff is also required to plead that he suffered a post-arraignment liberty restraint. See Harvey, 2019 WL 1440385 at *8. The plaintiff has failed to do so. Indeed, the Complaint is devoid of any allegations suggesting that the plaintiff was either arraigned, or that he suffered a resulting deprivation of liberty. See, e.g., Wright v. Stephens, No. 3:17-CV-1499 (MPS), 2018 WL 3241352, at *2 (D. Conn. July 3, 2018) (dismissing malicious prosecution claim when, as here, the complaint only alleged the date on which the plaintiff was arrested, and the date the prosecuting attorney nolled the plaintiff's charges). To be sure, it is entirely possible that the plaintiff made various post-arraignment court appearances in connection with his criminal prosecution in the 19 months between his arrest and the eventual entry of a nolle prosequi, and that those appearances suffice to demonstrate a post-arraignment liberty restraint. See Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003) (“the requirements of attending criminal proceedings and obeying the conditions of bail suffice” to establish a post-arraignment restraint); see, e.g., Willis v. City of New York, No. 12-CV-5259 (RA), 2015 WL 556884, at *8 n.9 (S.D.N.Y. Feb. 9, 2015) (finding a liberty restraint where the plaintiff “was required to appear in court twice: at his initial arraignment and at the later hearing date, during which the charge was dismissed”). Nevertheless, the plaintiff does not expressly set forth any such allegations, and even in liberally construing this pro se plaintiff's Complaint, the Court is neither willing nor permitted to make any such inference at this juncture. See Wright, 2018 WL 3241352, at *3 (declining to “conclude that [the plaintiff's] deprivation of liberty ․ occurred after his arraignment because he does not allege when, if at all, his arraignment occurred”).

In light of the foregoing, the Court respectfully recommends that the plaintiff's malicious prosecution claim be DISMISSED without prejudice to a newly filed Amended Complaint which plausibly alleges that the plaintiff suffered a post-arraignment deprivation of liberty as a consequence of his criminal prosecution.

D. Excessive Force

The Court similarly finds that the Complaint fails to plausibly allege a claim for excessive force arising from the plaintiff's tight handcuffing. “Because the Fourth Amendment protects against unreasonable seizures, it has long been recognized that the Fourth Amendment is violated if the police use excessive force against a free person for the purpose of arresting or restraining his or her freedom of movement.” Est. of Devine v. Fusaro, 2016 WL 183472, at *4 (D. Conn. Jan. 14, 2016), aff'd, 676 Fed. App'x 61 (2d Cir. 2017) (citing Graham v. Connor, 490 U.S. 386 (1989)). “Although handcuffs must be reasonably tight to be effective, overly tight handcuffing can constitute excessive force.” Case v. City of New York, 233 F. Supp. 3d 372, 385 (S.D.N.Y. 2017). “In determining whether handcuffing rises to the level of a Fourth Amendment violation, courts consider: (1) whether the handcuffs were unreasonably tight; (2) whether the defendants ignored the individual's complaints about her handcuffs; and (3) the degree of injury to the individual's wrists.” Pal v. Canepari, No. 3:20-CV-13 (MPS), 2023 WL 2712371, at *14 (D. Conn. Mar. 30, 2023).

The plaintiff alleges that Officer Marschall “handcuffed [the plaintiff] excessively tightly, causing [the plaintiff] great pain in his wrists.” (See Doc. No. 1 at 6). Later, the plaintiff alleges that his handcuffing was “more than a de minimus [sic] use of force,” and that he “suffered a compensable injury.” (Id. at 11). Notably, the Complaint does not allege that Officer Marschall ignored complaints about the tightness of the plaintiff's handcuffs, nor does it otherwise set forth the extent of the plaintiff's “compensable injury,” beyond broad allegations of wrist pain. See Armstrong v. Martocchio, No. 3:18-CV-580 (RMS), 2021 WL 1723243, at *11 (D. Conn. Apr. 30, 2021) (dismissing excessive force claim where the plaintiff did not complain of any injury caused by the handcuffs, request that they be loosened, or otherwise present any evidence of injury to her wrists); Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 469 (S.D.N.Y. 2008) (“if the application of handcuffs was merely uncomfortable or caused pain, that is generally insufficient to constitute excessive force.”); cf. Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015) (finding a viable excessive force claim where the plaintiff alleged that he did make verbal complaints, repeatedly asked that the handcuffs be loosened, complained that the handcuffs were “really tight” and “really hurt,” and showed police officers his “really discolored,” “really swollen” hands).

Accordingly, on balance, the Court cannot find that the Complaint adequately sets forth an excessive force claim against Officer Marschall based on her handcuffing of the plaintiff on September 22, 2020. As such, the Court respectfully recommends that the plaintiff's excessive force claim be DISMISSED without prejudice to a newly filed Amended Complaint which plausibly alleges that the plaintiff's handcuffing rose to the level of a Fourth Amendment violation.

E. Failure to Investigate

The plaintiff does not expressly set forth a purported “failure to investigate” claim. Nevertheless, the Complaint contains numerous allegations pertaining to the defendants’ refusal to acknowledge or act on the plaintiff's prior complaints about Jamal, as well as their failure to archive certain body camera footage related to the plaintiff's arrest. (Doc. No. 1 at 5, 9). Notwithstanding these allegations, it is well-established in this Circuit that there is no cognizable claim arising under Section 1983 for an alleged failure to investigate. See Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973) (“in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another”); Ying Li v. City of New York, 246 F. Supp. 3d 578, 633 (E.D.N.Y. 2017) (“failure to pursue a particular investigative path does not give rise to an independent due process claim apart from claims of false arrest, malicious prosecution, or violation of right to a fair trial.”); McCaffrey v. City of New York, No. 11-cv-1636, 2013 WL 494025, at *5 (S.D.N.Y. Feb. 7, 2013) (“[A] ‘failure to investigate’ is not independently cognizable as a stand-alone claim.”). Thus, the Court respectfully recommends that any purported failure to investigate claim be DISMISSED with prejudice.⁵

F. Defendants Hammick and LeBreck

The Court further finds that the Complaint does not adequately allege the personal involvement of Chief Hammick and Officer LaBreck. “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotations omitted). “Personal involvement may be established by a showing of direct participation, that is, ‘personal participation by one who has knowledge of the facts that rendered the conduct illegal,’ or indirect participation ‘such as ordering or helping others to do the unlawful acts.’ ” Johnson v. Fallon, No. 3:07-CV-605 (SRU), 2009 WL 513733, at *3 (D. Conn. Feb. 10, 2009) (quoting Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001)).

Here, while the large majority of the plaintiff's allegations pertain to Officer Marschall and her involvement in the plaintiff's arrest and subsequent prosecution, the Complaint also names Police Chief Paul Hammick and Police Officer LaBreck as defendants. More specifically, the Complaint alleges that Chief Hammick initially refused to acknowledge the plaintiff's prior complaints about Jamal's threatening behavior and otherwise “investigate the situation formally” (Doc. No. 1 at 5), and that Officer LaBreck was involved in the failure to properly archive the body camera footage of the plaintiff's arrest (id. at 9). Notably, the Complaint does not allege facts suggesting that either Chief Hammick or Officer LaBreck played any role in the plaintiff's arrest or prosecution, or in his handcuffing. Indeed, the Complaint explicitly sets forth these causes of action as against Officer Marschall only. (See id. at 9–10). As such, Chief Hammick and Officer LeBreck's personal involvement in the facts underlying this case appears to be limited to the plaintiff's implied “failure to investigate” claim, which, as described supra point III(E), is subject to dismissal with prejudice. Accordingly, the Court likewise respectfully recommends that Chief Hammick and Officer LaBreck be DISMISSED as defendants in this case, with prejudice.

G. Defendant Town of Bloomfield

The Complaint similarly fails to set forth any factual allegations supporting a Section 1983 claim against the Town of Bloomfield. “Undoubtedly, municipalities themselves are subject to suit under Section 1983.” Ortiz v. Bridgeport Police Dep't, No. 3:14-CV-1614 (CSH), 2017 WL 2818980, at *3 (D. Conn. June 29, 2017) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978)). However, a municipality cannot be held liable under Section 1983 for an injury inflicted solely by its employees or agents. Monell, 436 U.S. at 694. Rather, “[a] plaintiff seeking to recover for a constitutional violation against a municipality ․ must instead demonstrate that ‘the municipality was the moving force behind the injury alleged.’ ” Chiaravallo v. Middletown Transit Dist., 561 F. Supp. 3d 257, 286–87 (D. Conn. 2021) (quoting Agosto v. New York City Dept. of Education, 982 F.3d 86, 98 (2d Cir. 2020). More precisely, “a plaintiff must establish that the municipality violated a federally protected right through (1) municipal policy, (2) municipal custom or practice, or (3) the decision of a municipal policymaker with final policymaking authority.” Id. at 287 (quoting Zherka v. DiFiore, 412 F. App'x 345, 348 (2d Cir. 2011)).

Here, the Complaint does not set forth any allegations relating to the existence of an official Town of Bloomfield municipal policy or its equivalent, and therefore necessarily fails to further demonstrate that any such policy was the moving force behind the underlying constitutional violations. In fact, if anything, the allegedly unlawful conduct committed by the individual defendants stemmed from their failure to adhere to various departmental policies regarding proper investigatory protocol, such as the preservation of body camera footage. (See Doc. No. 1 at 5–6). Moreover, other than being identified as a defendant, the Complaint itself does not specifically set forth any cause of action against the Town of Bloomfield. For the foregoing reasons, the Court respectfully recommends that the Town of Bloomfield be DISMISSED as a defendant in this case, with prejudice.

H. Timeliness of the Plaintiff's Claims

The plaintiff's false arrest and excessive force claims appear to be timely in light of Governor Lamont's Executive Order 7G, which suspended Connecticut statutes of limitations between March 2020 and March 2021, in response to the COVID-19 pandemic.

Section 1983 contains no federal statute of limitations, and as such, in determining the timeliness of a claim brought pursuant to Section 1983, courts borrow the “most analogous” state statute of limitations. Board of Regents v. Tomanio, 446 U.S. 478, 488 (1980). “The statute of limitations for claims in Connecticut under [S]ection 1983, which courts borrow from Connecticut's personal injury statute, is three years.” Connelly v. Komm, No. 3:20-CV-1060 (JCH), 2021 WL 5359738, at *3 (D. Conn. Nov. 16, 2021) (citing Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir. 1994)); see also Conn. Gen. Stats. § 52-577.

The plaintiff's false arrest and excessive force claims each accrued on September 22, 2020, the date of the plaintiff's arrest.⁶ See Harvey, 2019 WL 1440385 at *7 (“a plaintiff's false arrest claim begins accruing at the time of arrest, or at the time the plaintiff was otherwise held pursuant to legal process.”); Traore v. Police Off. Andrew Ali Shield No. 30757, No. 14-CV-8463 (ER), 2016 WL 316856, at *5 (S.D.N.Y. Jan. 26, 2016) (“A Section 1983 claim of excessive force accrues on the date when the force occurred.”). The plaintiff's Complaint was not filed until November 28, 2023. As such, his claims for false arrest and excessive force appear untimely on their face, because they were brought outside of the relevant three-year period.⁷ However, the Court acknowledges that those claims are not barred by the statute of limitations, in light of Governor Lamont's suspension of Connecticut statutes of limitations between March 2020 and March 2021, in response to the COVID-19 pandemic.⁸

Following Executive Order 7G, courts in this Circuit—and in this District—have consistently found that executive orders enacted in response to the COVID-19 pandemic toll borrowed state statutes of limitations for the purposes of a Section 1983 claim. See, e.g., Connelly v. Komm, No. 3:20-CV-1060 (JCH), 2021 WL 5359738, at *4 (D. Conn. Nov. 16, 2021); Bonilla v. City of New York, No. 20-CV1704 (RJD) (LB), 2020 WL 6637214, at *3 (E.D.N.Y. Nov. 12, 2020). The Court sees no reason to depart from the aforementioned de facto rule, and finds that Executive Order 7G tolls any claims brought under Section 1983. Accordingly, as the plaintiff's false arrest and excessive force claims accrued while Connecticut statutes of limitations were suspended, it follows that the three-year limitations period on those claims did not begin to run until after the suspension was lifted, in March 2021. Therefore, the plaintiff's false arrest and excessive force claims are timely insofar as they brought prior to March 2024.

I. Leave to Amend

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a party shall be given leave to amend “when justice so requires.” However, “[l]eave to amend, though liberally granted, may properly be denied for: undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (internal quotation marks omitted). Here, for the reasons articulated above, the Court finds good cause to afford the plaintiff with another opportunity to plausibly allege his claims for malicious prosecution and excessive force. Conversely, the Court finds that amendment of the Complaint to either assert a “failure to investigate” claim, or assert claims against the Town of Bloomfield, Chief Hammick, or Officer LaBreck, would be futile.

IV. CONCLUSION

For the reasons stated above, the plaintiff's Motion to Proceed In Forma Pauperis (Doc. No. 2) is GRANTED. The Court further recommends that: (a) the plaintiff's false arrest claim be permitted to proceed as pleaded in the Complaint; (b) the plaintiff's malicious prosecution and excessive force claims be DISMISSED without prejudice to a newly filed Amended Complaint that plausibly alleges those claims; (c) any purported failure to investigate claim be DISMISSED with prejudice; and (d) defendants Town of Bloomfield, Hammick, and LaBreck be DISMISSED with prejudice.

This is a recommended ruling. See Fed. R. Civ. P. 72(b)(1). Any objections to this recommended ruling must be filed with the Clerk of the Court within fourteen (14) days of being served with this order. See Fed. R. Civ. P. 72(b)(2). Any party receiving notice of an order or recommended ruling from the Clerk by mail shall have five (5) additional days to file any objection. See D. Conn. L. Civ. R. 72.2(a). Failure to timely object will preclude appellate review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72 6(a), 6(e); D. Conn. L. Civ. R. 72.2; Small v. Secretary of H.H.S., 892 F.2d 15 (2d Cir. 1989) (per curiam); FDIC v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995).

The plaintiff has three options in responding to this Recommended Ruling.

First, should the plaintiff disagree with the recommendations set forth in this Ruling, he must file an objection within fourteen (14) days of being served herewith. See Fed. R. Civ. P. 72(b)(2).

Second, should the plaintiff choose not to object to this Recommended Ruling and if the Court (Dooley, J.) decides to adopt the Recommended Ruling, he may proceed on the Complaint as written, but without any malicious prosecution, excessive force, or “failure to investigate” claims, and without any claims against the Town of Bloomfield, Chief Hammick, or Officer LaBreck. If the plaintiff elects to pursue this option, he is directed to file a Notice on the docket by December 29, 2023, requesting to proceed only on the Section 1983 claim for false arrest against Officer Marschall, as set forth in the Complaint. Upon the filing of such a Notice, the Court will enter a Scheduling Order for service of the Complaint, discovery, and other applicable deadlines.

The last option available to the plaintiff is that he may decide to try to proceed on his false arrest claim, as well as the malicious prosecution and excessive force claims that the Complaint fails to adequately articulate. Under those circumstances, the plaintiff must file an Amended Complaint on or before January 15, 2024 which repeats the false arrest claim already alleged in the initial Complaint, but also sets forth plausible malicious prosecution and excessive force claims, consistent with this Recommended Ruling.

To be sure, if the plaintiff elects to file an Amended Complaint, that pleading must comply with the Federal and Local Rules of Civil Procedure. It must be captioned “Amended Complaint,” and will completely supersede (that is, replace) the current Complaint. Before filing any Amended Complaint, the plaintiff must carefully review this Recommended Ruling and ensure that any Amended Complaint addresses the deficiencies in the malicious prosecution and excessive force claims identified herein. The Court will review the Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). If the Amended Complaint fails to state a claim for which relief may be granted as to any claim already reviewed by the Court, such claims may be dismissed with prejudice upon review under 28 U.S.C. § 1915(e)(2)(B).

Dated at New Haven, this 15th day of December 2023.

FOOTNOTES

1.   Based on the Court's review, since the filing of the instant lawsuit, the plaintiff has also filed another two lawsuits: Cornish v. Town of Bloomfield, et al., 3:23-CV-1587 (KAD), and Cornish v. Guardian Asset Management, 3:23-CV-1612 (SVN).

2.   The IFP applications that were denied in the plaintiff's prior lawsuits failed to include sufficient information establishing that the plaintiff was unable to pay the filing fee. See Cornish v. Arrow Electronics, No. 3:18-CV-911 (KAD) (Doc. No. 8); Cornish v. Bloomfield Police Dept., et al., No. 3:18-CV-896 (VLB) (Doc. No. 10). By contrast, the instant IFP application includes much of the information that was missing from the plaintiff's prior, insufficient IFP applications. (See Doc. No. 2).

3.   Based on the plaintiff's allegations, it is not fully clear to the Court whether this initial interaction with defendant Marschall took place in April 2020, or earlier in the day on September 22, 2020.

4.   The Complaint does not affirmatively allege or otherwise indicate whether the plaintiff's nolle prosequi was the result of an arrangement with the government. Nevertheless, given the general rule that a nolle prosequi satisfies the favorable termination element, the Court finds that at this nascent initial review stage, the plaintiff has plausibly alleged the favorable termination of his criminal proceedings. Indeed, the Supreme Court recently determined that, at least for the purposes of a Section 1983 malicious prosecution claim, a plaintiff need only show that his prosecution ended without a conviction. See Thompson v. Clark, 596 U.S. 36, 39 (2022).

5.   The Court further notes that a failure to archive body camera footage does not alone amount to any cognizable claim under Section 1983 and, at most, may raise issues more appropriately suited for the discovery phase of this litigation, such as the possible spoliation of evidence, etc. See United States v. Taylor, 312 F. Supp. 3d 170, 178 (D.D.C. 2018) (holding that police officers’ failure to activate body-worn cameras alone does not constitute a due process violation).

6.   Because there is no cognizable claim arising under Section 1983 for an alleged failure to investigate, the accrual and/or timeliness of any such purported claim is immaterial.

7.   Executive Order 7G has no bearing on the timeliness of the plaintiff's malicious prosecution claim, insofar as that claim did not accrue until 2022, i.e., after the suspension of Connecticut statutes of limitations was lifted. See Spak, 857 F.3d at 462 (“In malicious prosecution suits under Section 1983, the statute of limitations begins to run when the prosecution ‘terminate[s] in the plaintiff's favor.’ ”).

8.   See Executive Order No. 7G (March 19, 2020), CT.GOV, https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7G.pdf; Executive Order No. 10A (February 8, 2021), CT.GOV, https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-10A.pdf.

Robert M. Spector United States Magistrate Judge