Opinion
No. CV 04 0487437
February 1, 2008
MEMORANDUM OF DECISION RE MOTION FOR STRIKE NO. 105
The defendants, the Town of East Haven, Lisa Scaramella, John Casio, Edward Peterson, Gary DePalma and Leonard Gallo have moved to strike the plaintiff's revised amended complaint on February 28, 2005. The plaintiff filed an objection to the motion to strike on November 9, 2007. The defendants filed a reply brief on November 12, 2007. The motion was argued before the court on November 13, 2007.
The plaintiff, co-administrator of the estate of the decedent, Sherrie Kastancuk, filed a two-count complaint against the defendants. In the first count she alleges that her decedent's rights under 42 U.S.C. § 1983 were violated by the individual named defendants who were employees of the defendant Town of East Haven. The defendant Leonard Gallo was Police Chief of the East Haven Police Department and had ultimate responsibility for adopting and implementing policies and procedures to be followed by employees under his direction at the East Haven Police Department. The defendants John Cascio, Lisa Scaramella, Edward Peterson, Gary DePalma were officers with the East Haven Police Department and were acting under color of state law, and within the scope of their employment. All individual defendants were sued in their individual capacity.
The plaintiff alleges that on February 2, 2002, at approximately 1:11 p.m., plaintiff's decedent, was arrested on a shoplifting charge, and taken into custody by officers of the East Haven Police Department; that after being taken into custody by East Haven police officers, Kastancuk was transported to a holding cell at the East Haven Police Department, located at 471 North High Street in East Haven; that Kastancuk arrived at the East Haven Police Department at approximately 1:30 p.m. on the afternoon of February 2, 2002; that she was placed in a locked cell in a lock-up area ("the lock-up") within the department headquarters; that while in the East Haven lock-up, Kastancuk was, at various times during the afternoon and early evening of February 2, 2002, under the care, custody and control of defendants, Scaramella, Cascio, Peterson, and DePalma and other East Haven police officers; that the East Haven Police Department lock-up was equipped with video cameras, which enabled individuals being held in the lock-up cells to be monitored at the main desk and dispatch area. The cells were also equipped with audio monitors; that Kastancuk remained in custody at the East Haven Police Department lock-up through the afternoon of February 2, 2002, because she was unable to post the bond that had been set for her; that at approximately 3:30 p.m. on February 2, 2002, defendant Scaramella walked from her post to lock-up area to check on Ms. Kastancuk, after she noticed her standing with her back to the camera and her arms crossed; that between 3:30 p.m. and 5:56 p.m., none of the defendants, nor any other East Haven police officer, checked on Kastancuk or took any other steps to ensure her safety and well-being; that on February 2, 2002, at some point between 3:30pm. and 5:56 p.m., Sherrie Kastancuk committed suicide by hanging herself in her holding cell at the East Haven Police Department; that the death of Sherrie Kastancuk by asphyxia caused her to endure great physical and mental suffering, emotional pain and anguish, and other damages; that Sherrie Kastancuk's injuries and death were caused in whole or in part by the failure of the defendants:
a. to monitor adequately and to care for the well-being of Sherrie Kastancuk after she was arrested and taken into custody;
b. to provide adequate facilities by which appropriate monitoring of Sherrie Kastancuk could be performed while she was in the custody of the East Haven Police Department;
c. to make reasonable inspections of Sherrie Kastancuk while she was incarcerated and to monitor her activities, and to ensure that she did not take her own life or engage in self-destructive conduct;
d. to install and/or maintain adequate lighting in the area in which holding cells were located within the East Haven Police Department, so that existing monitoring equipment could properly and adequately allow monitoring of prisoners;
e. to remove potentially harmful clothing from Sherrie Kastancuk prior to her being placed in a holding cell;
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f. to implement and/or maintain adequate policies, protocols or standards of care for individuals in the custody of the East Haven Police Department and/or the agents thereof;
g. to train adequately and/or to supervise adequately the officers of the East Haven Police Department who were responsible for the care, custody and control of Sherrie Kastancuk.
The plaintiff alleges that one or more of these failures by the defendants amounted to deliberate indifference to the constitutional rights of Sherrie Kastancuk while in custody at the East Haven Police Department, specifically, her right under the Eighth and/or Fourteenth Amendments to the United States Constitution to reasonable and prompt medical care, including self-protection and appropriate monitoring while in custody, and her right to substantive due process under the Fourteenth Amendment.
In the second count against the Town of East Haven the plaintiff realleges the allegations of the first count and asserts that the Town violated her rights under 42 U.S.C. 1983. Specifically she alleges that prior to and continuing through February 2, 2002, the Town of East Haven maintained policies or customs that reflected and constituted deliberate indifference to the rights of incarcerated detainees, such as Sherrie Kastancuk; that these policies and customs included:
(a) the failure to adopt policies or protocols concerning the physical monitoring of prisoners in the custody of the Town of East Haven, including but not limited to policies and protocols regarding frequency of physical checks on prisoners in custody, and
(b) the failure adequately to train its personnel regarding the identification of suicide risk, and the appropriate actions to be taken in order to minimize or eliminate the risk of suicide by individuals in its custody.
In the third count of the complaint the plaintiff seeks to recover on a negligence liability theory against all defendants. She alleges that they owed the plaintiff's decedent, Sherrie Kastancuk, as a prisoner under their care, custody and control, a duty to protect her from unreasonable risk of harm, including self-injury; that the Defendants breached their duty owed to Sherrie Kastancuk, and were negligent. The plaintiff iterates the specifications of negligence from the First Count.
The plaintiff claims that these negligent acts were the proximate cause of Sherrie Kastancuk's injuries and death; and that the Town of East Haven is liable for the negligence of the individual defendants, as well as for the negligence of its other agents, servants and employees, pursuant to Conn. Gen. Stat. § 7-465 and Conn. Gen. Stat. § 52-557n.
The defendants, in their motion to strike challenge the sufficiency of the allegations of the First Count because the plaintiff was not a sentenced prisoner and therefore the Eight Amendment protections were not extended to her; that under the fourteenth amendment claim the plaintiff's allegations do not evince a deliberate indifference to the rights and needs of a detainee such as the plaintiff's decedent. With regard to the Second Count the defendants argue that the plaintiff has failed to allege sufficient facts to infer the existence of an official municipal policy or custom that caused the claims injury and with regard to the Third Count the defendants assert that since the defendants' conduct was discretionary in nature they are entitled to governmental immunity.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). By contrast, "[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.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
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A.
First Count. The plaintiff concedes that the plaintiff's decedent, as a pre-trial detainee is not entitled to protection of the Eighth Amendment of the United States Constitution. The plaintiff asserts, however, under the Fourteenth Amendment of the United States Constitution, that Eighth Amendment protections can be used by analogy to determine her due process rights. See Madden v. City of Meriden, 602 F.Sup. 1160, 1163 (D.Conn. 1985). See also Rhem v. Malcolm, 507 F.2d 333, 337 (2d Cir. 1974). A pre-trial detainee, who has not been convicted of any crimes, has certain liberty and due process rights.The rights of pre-trial detainees under the Fourteenth amendment have been considered by a number of courts. In Coleman v. Parkman, 349 F.3d 534 (8th Cir. 2003), the plaintiff's decedent committed suicide by using a sheet to hang himself in his cell. The decedent had made several prior suicidal threats and there was conflicting evidence as to the jailer's knowledge that the decedent was a suicide risk. In this section 1983 action the District Court denied the defendant's motions for summary judgment based upon a qualified immunity argument and the defendants filed an interlocutory appeal. The court held that in order to prevail on a claim the defendants had acted with deliberate indifference towards the detainee the plaintiff had to show that "(1) appellants (defendants) knew Coleman presented a substantial suicide risk; and (2) appellants failed to respond reasonable to that risk . . . It is not enough to show the risk was obvious. A prison official is not liable under the Fourteenth Amendment unless the official knows of facts evidencing a substantial suicide risk and the official actually infers the prisoner presents a substantial suicide risk." Coleman, supra at 538.
In Collins v. Seeman, 462 F.3d 757 (7th Cir. 2006), the mother of a prisoner who committed suicide brought a section 1983 action against prison officials. The District Court granted the defendants motions for summary judgment and the plaintiff appealed. The court stated "Where the harm at issue is suicide or attempted suicide, the second, subjective component of an Eighth Amendment claim requires a dual showing that the defendant: (1) subjectively knew the prisoner was at substantial risk of committing suicide and (2) intentionally disregarded the risk . . . With respect to the first showing, it is not enough that there was a danger of which a prison official should have been aware, rather, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference." (Internal citations and emphasis omitted). Collins, supra, at 761. "We have characterized the required showing as something approaching a total unconcern for [the prisoners] welfare in the face of serious risks . . . To establish deliberate indifference, the plaintiff must present evidence that an individual defendant intentionally disregarded the known risk to inmate health or safety." (Internal citations omitted). Collins at 762.
The plaintiff's complaint does not allege facts from which an inference of deliberate indifference can be drawn. There is no description of erratic or depressive behavior on the part of the decedent, nor an allegation of a known mental health history, or statements by the deceased that would support an inference of suicidal ideations which would put the defendants on notice. The complaint describes the decedent as "standing with her back to the camera and her arms crossed." The allegations of the complaint challenge the adequacy of the monitoring systems, the reasonableness of the inspections, the adequacy of the lighting, the failure to remove potentially harmful clothing and the inadequacy of policies or adequacy of training in the police department. The complaint then alleges a legal conclusion that the conduct of the defendants amounted to "deliberate indifference." The complaint does not allege that the defendants were aware that the decedent was a substantial suicide risk nor, are there sufficient allegations to support the inference that the defendants were aware that the plaintiff's decedent was a substantial suicide risk. In the absence of factual allegations that would support appropriate required inferences the First Count of the complaint must be stricken.
B.
Second Count. This count asserts a Monell claim against the defendant municipality. A municipality cannot be liable for the acts of its agents under a theory of respondeat superior but a municipality may be liable for its own acts or omissions which amount to a "deliberate indifference" to a person's constitutional rights. See Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979). In the Second Count the plaintiff alleges that the Town "maintained policies or customs that reflected and constituted deliberate indifference to the rights" of Sherrie Kastancuk. Specifically she alleges the Town failed to adopt policies or protocols for the monitoring of prisoners and failed to adequately train its personal regarding the identification of suicide risks.
The allegations of the Second Count speak to one tragic incident. There are no allegations of a pattern of conduct from which a custom or policy adopted or followed by the supervisory employees of the police department can be inferred. Further, the allegations of the Second Count focus on the alleged nonaction of the defendant municipality. The plaintiff has not alleged the existence of such non-policies in other than conclusory terms. The Second Count is insufficient and must be stricken.
C.
Third Count. The defendants claim that they are immune from suit because of governmental immunity for discretionary acts. The plaintiff argues that the determination of whether a party's actions are ministerial or discretionary is inherently fact dependent and thus the motion to strike should be denied.
"Generally, a municipality is immune from liability unless the legislature has enacted a statute abrogating such immunity . . . Two such statutes are §§ 465fn1 and 52-557nfn2. Those statutes . . . coexist in that parties may choose to rely on either statute as long as they meet the requirements therein . . . Section 52-557n allows an action to be brought directly against a municipality for the negligent actions of its agents. Section 7-465 allows an action for indemnification against a municipality in conjunction with a common law action against a municipal employee." Gaudino v. Town of East Hartford, 87 Conn.App. 353, 355-56 (2005) (internal citations omitted). The plaintiff in this case relies upon both statutes.
"Put simply, a municipal official is otherwise generally immune from liability for discretionary as opposed to ministerial acts, unless the plaintiff can show that the circumstances fit under one of three exceptions: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks and citations omitted.) Fleming v. City of Bridgeport, 284 Conn. 502, 531-32 (2007).
"Under our case law, when "the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable [or foreseeable] person to imminent harm, the public officer is not entitled to qualified immunity." Thus, we will permit official liability for discretionary acts only if the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force." Fleming, supra, at 532-33. (Internal quotations and citations omitted.)
There is no real question that the conduct the plaintiff complains of is governmental conduct that requires the exercise of discretion. The plaintiff relies upon the "identifiable individual imminent harm" exception to the doctrine of governmental immunity. She has not alleged that the defendants have acted with malice nor has she alleged the violation of a statute governing the defendants' conduct in this situation.
What is absent from the complaint are allegations of the facts that the plaintiff relies upon to establish these defendants were aware that the decedent was in a position of "imminent harm." The allegations that an individual is arrested and is unable to post bond are not sufficient to support inferences that self-harm is imminent. The allegations that the plaintiff was "standing with her back to the camera and her arms crossed" is also not sufficient to support an inference of "imminent harm."
The Third Count is ordered stricken.
In summary, the defendant's Motion to Strike all three counts of the complaint is granted.