Opinion
CASE NO. 3:05CV876 (JCH) (HBF).
March 15, 2007
RULING ON MOTION TO DISMISS [DOC. NO. 13]
The plaintiff, Luis Angel Salaman ("Salaman"), commenced this civil rights action pro se pursuant to 42 U.S.C. § 1983. He alleges, inter alia, that on May 24, 2003, the defendants arrested him without probable cause and used excessive force against him during the arrest. Pending is a motion to dismiss filed by defendants Bullock and the New Haven Police Department. For the reasons that follow, the motion is granted in part.
I. STANDARD OF REVIEW
When considering a Rule 12(b) motion to dismiss, the court accepts as true all factual allegations in the complaint and draws inferences from these allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Flores v. Southern Peru Copper Corp., 343 F.3d 140, 143 (2d Cir. 2003). Dismissal is inappropriate unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654 (1999); Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). "`[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" York v. Association of Bar of City of New York, 286 F.3d 122, 125 (2d Cir.) (quoting Scheuer, 416 U.S. at 236), cert. denied, 537 U.S. 1089 (2002). In other words, "`the office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of New York, 375 F.3d 168, 176 (2d Cir. 2004) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)). However, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss" from being granted. Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (internal quotation marks and citation omitted).
II. FACTS
For the purposes of deciding this motion, the court assumes that the following allegations, taken from the Amended Complaint, are true.
On May 24, 2003, Salaman and a friend were at a nightclub located in New Haven called Club Icon. Defendant Richard Faustine, a Security Officer for Club Icon, approached Salaman from behind, grabbed his right arm and twisted it behind his back. Faustine did not identify himself or inform Salaman that he had done anything improper or illegal.
As Faustine pushed Salaman toward the front of the club, Salaman struggled to free himself. Another male individual grabbed Salaman, and he and Faustine slammed Salaman against a wall. Defendant Wayne Bullock, a New Haven Police Officer, approached Salaman, grabbed him by the throat with his right hand, and punched him in the face with his free left hand. Bullock did not identify himself as a police officer and was not wearing a police uniform. Salaman bit Bullock on the right arm in self-defense. Bullock then identified himself as a police officer and informed Salaman that he would be charged with assault.
Faustine, Bullock and the unidentified male took Salaman outside the club, slammed him to the ground, kicked him in the back, and punched him in the face. Bullock then dragged Salaman down some stairs and began to kick him in the side of the head. Salaman managed to get up and run for his life. Bullock chased after him. Salaman was thrown in the air and then lost consciousness. Salaman awoke in the hospital with injuries to his face, throat, arms, back, and left eye.
Salaman filed a formal complaint with the New Haven Police Department. The Department later informed Salaman that the complaint had been misplaced. Salaman seeks declaratory relief and compensatory and punitive damages.
III. DISCUSSION
Bullock and the New Haven Police Department move to dismiss the complaint. They argue that Salaman has failed to state a claim upon which relief may be granted.
A. New Haven Police Department
Salaman claims that the New Haven Police Department failed to process his complaint against Bullock and failed to properly train Bullock, all in violation of his Fourth, Ninth and Fourteenth Amendment rights. The Department argues that it is not a separate legal entity subject to suit under section 1983.
Although a municipality is subject to suit pursuant to 42 U.S.C. § 1983, see Monell v. Department of Social Services, 436 U.S. 658, 690 (1978), a municipal police department is not. A municipal police department is a sub-unit, agency or instrumentality of the municipality through which the municipality fulfills its policing function. See Cowras v. Hard Copy, Case No. 3:95cv99(AHN), slip op. at 25 (D. Conn. Sept. 29, 1997). Thus, a municipal police department it is not subject to suit under section 1983 because it is not an independent legal entity. See id.; see also Knight v. Farmington Police Department, 2007 WL 2349572 at 1 (D. Conn. 2006).
Other courts addressing this issue concur that a municipal police department is not subject to suit because it is not a "person" within the meaning of section 1983. See, e.g., Dean v. Barber, 951 F.2d 1210, 1215 (11th Cir. 1992) (affirming district court's dismissal of claims against county sheriff's department because, under state law, sheriff's department lacked capacity to be sued); Orraca v. City of New York, 897 F. Supp. 148, 151-52 (S.D.N.Y. 1995) (holding police department and police precinct not suable entities under section 1983).
B. Eighth and Fourteenth Amendment Claims
Salaman alleges that Bullock violated his Eighth and Fourteenth Amendment rights when he used excessive force against him during the arrest at the nightclub. Defendant Bullock argues that the Eighth and Fourteenth Amendments are inapplicable to Salaman's claims.
The Fourth Amendment's prohibition against unreasonable seizures of the person applies to claims that law enforcement officers used excessive force in the course of an arrest, investigatory stop or other pre-arraignment seizure. See Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989) ( Fourth Amendment standard applies through time of arraignment or formal charge). The Eighth Amendment's protection from cruel and unusual punishment applies only after the defendant has been convicted. See Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989) ( Eighth Amendment right to free from cruel and unusual punishment applies only to the post-conviction stage). Additionally, the right to substantive Due Process under the Fourteenth Amendment is inapplicable to claims that police officers used excessive force during an arrest. See id. at 395 ("[A]ll claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard.");Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998) ("[E]xcessive force used by officers arresting suspects implicates the Fourth Amendment's prohibition on unreasonable seizures, rather than the Fourteenth Amendment's guarantee of substantive due process.") (citation omitted).
Salaman's claims relating to Bullock's use of force during his arrest must be analyzed under the Fourth Amendment and not the Eighth Amendment. Accordingly, the motion to dismiss is granted as to the Eighth and Fourteenth Amendment claims against defendant Bullock.
C. Ninth Amendment Claim
Salaman alleges that Bullock violated his rights protected by the Ninth Amendment. Bullock argues that the Ninth Amendment is not an independent source of constitutional rights that may be asserted in a civil rights action.
The Ninth Amendment states: "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const. amend. IX. The Ninth Amendment is not a substantive source of constitutional rights, the deprivation of which is cognizable under § 1983. In re State Police Litigation, 888 F. Supp. 1235, 1258 (D. Conn. 1995), appeal dismissed, 88 F.3d 111 (2d Cir. 1996). There is no basis for a Ninth Amendment claim when a plaintiff does not identify any fundamental right that the defendant has violated.Persico v. Gunnell, 560 F. Supp. 1128, 1138 (S.D.N.Y. 1983).
In this case, Salaman fails to identify in his Amended Complaint any fundamental right violated by Bullock that is not encompassed by the other identified constitutional amendments.See Strandberg v. Helena, 791 F.2d 744, 748 (9th Cir. 1986) (acknowledging that the Ninth Amendment has been viewed as protecting rights not enumerated in the first eight amendments) (citing Griswold v. Connecticut, 381 U.S. 479 (1965) (Goldberg, J., concurring)). Thus, the motion to dismiss is granted as to the Ninth Amendment claim against Bullock.
D. Fourth Amendment
The court liberally construes Salaman's Amended Complaint as asserting claims under the Fourth Amendment for false arrest, false imprisonment and excessive force. Bullock addresses the false arrest claim only.
Salaman alleged that, after Faustine slammed him against the wall in the Club, Bullock grabbed him around the throat with his right hand and choked him and punched him the face with his left hand. In self-defense, Salaman bit Bullock on the right arm. After identifying himself as a police officer and informing Salaman that he would be arrested for assault, Bullock brought Salaman outside the nightclub, punched him in the face, dragged him down some stairs and kicked him in the side of the head. Salaman asserted that Bullock was not dressed in a police uniform, did not initially identify himself, and did not have a warrant to arrest him. Bullock contends that, as a police officer, he could validly arrest Salaman without a warrant.
The Fourth Amendment protects, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides that "no Warrants shall issue, but upon probable cause. . . ." U.S. Const. amend. IV. Thus, the Fourth Amendment's protection against unreasonable seizure includes the right to be free from arrests without probable cause. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
In assessing a Fourth Amendment false arrest claim, the Second Circuit looks "to the law of the state in which the arrest occurred." Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004). Connecticut law permits a police officer to make a warrantless arrest of "any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others." Conn. Gen. Stat. Ann. § 54-1f(a). Under Connecticut law, lack of probable cause is an essential element of a false arrest claim. See Davis, 364 F.3d at 432. "Probable cause to arrest exists when the arresting officer 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." Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation and citation omitted). Thus, although an officer need not have a warrant to make an arrest of an individual, the officer must have a reasonable belief that the individual has committed or is committing a crime at the time of the arrest.
Salaman alleges that he was not engaged in any illegal or improper activities when Bullock restrained him by grabbing him around the neck and punching him in the face. There are no other alleged facts to suggest that it was reasonable for Bullock to believe that Salaman had committed or was about to commit a crime at the time of the restraint. Salaman has alleged sufficient facts to state a claim of arrest without probable cause in violation of the Fourth Amendment against Bullock. See Outlaw v. City of Meriden, 43 Conn. App. 387, 392, 682 A.2d 1112, 1115 (1996) ("`False imprisonment or false arrest is the unlawful restraint by one person of the physical liberty of another.'") (quoting Green v. Donroe, 186 Conn. 256, 267, 440 A.2d 973, 974 (1982)). Accordingly, the motion to dismiss is denied as to the Fourth Amendment claims against Bullock.
E. State Law Claims Against New Haven Police Department
Salaman also includes claims for violation of state law. Supplemental or pendent jurisdiction is a matter of discretion, not of right. Thus, the court need not exercise supplemental jurisdiction in every case. See United Mine Workers v. Gibbs, 383 U.S. 715, 715-26 (1966). The federal court should exercise supplemental jurisdiction and hear a state claim when doing so would promote judicial economy, convenience and fairness to the litigants. The court should decline to exercise supplemental jurisdiction, however, when state law issues would predominate the litigation or the federal court would be required to interpret state law in the absence of state precedent. See id. at 726. In addition, the court may decline to exercise supplemental jurisdiction where the court has dismissed all claims over which it has original jurisdiction. See 28 U.S.C. § 1367(c)(3);Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) ("in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims"); Spear v. Town of West Hartford, 771 F. Supp. 521, 530 (D. Conn. 1991) ("absent unusual circumstances, the court would abuse its discretion were it to retain jurisdiction of the pendant state law claims on the basis of a federal question claim already disposed of"), aff'd, 954 F.2d 63 (2d Cir.), cert. denied, 506 U.S. 819 (1992).
The court has dismissed all federal claims against the New Haven Police Department. To the extent that Salaman asserts claims of violations of state law against the New Haven Police Department, the court declines to exercise supplemental jurisdiction over those claims in the absence of any federal claims against the parties.
IV. CONCLUSION
The Motion to Dismiss [Doc. No. 13] is GRANTED as to all claims against the New Haven Police Department and the claims pursuant to the Eighth, Ninth and Fourteenth Amendments against defendant Bullock. The Motion to Dismiss [Doc. No. 13] is DENIED as to the Fourth Amendment claims against defendant Bullock. The court declines to exercise supplemental jurisdiction over any claims that the New Haven Police Department violated state law. See 28 U.S.C. § 1367(c)(3). The State law claims against Bullock remain pending.