Opinion
No. HHD X07 CV 5014477S
March 16, 2010
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT I
The plaintiff, Carrie Arteaga, commenced suit on July 13, 2007 bringing six counts against the town of Waterford, the Waterford police department, the chief of police, Murray J. Pendleton, a police officer, Mark Belestracci, and unknown members of the police department (unknown defendants) seeking damages for failing to protect her from injuries inflicted on her on many occasions by her former husband, Michael Arteaga (Arteaga). In the first count, the plaintiff alleged that the defendants negligently failed to protect her from Arteaga even though a protective order and a restraining order against him were in place; in the second count, she alleged that the defendants negligently inflicted emotional distress; in the third count, she maintained that the town must indemnify the other defendants pursuant to General Statutes § 7-101a; in the fourth count, she alleged reckless infliction of emotional distress; in the fifth count, she alleged that the defendants' actions constituted a violation of due process under 42 U.S.C. § 1983; and, finally, in the sixth count, she alleged an equal protection violation also under 42 U.S.C. § 1983. In their answer and special defenses, filed November 14, 2007, Waterford, the police department, Pendelton and Belestracci (collectively, the defendants) raised governmental immunity, qualified immunity and statutes of limitations defenses. On September 18, 2009, the defendants filed the instant motion for summary judgment expanding on their special defenses and the plaintiff filed her memorandum of law in opposition on October 21, 2009. The defendants filed a reply on November 4, 2009, and this court heard argument on November 16, 2009.
Connecticut recognizes only two emotional distress causes of action. Pettite v. DSL.net, Inc., 102 Conn.App. 363, 374 n. 2, 925 A.2d 457 (2007) ("Connecticut recognizes two types of emotional distress claims, intentional infliction of emotional distress . . . and negligent infliction of emotional distress" [citation omitted]). The plaintiff conceded this at oral argument on November 16, 2009 and stated that the count should be deemed to be an intentional infliction of emotional distress cause of action.
II
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). "Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations [are] not in dispute." (Internal quotation marks omitted.) Blinkoff v. O G Industries, Inc., 113 Conn.App. 1, 8, 965 A.2d 556, cert. denied, 291 Conn. 913, 969 A.2d 175 (2009). "Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
III A.
The defendants seek summary judgment on all counts of the complaint and there are many areas where the plaintiff, in fact, does not object. First, as to the claims brought against the Waterford police department, the defendants argue that summary judgment must enter on the ground that it is not a legal entity capable of being sued. See Himmelstein v. Windsor, Superior Court, judicial district of Hartford, Docket No. CV 05 4013928 (May 16, 2006, Keller, J.) ("The Connecticut General Statutes contain no provision establishing municipal departments, including police departments, as legal entities separate and apart from the municipality they serve, or providing that they have the capacity to sue or be sued . . . Rather, pursuant to Connecticut enabling legislation, it is the municipality itself which possesses the capacity to sue and be sued." [Citations omitted]); Weitz v. Greenwich Police Dept., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0200464 (January 10, 2005, Jennings, J.) ( 38 Conn. L. Rptr. 512, 513) ("there is no provision providing that municipal police departments constitute a legal entity separate and apart from the municipality they serve, or that they have the power to sue or be sued"). In her memorandum in opposition to the motion for summary judgment, the plaintiff concedes this issue and agrees that the defendants' motion may be granted as to her claims against the police department.Second, the defendants seek summary judgment as to the claims against the unknown defendants because the court does not have jurisdiction over parties who have not been named and served. See Tarnowsky v. Socci, 271 Conn. 284, 292, 856 A.2d 408 (2004); Angiolillo v. Buckmiller, 102 Conn.App. 697, 712-14, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007). The plaintiff also concedes this in her memorandum in opposition.
Third, the defendants seek summary judgment as to the plaintiff's sixth count claim of a denial of equal protection under 42 U.S.C. § 1983 and the plaintiff does not oppose judgment on this count as well. Therefore, summary judgment enters for the defendants on all of the plaintiff's claims against the police department and the unknown defendants and on count six.
Finally, plaintiff's counsel also acknowledged at oral argument that the first three counts of the complaint are barred by the appropriate statutes of limitations. As noted, count one alleges negligence and count two claims negligent infliction of emotional distress and is controlled by General Statutes § 52-584. The indemnification claim in the third count is controlled by § 7-101a(d). Since the action was commenced on July 13, 2007, and the last actions alleged in the complaint occurred on August 3, 2004, the negligence claims of the first and second counts are beyond the two-year statute and are barred; this is also true as to the indemnification claim of the third count. Summary judgment, therefore, enters as to these three counts. Additionally, the plaintiff withdrew her fourth count, reckless (or intentional) infliction of emotional distress, after oral argument on November 16, 2009. Therefore, the only remaining count of the complaint is count five, violation of due process under 42 U.S.C. § 1983, against Waterford, Pendleton and Belestracci.
Section 52-584, in relevant part, provides: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ."
Section 7-101a(d) provides: "No action shall be maintained under this section against such municipality or employee unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued."
B. 1.
Pursuant to General Statutes § 52-577, the statute of limitations for the § 1983 claim is three years. See Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) ("[w]e accordingly hold that where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions"). Consequently, the defendants argue that the only activities under examination for the fifth count are those that occurred from July 13, 2004 to August 4, 2004.
Section 52-577 provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
The plaintiff alleges and argues the following facts occurring from July 13, 2004 to August 4, 2004. She applied for a restraining order against Arteaga on July 16, 2004 that was granted ex parte on July 17, 2004. On July 22, 2004, Arteaga broke into the plaintiff's house in the early morning hours. After he left, she called the police, but he returned shortly before the police arrived. The police were unable to locate him and they left with the intention of seeking an arrest warrant.
The plaintiff alleges that she and Arteaga were married in 1997, had two children and were divorced on November 13, 2003.
Pendleton testified that it was the police department's policy that an arrest warrant was required to be prepared by the end of an officer's shift, but stated that the phrase "by the end of the shift" was subjective. He also averred that the police department's policy at the time required the police officer assigned as court liaison officer to expedite the processing of the applications for arrest warrants.
Later the same morning, Arteaga appeared again while the plaintiff was leaving her home with her children. He forced her and the children into the car and made her drive around while he berated her. Arteaga called a police officer from the car and the department dispatched officers to the home believing he might be there. Arteaga exited the vehicle and fled on foot after the plaintiff drove into a gas station and honked her horn continuously. Upon returning to her home, the police officers did not search for Arteaga, but yelled at her for failing to call them immediately. The plaintiff pleaded with the police to assign a patrol to her home or to have a car periodically drive by the house. The police did not apply for a warrant for the events of July 22, 2004 until July 27, 2004.
On July 25, 2004, Arteaga called the plaintiff and threatened her about appearing in court the next day. The plaintiff called 911, the police responded, but did not apply for an arrest warrant despite the violation of the restraining order. The plaintiff went to court and obtained a restraining order, which was to expire in six months, after a hearing.
On July 27, 2004, Arteaga again appeared at the plaintiff's home and she called the police. Upon hearing the sirens, Arteaga grabbed one of the children and drove away. A police officer responded and the plaintiff told the officer that Arteaga had told her that "[w]e are all going to die." The officer contacted Arteaga on his cell phone to try to reason with him. Belestracci asked the officer over the police radio to end the call so that Belestracci could contact Arteaga because Belestracci had a "rapport" with and knew Arteaga "on and off duty." The police joked that the plaintiff was not suffering as badly as another woman in the town who was being physically abused by her husband every few days. The police also stated that they were not getting any rest between the calls related to the plaintiff and the other woman. Eventually, Arteaga returned the child to a friend's house. The police did not actively search for Arteaga or the child during the ordeal, but indicated they would seek an arrest warrant. The plaintiff told the police that she would be dead before they obtained the warrant.
The same day, an officer called Arteaga and asked him to come in to speak to the police. Arteaga replied, "You better write the warrant." The arrest warrant was not signed until August 3, 2004.
On July 28, 2004, Arteaga turned himself in to the police and, on July 29, 2004, the court entered a no contact protective order. On July 30, 2004, Arteaga called her until she unplugged her phone, and, early the next morning, he was outside the home yelling and apparently trying to break in or having broken into the home. The police remained on the scene for some time while attempting to search for him.
Five hours later, two police officers were dispatched by the police department to stand by while Arteaga entered the plaintiff's home for approximately thirty minutes. One of the officers may have been aware that there was a protective order in place. The other officer had responded to the plaintiff's home on July 22, 2004, but did not recall the plaintiff reporting Arteaga's threat that "[w]e are all going to die."
Finally, on August 3, 2004, Arteaga broke into the plaintiff's home by diving through a window where he stabbed the plaintiff and another person multiple times until the police subdued him. The responding police arrested Arteaga. The police department reported Arteaga's violence to his federal probation officer on August 20, 2004.
Pendleton testified at his deposition that it was his expectation that his officers would notify someone's probation officer if that person displayed a tendency toward violence, even if the act was not a serious act of violence.
The plaintiff argues that the statute of limitations is tolled because there was a continuing course of conduct in this case. She maintains that, beginning January 3, 2003, she repeatedly sought assistance from the police with approximately nineteen calls over twenty months and that the statute of limitations should be tolled to include all interactions dating back to January 3, 2003.
The defendants argue that the plaintiff was required to raise her theory of a continuing course of conduct by way of a reply to the defendants' special defenses. Practice Book § 10-57 provides: "Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply . . ." In Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 607, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007), our Appellate Court refused to address the plaintiff's argument of continuing course of conduct where she raised it for first time in opposition to motion for summary judgment.
In the present case, the plaintiff never filed a reply to the defendants' special defenses and appears to have raised her theory of a continuing course of conduct for the first time in her memorandum in opposition to the defendants' motion for summary judgment. Therefore, the court only considers those events that occurred from July 13, 2004 to August 4, 2004.
2.
The plaintiff maintains that the defendants have violated her procedural and substantive rights to due process of law under the fourteenth amendment to the United States constitution and thus violated 42 U.S.C. § 1983. The plaintiff alleges, in paragraphs 154 and 155 of the fifth count of her complaint, that the defendants had a duty to enforce the protective and restraining orders "and to arrest violators, therefore giving the plaintiff, who had the Orders, a legitimate claim of entitlement to the protection the Orders are intended to provide" and that the town had a policy of arbitrarily enforcing them. The defendants argue that the plaintiff's § 1983 claim is not viable as a matter of law in that they did not have an affirmative duty to protect her. The plaintiff counters that her claims come under the state created danger exception that applies to § 1983 actions.
Section 1 of the fourteenth amendment to the United States constitution, in relevant part, provides: "No State shall . . . deprive any person of life, liberty or property, without due process of law . . ."
"Section 1983 permits a federal cause of action to be brought against any `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 [of the United States] . . .' 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 of laws of the United States.'" 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).
In DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), a case with a similar tragic family violence scenario culminating with the father beating his four-year-old son, Joshua, the Supreme Court rejected a substantive due process claim. The court stated that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security." Id., 195. Moreover, the court rejected the special relationship argument posited by the plaintiff, noting that, "[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual's safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua." Id., 201. The court concluded with the admonition that "[j]udges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua's father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them." Id., 202-03.
The DeShaney court recognized two exceptions where an affirmative duty is imposed on the state to protect a particular individual. The first, which does not apply here, is the "special relationship" exception where an individual is being held in custody by the state. See id., 198-200. The second, known as the "state created danger" exception arises when "the state affirmatively creates or increases the victim's risk of danger at the hands of a private actor." Aselton v. East Hartford, 277 Conn. 120, 134, 890 A.2d 1250 (2006).
See also Pena v. Deprisco, 432 F.3d 98 (2d Cir. 2005) (finding that plaintiff sufficiently alleged claim of state created danger where she pleaded that police officers actively drank with off-duty fellow officer, who ultimately drove into and killed several pedestrians). In Pena, the court distinguished active from passive facilitation and stated that "[i]t is clear from the cases, we think, that to the extent that the plaintiffs allege merely that the individual defendants failed to intercede on the day of the accident, their complaints do not involve sufficient affirmative acts to violate substantive due process rights." Id., 110. "We conclude that when, as the plaintiffs allege, state officials communicate to a private person that he or she will not be arrested, punished, or otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty or property of others, those officials can be held liable under section 1983 for injury caused by the misconduct under Dwares [ v. City of New York, 985 F.2d 94 (2d Cir. 1993) (finding that allegations that police allegedly assured `skinheads' that police will not interfere with their assaults on flag burners adequate to state claim for § 1983 violation)]. This is so even though none of the defendants are alleged to have communicated the approval explicitly." Pena v. Deprisco, supra, 432 F.3d 111.
In the present case, the plaintiff maintains that the officers' actions on July 31, 2004 of allowing Arteaga to enter the plaintiff's home without her permission, unsupervised and in violation of the protective order, combined with past actions, including the failure to seek arrest warrants or arrest Arteaga, create material issues of fact concerning this exception. The plaintiff argues that this scenario is similar to that in Okin v. Village of Cornwall-on-Hudson Police Dept., 577 F.3d 415 (2d Cir. 2009).
In Okin, the trial court granted summary judgment on the ground that there was no showing that the police explicitly facilitated Roy Sears in abusing the plaintiff. Id., 427. The Second Circuit reversed and held that "[t]he district court did not consider whether a reasonable trier of fact could find that defendant's behavior enhanced the danger to Okin by implicitly but affirmatively encouraging or condoning Sears's domestic violence." Id., 429. Notwithstanding numerous complaints made by the plaintiff to the police for harassment and physical abuse, Sears was never arrested or interviewed. Id., 420.
The defendants argue that this scenario is vastly different from the present case where, over many months, the police conducted multiple investigations and searches, interviewed Arteaga, obtained arrest warrants and arrested Arteaga on multiple occasions. Nevertheless, these facts must be examined together with the events of the preceding weeks, the apparent multiple violations of the no contact protective order and the incident on July 30, 2004 when the police allowed Arteaga to enter the plaintiff's home unescorted. As discussed, four days later, on August 3, 2004, he assaulted and stabbed the plaintiff and another after gaining entry to her home by diving head first through a window. This court thus finds that there are genuine issues of material fact as to whether the defendants implicitly but affirmatively encouraged Arteaga's domestic violence or enhanced the danger to the plaintiff because they conveyed to Arteaga that he could continue to engage in domestic violence with impunity. See id., 430-31; but see, Clarke v. Sweeney, 312 F.Sup.2d 277, 293-94 (D.Conn. 2004) (holding that state created danger exception did not apply to plaintiff's argument that state had affirmative duty to provide "better" protection to witness).
The defendants cite the plaintiff's memorandum in opposition for the proposition that Arteaga was arrested five times; however, the plaintiff argues that Arteaga was arrested only once before stabbing her and was arrested for other crimes after he was arrested on August 3, 2004.
3.
In order to prove a substantive due process violation, the plaintiff must also prove that the alleged wrongful conduct was "so egregious, so outrageous, that it may fairly be said to shocked the contemporary conscience;" County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (high-speed chase with no intent to harm does not give rise to liability under § 1983); and not merely "incorrect or ill-advised." (Internal quotation marks omitted.) Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995). "[T]he touchstone of due process is protection of the individual against arbitrary action of government . . . whether the fault lies in a denial of fundamental procedural fairness . . . or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective." (Citations omitted; internal quotation marks omitted.) County of Sacramento v. Lewis, supra, 523 U.S. 845-46. "[N]egligently inflicted harm is categorically beneath the threshold of constitutional due process . . . [C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level . . . Whether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence . . . is a matter for closer calls." (Citations omitted; internal quotation marks omitted.) Id., 849.
In the present case, the parties do not agree as to numerous allegations. Genuine issues of fact remain as to whether a reasonable fact finder could conclude that the officers' actions were so egregious that they shocked the conscious. See Okin v. Village of Cornwall-on-Hudson Police Dept., supra, 577 F.3d 431 ("we find the record in this case to support the conclusion that Okin raises a genuine issue of material fact as to whether the defendants' affirmative creation or enhancement of the risk of violence to Okin shocks the conscience").
4.
Section 1983 "imposes liability on a government that, under color of some official policy, `causes' an employee to violate another's constitutional rights." Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) ("a longstanding and widespread practice is deemed authorized by the policymaking officials because they must have known about it but failed to stop it"). "[ Monell] extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation." (Emphasis omitted.) Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006). "A municipality may be found to have a custom that causes a constitutional violation when faced with a pattern of misconduct[, it] does nothing, compelling the conclusion that [it] has acquiesced in or tacitly authorized its subordinates' unlawful actions." (Internal quotation marks omitted.) Okin v. Village of Cornwall-on-Hudson Police Dept., supra, 577 F.3d 439. In Okin, the court found that "Okin's claim of municipal liability, although focused on the Village's alleged failure-to-train, is fairly construed to articulate a claim that the Village had a custom whereby it acquiesced in unconstitutional conduct by its officers. The record shows more than a dozen contacts between Okin and the Village, that involved a number of officers, including high-ranking officials . . . and that recurrently concerned complaints of domestic violence. These incidents suggest a consistent pattern of failing to adequately respond to Okin's complaints, to implement the New York mandatory arrest statute, to interview the alleged abuser, or to file domestic incident reports, a pattern which may have encouraged further violence. We therefore find sufficient evidence in the record to create a genuine issue of fact as to whether the officers' conduct indicates a practice, tacitly endorsed by the Village, that was so `persistent or widespread' as to constitute `a custom or usage with the force of law.'" (Internal quotation marks omitted.) Okin v. Village of Cornwall-on-Hudson Police Dept., supra, 577 F.3d 439-40.
In the present case, the evidence presented indicates several contacts between the plaintiff and the police involving a number of officers concerning recurrent, escalating complaints of domestic violence. A fact finder may find that these interactions suggest a pattern of failing to adequately respond to the plaintiff's complaints and to interview, investigate and arrest Arteaga creating a pattern that may have encouraged Arteaga to commit more acts of violence on the plaintiff. Thus, a genuine issue of material fact exists as to whether the police officers' conduct constitutes a practice implicitly endorsed by the town that was so persistent or widespread that it comprised a custom with the force of law.
"Municipal liability may also be premised on a failure to train employees when inadequate training reflects deliberate indifference to . . . constitutional rights . . . To prove deliberate indifference, we have required the plaintiff to show: (1) that a policymaker knows to a moral certainty that her employees will confront a given situation; (2) that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation; and (3) that the wrong choice by the . . . employee will frequently cause the deprivation of a citizen's constitutional rights . . .
"We have no trouble in finding that policymakers would know that officers will confront domestic violence situations, that training assists officers to employ criminal justice strategies attuned to the complexities of domestic violence, and that in Okin's case, the record indicates a history of mishandling her complaints. There is also a strong likelihood that the officers' repeated failures to meaningfully respond to Okin, potentially enhancing the risk of violence, qualifies as a pattern of misconduct that would frequently cause violations of a citizen's constitutional rights and that suggests training so inadequate as to give rise to an inference of deliberate indifference." (Citations omitted; internal quotation marks omitted.) Id., 440
Nevertheless, in order to defeat summary judgment on a failure-to-train theory, the plaintiff must identify "a specific deficiency" in the defendants' training program and establish "that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation . . . A pattern of misconduct, while perhaps suggestive of inadequate training, is not enough to create a triable issue of fact on a failure-to-train theory . . . The plaintiff must offer evidence to support the conclusion that the training program was inadequate." (Citations omitted; internal quotation marks omitted.) Id.
In the present case, the plaintiff has not identified a specific deficiency in the defendants' training or pointed to any evidence to support her claims that the training program was inadequate. Therefore, the motion for summary judgment is denied based on the plaintiff's theory of custom or practice but granted as to the plaintiff's failure to train theory.
5.
Finally, Pendleton and Belestracci seek summary judgment on the fifth count on two grounds. They argue that they have qualified immunity and that there is no material fact at issue which would support a claim against them. As to the latter argument, there is no allegation at all concerning Pendleton during subject period of time, and the only allegation concerning Belestracci pertains to his calling Arteaga on July 27, 2004, in an attempt to have him return one of the plaintiff and Arteaga's children. Hence, there are no genuine issues of material fact and summary judgment enters for these two individuals.
"A claim of qualified immunity ordinarily involves a two-step inquiry. First, the court must answer this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? . . . [I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." (Citation omitted; internal quotation marks omitted.) Pena v. Deprisco, supra 432 F.3d 107. The Pena court found a violation of a constitutional right through the state created danger exception although it did not find that the right was clearly established. Id., 114-15.
In light of the lack of any material issue of fact as to the first step of this case, this court need not address the remaining inquiry, i.e., whether the right was clearly established. Nevertheless, as stated by the Okin court, "[w]e conclude that the state of the law in 2001 to 2003 gave defendants fair warning that police conduct that encourages a private citizen to engage in domestic violence, by fostering the belief that his intentionally violent behavior will not be confronted by arrest, punishment, or police interference, gives rise to a substantive due process violation, and that defendants, if found liable, would not be entitled to qualified immunity." Okin v. Village of Cornwall-on-Hudson Police Dept., supra, 577 F.3d 437.
IV
For the above reasons, the defendants' motion for summary judgment is granted in part and denied in part. Specifically, the motion is granted as to counts one, two, three and six and is denied as to the fifth count except that it is granted as to the individual defendants.