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concluding that the "imminent harm exception" applies to municipalities
Summary of this case from Cooper v. City of HartfordOpinion
No. CV02-0468497
May 9, 2007
MEMORANDUM OF DECISION RE ISSUE AND SUBMISSION
Before the court is the defendant's motion for summary judgment as to all three counts of the plaintiffs' complaint.
This action arises out of the disappearance and the subsequent death of the decedent, John L. Susman. On October 4, 2004, the plaintiffs, Ada Susman, the mother of the decedent, Arnold Susman, the brother of the decedent, and Charles Susman, the brother of the decedent, filed a three-count revised complaint against the defendant, the town of East Haven, alleging negligence, violations of 42 U.S.C. §§ 1983 and 1988 and negligent infliction of emotional distress.
Ada Susman, Arnold Susman and Charles Susman bring the action in their individual capacities. Arnold Susman also brings the action as executor of the estate of the decedent.
Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . ."
Section 1988(b) of title 42 of the United States Code provides in relevant part: "In any action or proceeding to enforce a provision of [various civil rights laws] the court, in its discretion, may allow the prevailing party . . . a reasonable attorneys fee as part of the costs . . ."
The plaintiffs allege the following facts in their complaint. The decedent disappeared on October 6, 1992. The East Haven police department (the police department) found the decedent's body on June 7, 2001, near his home in East Haven. A forensic examination of the decedent's remains and the area surrounding his home established that the decedent "most probably was murdered." From October 6, 1992 to June 7, 2001, the police department, "in a continuous and uninterrupted course of conduct" investigated the decedent's disappearance. In doing so, the police department "directly assured" the plaintiffs that they would conduct a "full, complete and proper investigation."
Based on these facts, the plaintiffs allege three causes of action. First, they allege that the defendant conducted a negligent investigation into the decedent's disappearance. According to the plaintiffs, the police department failed to properly secure the scene, investigate the areas near the decedent's home, pursue reasonable leads, question witnesses and evaluate evidence. This alleged negligence "delayed or prevented" the estate "from identifying and seeking redress" for the decedent's death resulting in economic loss to the plaintiffs. Second, the plaintiffs allege violations of 42 U.S.C. §§ 1983 and 1988; specifically, the alleged negligence violated their first amendment right "to have access to the courts for redress of legal wrongs." Third, they allege a claim of negligent infliction of emotional distress. The plaintiffs maintain that the police department "knew or should have known" the alleged negligent investigation would cause them severe emotional distress that "might result in illness or bodily harm," and they suffered "prolonged emotional distress and grief."
On September 28, 2004, the Superior Court, Corradino, J., struck the first count of the second revised complaint, a wrongful death claim, and the plaintiffs did not replead the count.
On July 13, 2006, the defendant filed a motion for summary judgment on all three counts accompanied by a memorandum of law in support. In support of the motion, the defendant submitted the following authenticated evidence: (1) a certified copy of excerpts of Arnold Susman's deposition; (2) a certified copy of excerpts of Charles Susman's deposition; (3) a certified copy of excerpts of Ada Susman's deposition; and (4) a copy of the defendant's charter. The defendant also submitted the following unauthenticated evidence: (1) a copy of the February 3, 2002 reconstruction report; (2) a copy of the June 11, 2001 dental identification of the defendant; (3) a copy of the July 30, 2001 postmortem report on the decedent; (4) a brief of the estate of the decedent submitted in opposition to Pamela Susman's petition in probate court entitled "John Susman is Missing But Not Dead"; and (5) Arnold Susman's answers to interrogatories dated May 6, 2005. On October 10, 2006, the plaintiffs filed a memorandum in opposition. They did not submit evidence in support. On January 4, 2007, the defendant filed a reply memorandum. This matter was heard at short calendar on January 8, 2007.
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Because the plaintiffs failed to object to the defendant's use of unauthenticated evidence and there is no dispute as to the authenticity of the evidence, this court will consider such documents in its determination of the motion for summary judgment. See Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (2006).
DISCUSSION
"[S]ummary judgment shall be rendered forthwith if the 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law." (Internal quotation marks omitted.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006).
Although the movant has this burden, "a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough . . . 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 [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). Therefore, in the present case, the court must determine if the defendant has met its burden of establishing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, which would dictate that summary judgment should be granted.
I COUNTS TWO AND FOUR
The defendant moves for summary judgment on the negligence claims in counts two and four on two grounds. First, it argues that governmental immunity at common law and pursuant to General Statutes § 52-557n bars both claims. The defendant contends that the police investigation involves a discretionary governmental function entitling it to immunity. It also maintains that the identifiable person, imminent harm exception to government immunity is inapplicable. According to the defendant, this exception does not apply to claims against a municipality, and, even if this court determines otherwise, the plaintiffs have submitted no evidence to establish this exception. Second, the defendant also argues that the plaintiffs have not produced any evidence that it owed them a duty of care and that its conduct proximately caused their injuries.
General Statutes § 52-557n provides in relevant part: "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
In response, the plaintiffs counter that summary judgment is inappropriate on the negligence counts based on the doctrine of governmental immunity for the following reasons: this issue was decided already against the defendant when the court denied the defendant's motion to strike the two negligence counts; whether the defendant's acts and omissions are ministerial or discretionary is a question of fact for the jury; and, if the court finds the alleged negligent act is discretionary, the identifiable victim, imminent harm exception applies. Specifically, as to the exception, the plaintiffs point out that there is "neither binding authority nor good policy" to support the defendant's argument that the exception does not apply to municipalities, and a next of kin is an identifiable person. Lastly, the plaintiffs also contend that the evidence establishes that the defendant owed them a duty of care.
The Superior Court has ruled on a motion to strike count one, wrongful death, count two, negligence, and count four, negligent infliction of emotional distress, on three separate occasions. On August 20, 2003, the Superior Court, Gilardi, J., denied the defendant's motion to strike counts one, two and four on the ground that the causes of action set forth sufficient claims. Upon reconsideration of the issues, on January 27, 2004, the Superior Court, Robinson, J., reversed the August 20 ruling and granted the defendant's motion to strike counts one, two and four on the ground that the plaintiffs failed to provide statutory authorization for the claims. Susman v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 02 0468497 (January 27, 2004, Robinson, J.). On September 28, 2004 the Superior Court, Corradino, J., struck counts one, two and four. Susman v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 02 0468497 (September 28, 2004, Corradino, J.).
A
The court first addresses the defendant's argument that the police investigation is a discretionary act, which immunizes the defendant from liability. "General Statutes § 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties. General Statutes § 52-557n(a)(1)(A). [Section] 52-557n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion . . ." (Citation omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006).
"Municipal officials are [therefore] immune from liability for negligence arising out of their discretionary acts; (internal quotation marks omitted) id.; acts "performed wholly for the direct benefit of the public . . ." Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003). "In contrast, municipal officials are not immune from liability for negligence arising out of their ministerial acts . . . acts to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 615.
"Our case law reveals that the determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint . . . [W]here it is apparent from the complaint that the [defendant's] allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper." (Citations omitted; emphasis in original; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 51 n. 8, 881 A.2d 194 (2005).
One factor in determining whether an allegedly negligent action is discretionary or ministerial is the existence of a specific directive indicating how the action is to be performed. Id.; see also Segreto v. Bristol, 71 Conn.App. 844, 857, 804 A.2d 928 (2002) (negligent maintenance of municipally owned property was discretionary where complaint failed to allege municipality had policy or directive). In Martel v. Metropolitan District Commission, supra, 275 Conn. 42, the plaintiff brought a negligence action for injuries he sustained when he crashed his mountain bike on a trail on land the commission owned. He alleged that the defendants were negligent in their design, supervision, inspection and maintenance of the trail, their failure to warn of its dangerous condition and their failure to barricade or close the trail. In response, the defendants moved for summary judgment on the ground that governmental immunity barred the claim because the acts were discretionary as a matter of law.
The Connecticut Supreme Court agreed with the defendant, concluding that the trial court properly decided summary judgment in favor of the defendants. The court particularly found fatal the plaintiff's failure to present evidence of a policy or directive that required the defendants to perform the alleged duties. According to the court, "the failure to present any evidence of a policy or directive requiring the defendants to perform their duties compelled the conclusion that the defendants were inherently required to exercise their judgment in determining whether to supervise, inspect and maintain the trails, to warn recreational users of dangerous conditions and to mark or barricade the trails." Id., 38.
In the present case, the plaintiffs allege that the defendant conducted the investigation "in a negligent manner in that the defendant . . . failed properly to secure the relevant scene, failed properly to investigate the areas proximate to the residence of the decedent, failed to pursue reasonable leads, failed to question apparent witnesses and failed reasonably to evaluate available evidence." As in Martel v. Metropolitan District Commission, the plaintiffs have not presented evidence that the police department had a policy or directive indicating how it was to perform the investigation. In addition, as in Segreto v. Bristol, supra, 71 Conn.App. 857 the plaintiff's "complaint contained no allegation that the city had some policy or directive in place regarding those duties with which it or its employees had failed to comply." Accordingly, while "the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder"; (internal quotation marks omitted) Martel v. Metropolitan District Commission, supra, 275 Conn. 49. In the present case, it is apparent from the complaint that the police investigation was discretionary in nature.
Furthermore, "[i]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988). The Superior Court has consistently held that the "[a]cts and omissions of police officers in the exercise of their duties are discretionary in nature"; Davis-Trapani v. Scarcella, Superior Court, judicial district of New Haven, Docket No. CV 00 0436800 (July 23, 2003, Arnold, J.), aff'd, 83 Conn.App. 903, 853 A.2d 650, cert denied, CT Page 6655 270 Conn. 917, 853 A.2d 531 (2004); see also Peters v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 147192 (January 2, 2001, D'Andrea, J.) ( 28 Conn. L. Rptr. 671, 674); Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. 321879 (March 12, 1998, Nadeau, J.); and "[t]he investigation of crimes and the decisions to make arrests for them is clearly a discretionary rather than a ministerial function." Davis-Trapani v. Scarcella, supra, Superior Court, Docket No. CV 00 0436800; Perrotta v. Enfield, Superior Court, judicial district of Hartford, Docket No. CV 00 596565 (June 15, 2000, Hale, J.T.R.); Gonzalez v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. 253464 (June 4, 1993, Fuller, J.) [ 9 Conn. L. Rptr. 202].
B
The court next addresses, whether in light of the recent case of Doe v. Petersen, the defendant's argument, based on Pane v. Danbury, 267 Conn. 669, 841 A.2d 684 (2004) that the identifiable person, imminent harm exception to governmental immunity does not apply to municipalities, is the correct law. In Pane, the Connecticut Supreme Court discussed whether the identifiable person-imminent harm exception applies to municipalities. The court noted: "[T]here is an [identifiable person, imminent harm] exception to the doctrine of qualified immunity from liability as it applies to a municipal employee, as distinct from the municipality itself . . . That exception does not apply in this case because the claims against [the defendant employee] have been withdrawn." Id., 677-78 n. 9.
Notwithstanding this footnote in Pane and without referring to that case, Doe v. Petersen applied this specific exception to municipalities. "We have identified three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which 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." (Internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 615. In the present case, the relevant exception is the third exception in which "liability may be imposed when 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 . . ." (Emphasis added; internal quotation marks omitted.) Id., 616.
In declining to follow Pane, the trial court commented in Singletary v. Poynton, Superior Court, judicial district of New Haven, Docket No. CV 03 0473378 (June 1, 2006, Licari, J.) that "the only mention of this issue appears in a footnote in which by way of dicta at best the court makes a passing reference to the applicability of the exception to municipal employees but moves on without further discussion. The issue [is] not before the court . . . It would be a quantum leap to transform this cryptic observation into a general rule of law." (Citation omitted.) Id.
Furthermore, other superior courts have declined to apply the footnote. In Rasmus v. Plainville, Superior Court, judicial district of New Britain, Docket No. HHB CV 04 4002902 (October 31, 2006, Shapiro, J.), the court rejected the argument that the defendant presently urges upon the court, specifically that the identifiable person, imminent harm exception does not apply in light of Pane v. Danbury. According to the court, it "must be guided by [the] Supreme Court's more recent, and more extensive, discussion of the subject in Doe v. Petersen." Id.; see also Esposito v. Bethany, Superior Court, judicial district of New Haven, Docket No. CV 06 5002923 (February 14, 2007, Skolnick, J.) [ 43 Conn. L. Rptr. 7] (applying imminent harm exception to municipalities). Accordingly, the court chooses to recognize the imminent harm exception as it applies to municipalities.
C
The defendant next argues that even if the court follows Pane v. Danbury, the identifiable person, imminent harm exception is inapplicable because the plaintiffs have failed to submit any evidence establishing the exception. With respect to the negligence and the negligent infliction of emotional distress counts, the defendant asserts that the plaintiffs have failed to demonstrate that the decedent was an identifiable person, the decedent was subject to imminent harm, and it was apparent to the police department that its conduct was likely to subject the decedent to imminent harm.
The identifiable person, imminent harm exception "requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." Doe v. Petersen, supra, 279 Conn. 616. "If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." Violano v. Fernandez, 280 Conn. 310, 329, 907 A.2d 1188 (2006).
As to whether the harm is apparent, the Connecticut Supreme Court stated: "The apparentness requirement is grounded in the policy goal underlying all discretionary act immunity, that is, keeping public officials unafraid to exercise judgment . . . It surely would ill serve this goal to expose a public official to liability for his or her failure to respond adequately to a harm that was not apparent to him or her." (Citation omitted; internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 616-17.
Two Connecticut police cases are instructive as to the apparentness requirement. In Shore v. Stonington, 187 Conn. 147, 154, 444 A.2d 1379 (1982), the Connecticut Supreme Court held that a police officer who pulled over an intoxicated driver, only to let him drive away and kill another motorist, was entitled to governmental immunity. While releasing the driver placed identifiable victims, i.e. other drivers, in danger of an imminent harm, i.e. an auto accident, the officer could not have been aware that a likely consequence of his action was a fatal collision.
In Davis-Trapani v. Scarcella, supra, Superior Court, Docket No. CV 00 0436800, the plaintiff reported her son missing to the defendant police officers who discovered his body six days later, the victim of a presumed suicide. The plaintiff alleged the defendants were negligent in the investigation of her son's disappearance and that their alleged negligent acts or omissions caused her to suffer emotional distress. After finding the defendants engaged in a discretionary activity, the court considered whether the identifiable person, imminent harm exception applied. In doing so, the court compared the case to another police case, Sestito v. Groton, 178 Conn. 520, 527-28, 423 A.2d 165 (1979), in which a plaintiff brought an action against the defendant town and defendant police officer after her decedent was shot and killed during a fight. The police officer had patrolled the area and witnessed the fight prior to the shooting but did not intervene in time to save the decedent. The Connecticut Supreme Court found the officer might have owed a duty to the decedent, and the claims should have proceeded to a jury.
The court in Davis-Trapani distinguished its facts from Sestito on several grounds. In contrast to Sestito, the defendants were not present at the time and place of the suicide. Nor did the defendants observe the decedent preparing or attempting to commit suicide and then failed to take action to prevent it. The court stated: "The decedent was reported missing like other missing persons before him, but the decedent was not in imminent harm that would have been apparent to the defendants. There are many possibilities and potential outcomes of a missing persons investigation. Any missing person is at risk of some possible danger." (Emphasis added.) Davis-Trapani v. Scarcella, supra, Superior Court, Docket No. CV 00 0436800. The court also found it illogical to leap to a conclusion that the officers' failure to find the decedent caused him to commit suicide. The court said: "It could not have been readily apparent to the defendants that the decedent was in imminent danger of committing suicide at that time. Suicide was only one of many possible outcomes, which may or may not have come to pass, over the period of days that the decedent was missing." Id.; see also Vilton v. Burns, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 000169481 (June 22, 2004, Alander, J.) ( 37 Conn. L. Rptr. 425, 429) ("[t]he 20/20 hindsight provided by the subsequent knowledge that pedestrians were soon injured does not illuminate what the police officers should have known . . .")
As in Davis-Trapani v. Scarcella, supra, Superior Court, Docket No. CV 00 0436800, the defendant could not have been aware that the likely consequence of its actions or omissions would be murder. The brief of the decedent's estate, "John Susman is Missing But Not Dead," details numerous reasons why the decedent was presumed to be missing but not dead: a hostile divorce, a "horrible mental condition" compounded by a significant intake of prescription drugs and the decedent's "notes, which talked about freedom, talked about his dying life . . . getting away from it all and the fragility of life . . ." According to page eighteen, not only did Arnold and Ada Susman believe that the decedent had fled voluntarily and was alive, but also Beth Segali shared the same belief. Furthermore, as the reconstruction report states, there is still no determination as to the decedent's cause of death. According to page two, "[t]he medical examiner listed the cause of death as undetermined." Page thirteen states: "Based on the location where the body remains were found, the condition of the quilt, the condition of the bone remains, and the condition of the clothing remains, there is no direct forensic evidence to suggest the manner of death . . ." The evidence demonstrates that it was not apparent to the defendant that its alleged negligent acts or omissions would subject the decedent to an imminent harm.
Thus, since one of the three prongs of the exception has not been satisfied, this court need not discuss the two other prongs of the identifiable person, imminent harm exception. In addition, inasmuch as the defendant is immune from suit on the negligence claims, the court also need not address the defendant's duty of care and proximate causation arguments.
II COUNT THREE
The defendant moves for summary judgment on the § 1983 claim in count three on three grounds. The defendant argues that the plaintiffs have not produced any evidence to establish a denial of the right of access to the courts because, as a matter of law, the alleged police negligence of an inadequate investigation is insufficient to support a claim under § 1983, and the underlying wrongful death claim is speculative. Next, the defendant argues that the plaintiffs have not produced evidence of the requisite illegal pattern or practice as required for municipality liability under Monell v. New York Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Lastly, it argues that the plaintiffs have not identified an individual with "final policymaking authority." The defendant maintains that the plaintiffs' reference to the defendant's police department Captain James Criscuolo, its Chief of Police Leonard Gallo and its Detective Pete Simoni as the defendant's policymaking officials is contrary to the language in the defendant's charter, which states that the members of the board of police commissioners are the highest policymaking officials in the police department.
The plaintiffs counter that the evidence shows that the defendant engaged in reckless conduct that deprived them of their constitutional right of access to the courts to redress a legal wrong, which is all that is needed to survive summary judgment on a § 1983 action. They also argue that they have satisfied the requisite pattern or practice for municipal liability under Monell. According to the plaintiffs, the official policy necessary to impose municipal liability need only amount to "a conscious or deliberate indifference to the constitutional rights of person with whom the police come into contact," which they claim the evidence establishes.
A
"The United States Supreme Court has recognized that, embedded in the First Amendment right to petition the government for a redress of grievances, is entitlement to seek recompense from the courts . . . To state a valid § 1983 claim, [the plaintiffs] must establish that (1) the conduct complained of was committed by a person acting under color of state law, and (2) this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States . . . The United States Supreme Court [ Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)] recently restated that in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated . . . Therefore, the contours of the federal right of access to the courts must be examined.
To establish a violation of the right to access the courts, the plaintiffs must demonstrate that the alleged deprivation actually interfered with their access to the courts or prejudiced an existing action . . . In addition, the plaintiffs must demonstrate that an actual injury resulted from the denial of access to the courts . . . The actual injury requirement for a denial of access to the courts is more than just any type of frustrated legal claim . . . Therefore . . . to establish a violation of a right of access to courts, [the plaintiffs] must demonstrate that [the] defendant caused actual injury . . . [that the defendant] took or was responsible for actions that hindered [the plaintiffs'] efforts to pursue a legal claim . . ." (Citations omitted; internal quotation marks omitted.) Lombardi Rest Home, Inc. v. Richter, 63 Conn.App. 646, 653-54, 778 A.2d 230 (2001).
In Lombardi Rest Home, Inc. v. Richter, Superior Court, judicial district of New Haven, Docket No. 392378 (June 29, 1999, Fracasse, J.), aff'd, Lombardi Rest Home, Inc. v. Richter, supra, 63 Conn.App. 646, the plaintiffs alleged that a "written waiver of their right to appeal prior methods of computing payment rates" violated their first amendment right to petition for redress of grievances and of access to the courts. The defendants moved for summary judgment on the ground that there was no genuine issue of material fact that the plaintiffs' complaint failed to state a cause of action. The court granted the defendants' motion, finding the plaintiffs did not allege that "the defendants interfered with their efforts to have their grievances heard." Lombardi Rest Home, Inc. v. Richter, supra, Superior Court, Docket No. 392378. The court reasoned that the plaintiffs did "not allege that they failed to file an appeal because of some act by the defendants. Indeed, the complaint is bereft of any explanation for why the plaintiffs failed to file an appeal." Id.
On appeal, the Appellate Court affirmed the trial court's grant of the motion. In doing so, they applied the analysis of the United States Court of Appeals for the Sixth Circuit [ Swekel v. River Rouge, 119 F.3d 1259, 1263-64 (6th Cir. 1997), cert. denied sub nom. Swekel v. Harrington, 522 U.S. 1047, 118 S.Ct. 690, 139 L.Ed.2d 636 (1998)] to decide whether a violation of the right of access to the courts had occurred: "If the abuse occurs pre-filing, then the plaintiff[s] must establish that such abuse denied [them] effective and meaningful access to the courts . . . [They] can do this only by showing that the [defendant's] actions foreclosed [them] from filing suit in state court or rendered ineffective any state court remedy [they] previously may have had." (Internal quotation marks omitted.) Lombardi Rest Home, Inc. v. Richter, supra, 63 Conn.App. 654-55, citing Swekel v. River Rouge, supra, 1263-64. The court concluded the plaintiffs alleged a pre-filing violation, which "did not foreclose legal action, nor did it render ineffective any state court remedy"; Lombardi Rest Home, Inc. v. Richter, supra, 655; and therefore did not deny them access to the courts.
In the present case, the plaintiffs allege that from October 6, 1992 to June 7, 2001, the defendant conducted a negligent investigation into the disappearance of the decedent, which denied them a right of access to the courts for redress of legal wrongs. As in Lombardi Rest Home, Inc., supra, Superior Court, Docket No. 392378, the plaintiffs do not allege that the defendant "interfered with their efforts to have their grievances heard" and, in fact, "the complaint is bereft of any explanation for why the plaintiffs failed to file [a lawsuit]." Id.
Furthermore, given the Sixth Circuit analysis, the evidence is to the contrary that the defendant denied the plaintiffs any access to the courts. The deposition testimony of Arnold Susman reveals that the plaintiffs did not commence a lawsuit until 2001, when the decedent's body was discovered because it was not until 2001 that they "felt that the lawsuit was appropriate . . ." Arnold Susman testified: "[O]bviously, we weren't aware of the consequences until 2001." He also noted: "[Twenty-twenty] hindsight, of course, I would have filed a lawsuit in [19]92."
In addition, the defendant's evidence is also to the contrary that the defendant rendered any state court remedy ineffective. In his deposition testimony, Arnold Susman testified that it was his contention that the alleged negligence prevented the plaintiffs from bringing a wrongful death suit. He stated that "conceivably if [the decedent] was murdered, there is a wrongful death lawsuit, and obviously not knowing who was responsible." In addition to the plaintiffs failing to provide evidence in support, they concede, and the defendant's evidence indicates, that there has not been a determination made that the decedent was murdered. Based on the reconstruction report, "[t]he medical examiner listed the cause of death as undetermined" and "there is no direct forensic evidence to suggest the manner of death . . ." Furthermore, the plaintiffs did initially plead a wrongful death claim, which the court struck, and the plaintiffs chose not to replead. See Susman v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 02 0468497 (September 28, 2004, Corradino, J.).
In her deposition testimony, Ada Susman does not cite to another type of lawsuit that the defendant's alleged negligence rendered ineffective.
B
The defendant also argues that the plaintiffs have failed to produce evidence of a pattern or practice and failed to identify a policy setting official as are required under Monell to establish municipal liability for a § 1983 claim. The plaintiffs counter that they satisfy the official policy requirement through the deliberate indifference standard to the constitutional rights of persons with whom the police have contact.
"[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. New York Dept. of Social Services, supra, 436 U.S. 694.
"To state a cause of action under § 1983, a plaintiff must allege that a deprivation of federal rights has occurred under color of any statute, ordinance, regulation, custom or usage . . . [T]he touchstone of [a] § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution . . . [M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by city policymakers. In addition, § 1983 also authorizes suit for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body's official decision making channels." (Citations omitted; internal quotation marks omitted.) Tedesco v. Stamford, 215 Conn. 450, 456, 576 A.2d 1273 (1990); rev'd on other grounds, 222 Conn. 233, 610 A.2d 574 (1992).
"To impose liability, on a municipality under § 1983, the plaintiff must identify a municipal policy or custom that caused the plaintiff's injury . . . The plaintiff must . . . demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." (Citation omitted; internal quotations marks omitted.) Vilton v. Burns, supra, 37 Conn. L. Rptr. 433.
In Vilton, the plaintiff asserted, inter alia, a § 1983 claim against the defendant police officers and the defendant city, alleging that they violated the decedent's substantive due process rights by creating a dangerous condition when they failed to arrest the intoxicated driver and allowed him to drive away and hit the decedent. In support of their argument, the plaintiffs submitted the deposition testimony of the police chief who testified that he approved of the police officers' actions and found them in full conformity with the practices and procedures of the police department. The city responded that it was entitled to summary judgment because the plaintiff did not allege a policy or custom that resulted in a deprivation of constitutional rights. The Superior Court agreed with the defendants. According to the court, such evidence failed to satisfy the requirement necessary to establish municipal liability under § 1983. The court stated: "After the fact approval by a policy maker of an employee's conduct does not demonstrate action by a municipality that can be said to be the moving force behind an injury. Nor can it be the direct cause of the injury complained of, since the injury occurred prior to the officials' sanctioning of the conduct." Id.
In the present case, the plaintiffs fail to provide evidence to support a § 1983 claim. While count three of their complaint states that "the acts and omissions of the defendant's employees, servants and agents . . . constituted a pattern and practice so well-known to the highest policy-setting officials of the defendant that they constituted the policy of the defendant," the plaintiffs do not provide evidence of this pattern and practice or policy. With respect to a pattern or practice, the plaintiffs testified in their depositions that they were unaware of other police department investigations being conducted in the same allegedly negligent manner, which would constitute a pattern and practice. In his answer to interrogatories, Arnold Susman did not identify a "specific instance, incident, event, action, omission" that constitutes the alleged pattern and practice. He instead merely restated the paragraphs in the complaint. With respect to a policy, the plaintiffs do not identify in their deposition testimonies a procedure, rule or protocol that the police department violated in securing the house and area, interviewing witnesses, conducting the canine search, pursuing leads and conducting the helicopter, canine and land search.
In an earlier ruling in this case; Susman v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 02 0468497 (January 27, 2004, Robinson, J.); the court denied the defendant's motion to strike this count. The court stated: "In order to prevail on their claim that the defendant violated [§]1983, the plaintiffs will have to prove that a custom or policy resulted in their harm. But, to defeat the motion to strike, the plaintiffs need merely sufficiently make the allegation. While this court is skeptical, given the known facts of this case, that the plaintiffs will be able to present evidentiary facts to support their [§]1983 claim, such observation is irrelevant to the determination of the motion." (Emphasis added.) Still, as of today, the plaintiffs have not presented evidentiary facts to support their claim.
Accordingly, since the defendant has established there is no genuine issue of material fact as to the plaintiffs' failure to state a cause of action for their § 1983 claim, the defendant is entitled to judgment as a matter of law. In addition, inasmuch as the defendant is immune from suit on the negligence claims and the plaintiffs have failed to establish a § 1983 claim, the court need not address the defendant's statute of limitations argument.
This court does not have to address the plaintiffs' claim under § 1988, since it is a remedy for a violation of a plaintiff's civil rights. See footnote 3.
The defendant also asserts a statute of limitations defense as to all of the claims based on a three-year time limitation for negligence claims and for the § 1983 claim. The plaintiffs respond that the time period did not begin to run until the date of death of the decedent, which cannot be determined, and, therefore, it "is for a jury to decide when the operative facts occurred that the court will instruct started the running of the statute."
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment on all three counts, negligence, negligent infliction of emotional distress and § 1983, of the plaintiffs' complaint.