THURMAN v. CITY OF TORRINGTON Civ. No. H-84-120.
595 F.Supp. 1521 (1984)
Tracey THURMAN, et al. v. CITY OF TORRINGTON, et al.
United States District Court, D. Connecticut.
October 23, 1984.
Burton M. Weinstein, Weinstein, Weiner & Shapiro, Judith A. Mauzaka, Bridgeport, Conn., for plaintiffs.
Jesse M. Frankel, Cesar A. Noble, Stoner, Gross, Chorches, Lapuk & Kleinman, Hartford, Conn., Arnold J. Bai, Thomas M. Germain, Bai, Pollock & Dunnigan, Bridgeport, Conn., Timothy F. Woodbridge, West Hartford, Conn., Gerald R. Reis, Torrington, Conn., for defendants.
RULING ON MOTION TO DISMISS
BLUMENFELD, Senior District Judge.
The plaintiffs have brought this action pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988, as well as the fifth, ninth, and fourteenth amendments to the Constitution, alleging that their constitutional rights were violated by the nonperformance or malperformance of official duties by the defendant police officers. In addition, the plaintiffs seek to hold liable the defendant City of Torrington (hereinafter, the "City"). The defendant City has filed a motion to dismiss the plaintiffs' complaint, or various claims therein, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.
On a motion to dismiss, the sole issue is whether under the facts alleged in the plaintiff's complaint it appears to a certainty that the plaintiff is entitled to no relief. Holmes v. Silver Cross Hospital of Joliet, Illinois,
Between early October 1982 and June 10, 1983, the plaintiff, Tracey Thurman, a woman living in the City of Torrington, and others on her behalf, notified the defendant City through the defendant police officers of the City of repeated threats upon her life and the life of her child, the plaintiff Charles J. Thurman, Jr., made by her estranged husband, Charles Thurman. Attempts to file complaints by plaintiff Tracey Thurman against her estranged husband in response to his threats of death and maiming were ignored or rejected by the named defendants and the defendant City.
An abbreviated chronology of the plaintiff's attempted and actual notifications of the threats made against her and her son by her estranged husband to the defendant City and police officers is appropriate for consideration of this motion.
In October 1982, Charles Thurman attacked plaintiff Tracey Thurman at the home of Judy Bentley and Richard St. Hilaire in the City of Torrington. Mr. St. Hilaire and Ms. Bentley made a formal complaint of the attack to one of the unnamed defendant police officers and requested efforts to keep the plaintiff's husband, Charles Thurman, off their property.
On or about November 5, 1982, Charles Thurman returned to the St. Hilaire-Bentley residence and using physical force took the plaintiff Charles J. Thurman, Jr. from said residence. Plaintiff Tracey Thurman and Mr. St. Hilaire went to Torrington police headquarters to make a formal complaint. At that point, unnamed defendant police officers of the City of Torrington refused to accept a complaint from Mr. St. Hilaire even as to trespassing.
On or about November 9, 1982, Charles Thurman screamed threats at Tracey while
On December 31, 1982, while plaintiff Tracey Thurman was at the Bentley-St. Hilaire residence, Charles Thurman returned to said residence and once again threatened her. She called the Torrington Police Department. One of the unnamed police officer defendants took the call, and, although informed of the violation of the conditional discharge, made no attempt to ascertain Charles Thurman's whereabouts or to arrest him.
Between January 1, 1983 and May 4, 1983, numerous telephone complaints to the Torrington Police Department were taken by various unnamed police officers, in which repeated threats of violence to the plaintiffs by Charles Thurman were reported and his arrest on account of the threats and violation of the terms of his probation was requested.
On May 4 and 5, 1983, the plaintiff Tracey Thurman and Ms. Bentley reported to the Torrington Police Department that Charles Thurman had said that he would shoot the plaintiffs. Defendant police officer Storrs took the written complaint of plaintiff Tracey Thurman who was seeking an arrest warrant for her husband because of his death threat and violation of his "conditional discharge." Defendant Storrs refused to take the complaint of Ms. Bentley. Plaintiff Tracey Thurman was told to return three weeks later on June 1, 1983 when defendant Storrs or some other person connected with the police department of the defendant City would seek a warrant for the arrest of her husband.
On May 6, 1983, Tracey filed an application for a restraining order against Charles Thurman in the Litchfield Superior Court. That day, the court issued an ex parte restraining order forbidding Charles Thurman from assaulting, threatening, and harrassing Tracey Thurman. The defendant City was informed of this order.
On May 27, 1983, Tracey Thurman requested police protection in order to get to the Torrington Police Department, and she requested a warrant for her husband's arrest upon her arrival at headquarters after being taken there by one of the unnamed defendant police officers. She was told that she would have to wait until after the Memorial Day holiday weekend and was advised to call on Tuesday, May 31, to pursue the warrant request.
On May 31, 1983, Tracey Thurman appeared once again at the Torrington Police Department to pursue the warrant request. She was then advised by one of the unnamed defendant police officers that defendant Schapp was the only policeman who could help her and that he was on vacation. She was told that she would have to wait until he returned. That same day, Tracey's brother-in-law, Joseph Kocsis, called the Torrington Police Department to protest the lack of action taken on Tracey's complaint. Although Mr. Kocsis was advised that Charles Thurman would be arrested on June 8, 1983, no such arrest took place.
On June 10, 1983, Charles Thurman appeared at the Bentley-St. Hilaire residence in the early afternoon and demanded to speak to Tracey. Tracey, remaining indoors, called the defendant police department asking that Charles be picked up for violation of his probation. After about 15 minutes, Tracey went outside to speak to her husband in an effort to persuade him not to take or hurt Charles Jr. Soon thereafter, Charles began to stab Tracey repeatedly in the chest, neck and throat.
Approximately 25 minutes after Tracey's call to the Torrington Police Department
It is also alleged that at all times mentioned above, except for approximately two weeks following his conviction and sentencing on November 10, 1982, Charles Thurman resided in Torrington and worked there as a counterman and short order cook at Skie's Diner. There he served many members of the Torrington Police Department including some of the named and unnamed defendants in this case. In the course of his employment Charles Thurman boasted to the defendant police officer patrons that he intended to "get" his wife and that he intended to kill her.
I. Motion to Dismiss the Claims of Tracey Thurman
The defendant City now brings a motion to dismiss the claims against it. The City first argues that the plaintiff's complaint should be dismissed for failure to allege the deprivation of a constitutional right. Though the complaint alleges that the actions of the defendants deprived the plaintiff Tracey Thurman of her constitutional right to equal protection of the laws, the defendant City argues that the equal protection clause of the fourteenth amendment "does not guarantee equal application of social services." Defendant's Memorandum at 4. Rather, the defendant City argues that the equal protection clause "only prohibits intentional discrimination that is racially motivated" citing Arlington Heights v. Metropolitan Housing Dev. Corp.,
The defendant City's argument is clearly a misstatement of the law. The application of the equal protection clause is not limited to racial classifications or racially motivated discrimination. The equal protection clause will be applied to invalidate state laws which classify on the basis of alienage for the purpose of the distribution of economic benefits unless that law is necessary to promote a compelling or overriding state interest. Graham v. Richardson,
In the instant case, the plaintiffs allege that the defendants use an administrative classification that manifests itself in discriminatory treatment violative of the equal protection clause. Police protection in the City of Torrington, they argue, is
Police action is subject to the equal protection clause and section 1983 whether in the form of commission of violative acts or omission to perform required acts pursuant to the police officer's duty to protect. Smith v. Ross,
Although the plaintiffs point to no law which on its face discriminates against victims abused by someone with whom they have a domestic relationship, the plaintiffs have alleged that there is an administrative classification used to implement the law in a discriminatory fashion. It is well settled that the equal protection clause is applicable not only to discriminatory legislative action, but also to discriminatory governmental action in administration and enforcement of the law. See Yick Wo v. Hopkins,
If the City wishes to discriminate against women who are the victims of domestic violence, it must articulate an important governmental interest for doing so. Craig v. Boren,
B. Finesmith, Police Response to Battered Women: Critique and Proposals for Reform, 14 Seton Hall L.Rev. 74, 79 (1983) (citations omitted).
Del Martin, "Scope of the Problem," Battered Women: Issues of Public Policy (1978) (Consultation Sponsored by the United States Commission on Civil Rights) (hereinafter "Consultation") at 6.
Today, however, any notion of a husband's prerogative to physically discipline his wife is an "increasingly outdated misconception." Craig v. Boren, 429 U.S. at 198-99, 97 S.Ct. at 457-58. As such it must join other "archaic and overbroad" premises which have been rejected as unconstitutional. Crawford v. Cushman,
A man is not allowed to physically abuse or endanger a woman merely because he is her husband. Concommitantly, a police officer may not knowingly refrain from interference in such violence, and may not "automatically decline to make an arrest simply because the assaulter and his victim are married to each other." Bruno v. Codd,
II. Motion to Dismiss the Claims of Charles Thurman, Jr.
Plaintiff Charles Thurman, Jr. also claims that the City of Torrington denied him the equal protection of the laws. He alleges that the defendants fail to protect children against the domestic violence of fathers and stepfathers. This claim fails on several grounds. Other than the June 10, 1983 assault, Charles Thurman, Jr. has alleged no attacks made against him. Unlike his mother Tracey Thurman, Charles was not alleged to be the victim of an attack in October of 1982 at the home of Judy Bentley and Richard St. Hilaire. It is also not alleged that Charles Thurman, Jr. was present on November 9, 1982, when his father broke the windshield of the vehicle carrying Tracey Thurman. There is no allegation that one of the conditions of Charles Thurman's condition discharge following his conviction for breach of peace on November 10, 1982 was to keep away from Charles Thurman, Jr., while it is alleged that one of the conditions was that he was to stay away from the plaintiff Tracey Thurman. Additionally, there is no allegation that the May 6, 1983 restraining order issued by the Litchfield Superior Court forbidding Charles Thurman from assaulting, threatening and harassing plaintiff Tracey Thurman, was issued in order to protect Charles Thurman, Jr. as well. Thus Charles Thurman Jr. did not suffer from a continuous failure of the police to provide him protection as did his mother, Tracey Thurman. The isolated failure of the defendants to prevent the June 10, 1983 assault on Charles Thurman, Jr. does not violate any constitutional rights. Charles Thurman, Jr.'s failure to adequately allege that the defendants denied him equal protection of the law requires that all claims of Charles Thurman, Jr. be dismissed for failure to state a claim upon which relief can be granted.
III. Have the Plaintiffs Properly Alleged a Custom or Policy on the Part of the City of Torrington?
The plaintiffs have alleged in paragraph 13 of their complaint as follows:
Some degree of specificity is required in the pleading of a custom or policy on the part of a municipality. Mere conclusory allegations devoid of factual content will not suffice. See Schramm v. Krischell, 84 F.R.D. 294 (D.Conn.1979). As this court has pointed out, a plaintiff must typically point to facts outside his own case to support his allegation of a policy on the part of a municipality. Appletree v. City of Hartford,
In the instant case, however, the plaintiff Tracey Thurman has specifically alleged in her statement of facts a series of acts and omissions on the part of the defendant police officers and police department that took place over the course of eight months. From this particularized pleading a pattern emerges that evidences deliberate indifference on the part of the police department to the complaints of the plaintiff Tracey Thurman and to its duty to protect her. Such an ongoing pattern of deliberate indifference raises an inference of "custom" or "policy" on the part of the municipality. See Estelle v. Gamble,
IV. The Unidentified Police Officers
Defendant City of Torrington has moved to dismiss the claims against the unidentified police officers claiming that this court lacks jurisdiction over these parties as they have not been properly served. At this stage of the proceedings, such a dismissal would be inappropriate:
V. Pendent Jurisdiction Over Plaintiffs' State Law Claim
The defendant City of Torrington has moved to dismiss the sixth count of plaintiffs' complaint which asks this court to exercise its discretionary powers to maintain pendent jurisdiction over their state claim based upon Conn.Gen.Stat. § 7-465 which concerns a municipality's liability for the tortious acts of its employees. Although the defendant City has moved to dismiss this count for alleged lack of jurisdiction, there is nothing in the defendant's accompanying memorandum which either discusses or supports its request. The plaintiffs correctly point to United Mine Workers v. Gibbs,
In the instant case, however, I will decline to exercise pendent jurisdiction over the state law claim. In the case of Gonzalez v. Doe,
Id. at 686-87 (footnotes omitted).
The sixth count of the complaint is, therefore, dismissed.
For the reasons stated above, the City's motion to dismiss the complaint for failure to allege the deprivation of a constitutional right is denied; the City's motion to dismiss the claims of Charles Thurman, Jr. is granted; the City's motion to dismiss the claims against it for failure to properly allege a "custom" or "policy" on the part of the City is denied; the City's motion to dismiss the claims against the unidentified police officers for lack of jurisdiction due to improper service is denied without prejudice to its renewal at a later date; and, finally, the City's motion to dismiss the sixth count of the complaint is granted.
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