OLADOKUN v. RYAN

rranted amount of heavy force in light of the minimal threat Plaintiffs say they posed. Defendants contend that the claims against Lovello and Salvatore arising out of the actual raid must be dismissed, not because there were no allegations of constitutional violations before or during the raid, but because there is no allegation that either Lovello or Salvatore was personally involved in any unconstitutional conduct.

It is well settled within the Second Circuit that defendants' personal involvement in alleged constitutional deprivations is required under § 1983, Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010), and that the doctrine of respondeat superior alone "does not suffice to impose liability for damages under section 1983 on a defendant acting in a supervisory capacity," Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d Cir. 2003).

The personal involvement of a supervisory defendant may be shown by evidence of an official's

(1) failure to take corrective action after learning of a subordinate's unlawful conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on information regarding the unlawful conduct of subordinates.

Id. From Plaintiffs' allegations that Lovello and Salvatore authorized the raid and directly supervised SWERT during it, it can be plausibly inferred that Lovello and Salvatore had notice of and acquiesced to the conduct authorized by the Operation Plan, despite objections by some SWERT team-members. Salvatore and Lovello's alleged knowing acquiescence to the use of excessive force in violation of the Fourth and Fourteenth amendments during the SWERT raid could give rise to their personal liability.

Unlike Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003), which dismissed claims of supervisory liability for remote supervising officers who allegedly directed a home raid during which excessive force was used because the plaintiffs had failed to allege "facts which support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so," Plaintiffs here allege that the Operation Plan called for the use of force excessive under the circumstances and that Salvatore and Lovello authorized and oversaw the raid that employed such force

ii. Failure to train (Count Three of the Terebesi Amended Complaint and Counts I and II of the Guizan Amended Complaint)

Salvatore and Lovello also move to dismiss Plaintiffs' claims that they violated Plaintiffs' constitutional rights by failing to train SWERT team members adequately in proper police practice and procedures, "including the knock and announce requirement of search warrant execution, entry tactics, use of distraction devices, firearms training, disclosing information to the team, standard operating procedures, and the use of deadly force." (Guizan Am. Compl. at ¶ 98; see also, Terebesi Am. Compl. at ¶ 26.) Plaintiffs further allege that the raid was launched in the absence of any written policies governing the deployment of SWERT to execute search warrants and in the use of diversionary explosive devices, resulting in the use of excessive force during the raid. Those claims are properly analyzed under the Fourth Amendment and not the Fourteenth Amendment. See Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (noting that the district court had correctly classified plaintiff's failure-to-train claim "as one brought under the Fourth Amendment, which prohibits unreasonable seizures of persons, as opposed to the Fourteenth Amendment, which guarantees substantive due process" because the failure to train allegedly led to the use of excessive force).

As to Salvatore's argument that Plaintiffs' have failed to allege sufficient facts to make out a failure-to-train claim, the Supreme Court has explained that "the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).

In Harris, the Court provided as an example of deliberate indifference a municipality's failure to train police officers on the proper use of deadly force, where "city policymakers know to a moral certainty their police officers will be required to arrest fleeing felons" and that "[t]he city has armed its officers with firearms, in part to accomplish this task." Id. at 390 n. 10. In such a situation, "the need to train officers in the constitutional limitations on the use of deadly force . . . can be said to be `so obvious' that failure to do so would properly characterized as `deliberate indifference' to constitutional rights." Id.

To prove "deliberate indifference," plaintiffs must 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."

Okin v. Village of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 440 (2d Cir. 2009). "[A] policymaker does not exhibit deliberate indifference by failing to train employees for rare or unforeseen events." Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007).

See also Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992), in which the Second Circuit reversed dismissal of a failure-to-train and supervise claim brought against the City of New York by a plaintiff convicted of murder as a result of perjured testimony and the cover-up of exculpatory evidence, where the plaintiff alleged that the City failed to train and supervise police and prosecutors in 1971 on their obligations not to suppress or suborn perjury. The Second Circuit explained that a "complete failure" to train ADAs on their obligations to disclose exculpatory materials under Brady v. Maryland, 373 U.S. 83 (1963), could constitute deliberate indifference because "the district attorney knows to a moral certainty that ADAs will acquire Brady material," and because the court did "not think that in 1971, just seven years after Brady was decided, that the Brady standard was so obvious or easy to apply as to require, as a matter of law, no training or supervision," and a jury could have therefore concluded that the failure to train or supervise as alleged would likely result in ADAs making the wrong choices about disclosure of Brady material. Walker, 974 F.2d at 300.

While Plaintiffs do not actually allege that Salvatore and Lovello "knew to a moral certainty" that SWERT team members would be, or had previously been involved with house raids, deadly force, and employing explosive distraction devices, their allegations that Salvatore and Lovello oversaw and approved the policies and procedures of "a specialized, tactical, `SWAT-type' unit" present sufficient plausibility that they knew that circumstances would arise at some point where SWERT members would be called on to launch a tactical raid and engage in forcible home entry involving the use of firearms and distraction devices. And, as in the Harris hypothetical and Walker, it is reasonable to infer that the failure to train SWERT team-members on proper raid techniques creates a possibility that SWERT team-members could "mishandle" a situation in which they are required to use those techniques and tools, leading to the deprivation of constitutional rights. Therefore, since it is readily inferrable that SWERT team members were ready and armed to engage in home raids, which are high-risk operations, they would require a specific type of training, and the absence of adequate training for SWERT team members, for which Plaintiffs allege Salvatore and Lovello to be responsible, is actionable under the Fourth Amendment.

Salvatore maintains that "[Guizan] has made no claim that the alleged training and supervision deficiencies she purports to identify were matters that ever presented to any municipal defendant a constitutional problem, before this incident" (Monroe Mem. Supp. Mot. Dismiss Guizan [Doc. # 73] at 14), implying that such a showing is required to sustain a claim of deliberate indifference. However, neither Harris nor Walker require showing that a constitutional violation has previously occurred for a policymaker to know to a moral certainty that a constitutional violation may occur in the future, necessitating training.

iii. Qualified Immunity

Salvatore also contends that Plaintiffs' claims against him — that he knew about and acquiesced to the raid on Terebesi's home and that he failed to train or supervise SWERT team members — must be dismissed because he is entitled to qualified immunity. As previously discussed, Plaintiffs have sufficiently alleged Salvatore's personal involvement, both in approving and supervising the raid and in failing to train and supervise SWERT, but Salvatore nonetheless argues that he is entitled to qualified immunity because in the exercise of his professional judgment, he reasonably could have been mistaken as to whether his conduct violated Plaintiffs' constitutional rights.

Although Lovello asserts qualified immunity as a ground for dismissal, his motion and briefing lay out no supporting argument, and counsel for Darien was absent at oral argument. Therefore, the Court is unable to evaluate the merits of Lovello's claim of qualified immunity, and it will be denied.

The Supreme Court explained in Harris that the need to train police in constitutional limitations on use of deadly force is "so obvious" that failure to do so constitutes deliberate indifference. Harris, 489 U.S. at 390 n. 10. Inasmuch as the SWERT team is armed with lethal weapons and tasked with launching raids on homes, the law requiring proper training on the circumstances and method of their use given the potentially grave results to targeted persons is clearly established, and Salvatore's alleged failure to exercise professional judgment precludes qualified immunity for the failure-to-train claims at this stage.

As discussed above, Plaintiffs have adequately alleged Salvatore's personal involvement in the raid by the SWERT team in response to reports of a non-violent drug offense, where neither plaintiff posed a threat or had a violent history, and the weapons discharge outside Terebesi's home earlier in May 2008 did not give the police any reason to believe either Plaintiff would resist arrest or evade arrest by flight, particularly since Terebesi had peacefully complied with all previous police requests. Given that the Graham test for excessive force is clearly established law, and Plaintiffs have alleged facts that, if proved, may constitute an objectively unreasonable use of force in deploying a SWERT team in an otherwise non-violent situation, Salvatore is not entitled to qualified immunity at this stage for his personal involvement in the SWERT team's raid.

2. Monroe Municipal Liability

The Town of Darien does not move to dismiss claims against it.

The Town of Monroe moves to dismiss Plaintiffs' Fourth and Fourteenth Amendment claims on the grounds that Plaintiffs insufficiently alleged deliberate indifference to support municipal liability under Harris or municipal liability for any Fourth Amendment violations during the raid itself. Municipal liability is limited to constitutional violations caused by an official policy or custom or final policymaker acting within his or her area of policymaking. City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). This limitation serves "to distinguish acts of the municipality from acts of employees of the municipality, and thereby make[s] clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (citing Monell v. City of New York, 436 U.S. 658 (1978)).

Plaintiffs allege that as a member of the BPC, and pursuant to the MAC, Salvatore was an official with final policymaking authority for the Town of Monroe on matters pertaining to SWERT. Since the specific exercise of Salvatore's policymaking authority alleged — failure to train and supervise SWERT and knowledge of and acquiescence to the raid on the Terebesi home — could give rise to constitutional violations, as discussed above, Plaintiffs' allegations are sufficient to show Monroe's municipal liability for constitutional violations by its official policy under Salvatore to be plausibly feasible, and their claims against Monroe will not be dismissed.

3. Sergeant Torreso

Monroe Defendant Sergeant Torreso moves to dismiss Guizan's Fourth Amendment § 1983 claim against him on the basis that Guizan failed to plausibly allege that Torreso was a proximate cause of the death of Guizan's decedent, that he had any personal involvement in the initial decision to deploy SWERT or in the preparation of the Operation Plan, and that he had any realistic opportunity to intercede to prevent Sweeney from shooting Gonzalo Guizan. However, Guizan alleged that "[ a] ll defendant members of SWERT . . . had an affirmative duty to intercede to stop the constitutional violations alleged herein" (Guizan Am. Compl. at ¶ 89 (emphasis added)), and specifically that Torreso had an opportunity to intercede, shattered the dining room window, and then threw a DefTech 25 explosive into the home that detonated in the dining room, just through an open doorway from Guizan and Terebesi. From these factual allegations, it can be reasonably inferred that he was part of the raid operation and near Gonzalo Guizan moments from when he was shot. At this stage, this is sufficient to support a claim of failure to intercede against Torreso.

Torreso also argues that Plaintiffs' Fourteenth Amendment claims against him should be dismissed, absent any allegations that he played any role pre-seizure activities and decision-making. While Plaintiffs allege that Torreso participated in the raid itself, they do not allege that he was responsible for training SWERT-team members, developing departmental policies, or playing a role in the development of the Operation Plan, and there is therefore no factual allegation supporting the claim of Fourteenth Amendment liability. Plaintiffs' Fourteenth Amendment claims against Torreso will be dismissed.

Although the Fourth Amendment is the explicit source of constitutional protection in excessive force claims, the Fourteenth Amendment is applicable to claims against Torreso arising out of any pre-raid conduct.

Finally, Torreso maintains that he is entitled to qualified immunity because his personal conduct was objectively reasonable. However, Torreso is alleged to have been personally involved in what is plausibly described as an objectively unreasonable raid, given the minimal threat posed, the extreme force used, and the circumstances surrounding his no-knock entry. See Richards v. Wisconsin, 520 U.S. 385, 391-92 (1997) ("the fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case"). Therefore, he has not shown that he is entitled to qualified immunity at this stage.

4. Sergeant Cirillo

Qualified immunity is the only basis for Cirillo's motion to dismiss.

Sergeant Cirillo also claims that qualified immunity protects him from suit both for his role in formulating the Operation Plan and in the raid itself. Plaintiffs alleged that Cirillo was one of six police officers who developed the "Operation Plan" for the SWERT assault and that he participated in the raid itself.

In arguing that the allegations show he did not violate Plaintiffs' Fourth Amendment rights, Cirillo relies on Gonzalez v. Reno, in which plaintiff homeowners' claims against the Attorney General, the Commissioner of the INS, the Deputy Attorney General, and an INS Agent, were dismissed on grounds of qualified immunity because the plaintiffs failed to allege facts to support a causal connection between those defendants' conduct and any constitutional violations that occurred during the raid looking for Elian Gonzalez. 325 F.3d 1228, 1235-36 (11th Cir. 2003).

Cirillo does not address Plaintiffs' Fourteenth Amendment claims, and in the absence of any argument supporting dismissal of those claims, they will remain.

In marked contrast, Cirillo is alleged to have not only participated in the raid, but to have developed the Operation Plan, whose execution involved excessive force and disregard of the knock-and-announce rule, in violation of clearly established law. See Graham, 490 U.S. at 396. Therefore, at this stage, Plaintiffs' claims against Cirillo for both planning and participating in the raid are not barred by the qualified immunity doctrine.

While Richards recognized that drug investigations frequently pose special risks to officer safety, it explained that the clearly established knock-and-announce rule may only be lawfully abandoned when police "have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." 520 U.S. at 393-94. Plaintiffs are entitled to discovery on Cirillo's assertion that as a result of the existence of this exception, he did not knowingly violate this clearly established law when he stormed the house.

B. State law claims

The Darien Defendants do not move to dismiss state-law claims.

The Monroe Defendants move to dismiss state law claims of assault and battery, negligence, recklessness, and intentional infliction of emotional distress, arguing that Plaintiffs have failed to allege specific facts that would implicate Torreso and Salvatore in any tortious conduct. Plaintiffs respond that even though they have not alleged that Torreso and Salvatore personally committed all of the tortious conduct, that conduct can be imputed to Torreso and Salvatore through theories of acting-in-concert and supervisory liability respectively.

First, Plaintiffs assert that Torreso is jointly liable as a team member for actions taken by others in the coordinated, planned operation. To determine whether a defendant is subject to tort liability for harm to a third person resulting from the tortious conduct of another, Connecticut looks to factors set forth in the Restatement (Second) of Torts:

"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person."

Rangel v. Parkhurst, 64 Conn. App. 372, 382 n. 7 (2001) (quoting Restatement (Second) Torts § 876 (1979)). The rules regarding joint tortfeasons are applicable "to all torts, including not only negligence but also . . . any other basis of tort liability." Gionfriddo v. Gartenhaus Café, 15 Conn. App. 392, 398 (1988). Therefore, tortious actions taken by one SWERT team-member as part of the raid may be imputable to the other SWERT-team members who participated in the raid, including Torreso. Similarly, because Salvatore allegedly authorized and supervised the raid, it can be plausibly inferred that he provided "substantial assistance or encouragement" to members of the SWERT team, such that SWERT conduct during the raid may be imputed to him. 1. Intentional Torts

Guizan also asserts Salvatore's liability for tortious conduct of officers acting under his supervision, under Section 358(2) of the Restatement (First) of Agency, which provides that

[a]n agent employing servants or other agents, not revealing to them the existence of the principal, is subject to liability to third persons for their torts as is any other principal; if he reveals the existence of the principal to them, but not to third persons, he is subject to liability for their torts only to persons who have dealt with such agents in reliance upon their apparent employment.

However, Guizan fails to explain how that agent-liability principle applies to Salvatore in his capacity as a member of the BPC. Guizan obviously does not allege that the existence of the principal — Town of Monroe and the BPC — was hidden from SWERT team-members or Plaintiffs, a necessary condition imputing liability to an agent (Salvatore) for a sub-agent's (SWERT's) conduct.

i. Assault and Battery

The Monroe Defendants move to dismiss Guizan's battery claim (Count III) and assault claim (Count IV), claiming that there are no allegations that Torreso had any direct verbal relations or physical interaction with the decedent or that any alleged conduct attributed to him was unlawfully performed with an intent to cause an imminent apprehension of harmful or offensive bodily contact; that Salvatore was not personally involved in the raid; and that the town of Monroe cannot be liable for the intentional torts of its employees, pursuant to Conn. Gen. Stat. § 52-557n.

Terebesi does not allege assault and battery.

Because the actions of any SWERT-team member acting in concert with Torreso and Salvatore may be imputed to them, see Rangel, 64 Conn. App. at 382 n. 7, and the unlawfulness of the SWERT-team members' conduct has been alleged, Guizan has sufficiently alleged assault and battery as to Torreso and Salvatore. However, the Town of Monroe is correct that "a municipality cannot be liable for the intentional conduct of its employees under Conn. Gen. Stat. § 52-557." Nanos v. City of Stamford, 609 F. Supp. 2d 260, 267 (2009) (citing Pane v. City of Danbury, 267 Conn. 669, 685-86 (2004), overruled on other grounds by Grady v. Town of Somers, 294 Conn. 324 (2009)). Guizan's assault and battery claims against the Town of Monroe based on the alleged intentional conduct of Monroe agents will therefore be dismissed.

ii. Intentional Infliction of Emotional Distress

Monroe Defendants move to dismiss Counts IX of Guizan's Amended Complaint and Five of Terebesi's Complaint, which allege intentional infliction of emotional distress ("IIED"). As discussed supra, the Town of Monroe cannot be held liable for the intentional torts of SWERT-team members, and in the absence of any allegations of IIED specifically directed to the municipality, Plaintiffs' IIED claims against it will be dismissed. However, because the alleged tortious conduct of any SWERT-team member, including Sweeney and Weir, can give rise to imputed liability for Torreso and Salvatore if they acted in concert with them during the raid or provided substantial assistance, and given that the Monroe Defendants do not challenge the sufficiency of facts alleged to support an IIED claim against Sweeney and Weir, the IIED claims against Torreso and Salvatore will not be dismissed.

iii. Aiding and abetting

Monroe Defendants move to dismiss Guizan's Count X, which is a claim against all Defendants for "aiding and abetting," because "these defendants neither engaged in nor contributed to any `wrongful acts.'" (Monroe Mem. Supp. Dismiss Guizan at 38.) Based on the Restatement (Second) of Torts § 876, Connecticut courts have held that the elements of a civil aiding and abetting claim include that

(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation.

Efthimiou v. Smith, 268 Conn. 499, 505 (2004). Guizan simply argues that "[t]he Amended Complaint sets forth these elements." Plaintiffs have sufficiently alleged the first element, that members of the SWERT team acted to cause harmful contact with Plaintiffs by throwing explosives into the Terebesi home and shooting at Guizan, and that contact did in fact occur. Additionally, Guizan alleges that both Torreso and Salvatore knowingly and substantially participated in or assisted the raid. Torreso allegedly threw one of distraction devices that immediately preceded the SWERT entrance into Terebesi home, and was "generally aware" of his role as part of the team that committed assault and battery, while Salvatore authorized and supervised the raid. However, because civil aiding and abetting is an intentional tort, and the Town of Monroe is not liable for the intentional acts of its employees, it cannot be liable for aiding and abetting.

2. Negligence

Monroe Defendants next argue that Plaintiffs' negligence allegations against Salvatore, Torreso, and the Town of Monroe are inadequate as a matter of law. Their first contention — that Plaintiffs cannot allege both intentional torts and negligence in the alternative — is incorrect under Connecticut law. Their reliance on Betancourt v. Slavin, 676 F. Supp. 2d 71 (D. Conn 2009), is misplaced for two reasons: first, Betencourt was decided on summary judgment with a more fully-developed factual record, and second, its determination was based on New York law, under which "`once intentional offensive contact has been established, the actor is liable for assault and not negligence, even when the physical injuries may have been inflicted inadvertently." Vilkuhu v. City of New York, No. 06cv2095 (CPS) (JO), 2008 WL 1991099, *9 (E.D.N.Y. May 5, 2008) (quoting Oliver v. Cuttler, 968 F. Supp. 83, 92 (E.D.N.Y. 1997)). In contrast, under Connecticut law, "a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Johnson v. Schmitz, 119 F. Supp. 2d 90, 101 (D. Conn. 2000); see also Dreier v. Upjohn Co., 196 Conn. 242, 245 (1985); accord Hanover Ins. Co. v. Fireman's Fund Ins. Co., 217 Conn. 340, 346 (1991) (absent a showing of prejudice, inconsistent pleadings are not prohibited).

The Monroe Defendants alternatively argue that governmental discretionary-act immunity under Connecticut law bars Plaintiffs' negligence claim here. Under Connecticut law, municipal employees are immune from liability for performance of their discretionary acts, and police department operations constitute a governmental function such that "acts or omissions in connection therewith ordinarily do not give rise to liability." Gordon v. Bridgeport Hous. Auth., 208 Conn. 161, 179-80 (1988). However, this immunity is not absolute:

Governmental discretionary-act immunity is generally available to both the municipal employee and the municipality itself in a negligence action. Gordon v. Bridgeport Hous. Auth., 208 Conn. 161, 165-66 (1988).

Connecticut recognizes three exceptions to a municipal employee's discretionary act immunity: (1) "where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to an imminent harm" . . .; (2) "where a statute specifically provides for a cause of action against a municipality or municipal official for failing to enforce certain laws;" and (3) "where the alleged acts involve malice, wantonness, or intent to injure, rather than negligence."

Seri v. Town of Newtown, 573 F. Supp. 2d 661, 672 (D. Conn. 2008) (citing Purzycki v. Town of Fairfield, 244 Conn. 101, 108 (1998)).

Guizan alleges that the decedent was "part of a narrowly defined class of foreseeable victims subject to imminent harm," and "defendants were public officials to whom it was apparent that their conduct was likely to lead to such harm." (Guizan Am. Compl. at ¶¶ 126, 127.) Salvatore argues that the imminent harm exception is inapplicable to him since the specific allegations against him relate to the overall administration of the police department, the establishment of policies and procedures, and implementation of training regimens, which "manifestly occurred prior to and wholly apart from the subject operation, at a point in time when there existed neither an identifiable victim nor an imminent harm." (Monroe Mem. Supp. Dismiss Guizan [Doc. # 73] at 31.) Torreso maintains that he is immune because Plaintiffs have failed to allege the direct application of physical force by Torreso against them, resulting in harm. ( Id. at 32-33.)

In determining whether the "imminent harm exception" applies, Connecticut courts consider three factors: whether there is (1) an immediate 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. Fleming v. City of Bridgeport, 284 Conn. 502, 533 (2007). Those "`core requirements of the imminent harm exception are analyzed conjunctively,' so that to prevail, a plaintiff must demonstrate all three elements." Seri, 573 F. Supp. 2d at 672 (quoting Doe v. Petersen, 279 Conn. 607, 616 (2006)). In Sestito v. Groton, 178 Conn. 520, 521 (1979), the plaintiff sought damages on behalf of a decedent who was fatally wounded in a shooting that was witnessed by the defendant police officer. The officer, seeing a small crowd of men shoving each other in a parking lot could have easily intervened but did not until he heard gunshots and called the police station, by which time the decedent had been fatally wounded. The Connecticut Supreme Court concluded that there was sufficient evidence on which a jury could determine that the officer should have known there was an immediate harm and an identifiable victim, and that it was apparent that his failure to intervene would breach a duty to the decedent. In contrast, in Seri, the plaintiff who claimed he was wrongly convicted of public indecency because the Town of Newtown failed to train defendant police officers in a variety of areas, including "the common characteristics of a sexual offender, the importance of fingerprint information, . . . finding probable cause to arrest, the effectuation of arrests, and general conduct as arresting police officers,'" could not demonstrate that the plaintiff was specifically identifiable or that it was apparent he faced imminent harm, because while failures alleged were "likely to eventually result in some harm to some person," it did not necessarily mean "that [Seri] would be the victim of the Newtown police department's inadequate training or supervision, nor that the result of such negligence would be the false arrest and prosecution of an innocent person accused for indecent exposure at the public library, i.e., the specific harm that occurred in this case." 573 F. Supp. 2d at 674-75 (emphasis in original).

Plaintiffs have alleged sufficiently specific facts as to negligence by Salvatore and Torreso, showing they are not protected by governmental, discretionary-act immunity at this stage. Terebesi alleges that the raid in which Torreso participated occurred "with the authorization, and under the direct supervision, of members of the BPC" including Salvatore. (Terebesi Am. Compl. at ¶ 26.) Because Plaintiffs were the subjects of the raid, they were specifically identifiable and known to be subject to imminent harm by participants in the raid. Plaintiffs' allegations against Salvatore and Torreso are more akin to those in Sestito, in which the police-officer defendant knew that specific individuals were at physical risk yet took no action until after the plaintiff had been shot. Salvatore allegedly authorized the deployment of SWERT and supervised its operation, which targeted identifiable individuals for potential use of force, and Torreso allegedly knew that these Plaintiffs as occupants faced imminent harm and contributed to that harm by storming the house and throwing a DefTech 25 explosive into the Terebesi residence. Therefore, neither Salvatore nor Torreso has shown his immunity to negligence liability at this stage.

Because the negligence claims against Salvatore and Torreso will survive Monroe's motion to dismiss, so too will Plaintiffs' negligence claims against the municipality. Conn. Gen. Stat. § 52-557n(a)(1) provides that "a political subdivision of the state shall be liable for damages to person or property caused by . . . [t]he 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." While Conn. Gen. Stat. § 52-557n(a)(2)(B) precludes municipal liability when negligent acts or omissions by municipal employees "require the exercise of judgment or discretion," the "identifiable person, imminent harm exception to employees' [discretionary-act] immunity applies to the immunity afforded to municipalities for the negligent performance of discretionary acts under § 52-557(a)(2)(B)." Grady, 294 Conn. at 348-49. Torreso and Salvatore both carried out official duties during the raid, and at this stage, the identifiable person, imminent harm exception to discretionary-act immunity applies to the conduct of those individual defendants during the raid, so the facts alleged can give rise to Monroe's negligence liability. 3. Recklessness

Monroe Defendants next argue that Guizan's recklessness claim in Count VI must be dismissed because the only allegation of recklessness against Torreso is that the Defendants "smashed windows and threw in explosive devices before announcing their presence," which Torreso says fails to establish a basis of his liability to Guizan.

In order to establish that the defendants' conduct was reckless, the plaintiff must prove, on the part of the defendants,

the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence. . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.

Shay v. Rossi, 253 Conn. 134, 181 (2000), overruled on other ground by Miller v. Egan, 265 Conn. 301 (2003).

It is undisputed that Plaintiffs have alleged facts that might plausibly suggest such highly unreasonable conduct as to certain members of the SWERT team, and because Torreso acted in concert with them, and Salvatore provided them with substantial assistance, their alleged recklessness could be imputed to them. See Rangel, 64 Conn. App. at 382 n. 7. However, the Connecticut Supreme Court in Elliott v. City of Waterbury, 245 Conn. 385, 415 (1998) explained that "at least in the context of common-law tort actions," the concepts of "wanton and reckless conduct, on the one hand, and wilful, intentional and malicious conduct on the other" are "indistinguishable." Thus, under Conn. Gen. Stat. § 52-557n, which precludes municipal liability for the "wilful misconduct" of municipal employees, Monroe cannot be liable for the reckless acts of its employees.

III. Conclusion

Accordingly, Darien Defendants' [Doc. # 70] Motion to Dismiss is DENIED. Monroe Defendants' [Doc. # 78] Motion to Dismiss Guizan's Amended Complaint is GRANTED in part and DENIED in part. It is granted insofar as it seeks to dismiss Counts III, IV, VI, IX, and X of the Guizan Amended Complaint against the Town of Monroe, and Count II of the Guizan Amended Complaint against Torreso. It is denied to the extent it seeks to dismiss any Counts against Salvatore; Counts I, III, IV, V, VI, IX, and X as to Torreso; and Counts I, II, and V against the Town of Monroe. Monroe Defendants' [Doc. # 78] Motion to Dismiss Terebesi's Complaint is GRANTED in part and DENIED in part. It is granted insofar as it seeks to dismiss Count Five as to the Town of Monroe and the Fourteenth Amendment claims in Count One against Torreso. It is denied insofar as it seeks to dismiss any Counts against Salvatore; Counts One, Three, and Four against the Town of Monroe, and Counts Three, Four, Five, and the Fourth Amendment Allegations in Count One against Torreso.

IT IS SO ORDERED.

Dated at New Haven, Connecticut this 30th day of September, 2010.

w

Due process does not mandate "actual" notice, but rather a method of notice that is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 314; Rosa R., 889 F.2d at 439. "The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it."Mullane, 339 U.S. at 314; see also Jones v. Flowers, 547 U.S. 220, 229 (2006).

Just as with the means of notice, "the content of the notice must be `reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.'" Brody v. Vill. of Port Chester, 434 F.3d 121, 130 (2d Cir. 2005) (quoting Mullane, 339 U.S. at 314). This includes the "corollary requirement that the notice must be of such nature as reasonably to convey the required information." Brody, 434 F.3d at 130 (quotation and citation omitted). According to the Brody court, such "required information" includes "as much notice as is practicable to inform [Plaintiff] of legal proceedings against his property." Id.

Because the essential principle of due process is that the deprivation of a protected interest be preceded by notice and an opportunity to be heard, Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985), it is axiomatic that the notice provided must accurately relate when and where the absentee may contest the deprivation. Strickland v. Inlow, 519 F.2d 744, 746 (5th Cir. 1975) ("The failure to inform the plaintiffs of the time and place of the Board meeting was violative of their right to procedural due process, for fundamental to that concept is adequate notice and the opportunity to be heard."). See also Goss, 419 U.S. at 584 (requiring "effective" notice); Mullane, 339 U.S. at 314 (the opportunity to be heard "has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to . . . contest"). Unless the recipient is adequately informed of when the hearing will occur, the hearing serves no purpose, "and resembles more a scene from Kafka than a constitutional process." See Gray Panthers v. Schweiker, 652 F.2d 146, 168-69 (D.C. Cir. 1980) (discussing the analogous requirement that persons be adequately informed of the reasons for denial of a legal interest).

2. Application of Law to Facts

No genuine issue of material fact exists as to the content of the Notice sent to Plaintiff. Although Defendants' Notice advised Plaintiff of a Board hearing that would occur on March 24, 2003, the hearing actually occurred two days later. Defendants have offered no evidence that they informed Plaintiff that his hearing had been rescheduled to March 26, 2003.

The Court accordingly finds that Defendants failed to provide "as much notice as is practicable" to inform Plaintiff of the date of the proceedings against him, and that Plaintiff was deprived of due process of law. Brody, 434 F.3d at 130. Notice must be "reasonably calculated" to inform Plaintiff of his opportunity to present objections to the contemplated deprivation. See Mullane, 339 U.S. at 313. Notice reflecting a hearing date of March 24 was not reasonably calculated to advise Plaintiff of a hearing that actually occurred on March 26. It is irrelevant that Plaintiff was in government custody and could not appear on either hearing date, given that "the constitutionality of a particular procedure for notice is assessed ex ante, rather than post hoc," Jones, 547 U.S. at 231.

Although Plaintiff did not move for summary judgment on the deficiency of Defendants' Notice, the Court sua sponte grants summary judgment in his favor on this issue, because there are no material facts in dispute and Plaintiff is entitled to judgment as a matter of law. See, e.g., First Fin. Ins. Co., 193 F.3d at 115; Continental Cas. Co., 2010 WL 2834898, at *6. Defendants cannot "plausibly" claim that they are "procedurally prejudiced" by the Court's sua sponte action. Bridgeway Corp., 201 F.3d at 139. Defendants have moved for summary judgment on all of Plaintiff's § 1983 claims (Def. Mem. at 2), including the alleged constitutional deficiency of (a) the method of Notice sent to Plaintiff (Am. Compl. ¶ 19, 28, 32-34); and (b) the content of that Notice (Am. Comply ¶ 35). Defendants explicitly admitted in their Rule 56.1 response the inaccuracy of the Notice they sent to Plaintiff. They thus had "significant incentive to put forward any compelling evidence in support of their summary judgment motion," since the law prevents this Court from drawing favorable inferences on their behalf.Coach Leatherware Co., Inc., 933 F.2d at 167-68. Their failure to submit such compelling evidence in support of the entirety of their motion — that is, not only in support of the adequacy of the method of Notice, but also in support of the adequacy of thecontent of the Notice — does not constitute "procedural prejudice" within the meaning of Bridgeway Corp.

In light of its decision that the Notice sent to Plaintiff was constitutionally defective, the Court need not reach the issues of: (a) whether, because Defendants knew or should have known that Plaintiff was incarcerated at the time the Notice was mailed to Plaintiff's off-campus address, such Notice was not reasonably calculated to apprise Plaintiff of the Board hearing (see Pl. Opp. at 10); or (b) whether service by overnight mail is not reasonably calculated to advise a student living off-campus, such as Plaintiff, of the pendency of an action against him (see Pl. Reply at 2 n. 2).

The Court thus DENIES Defendants' motion for summary judgment on Plaintiff's claim of defective notice, and sua sponte GRANTS summary judgment in favor of Plaintiff.

B. Alleged Violations of SUNY Maritime's Internal Regulations

Plaintiff contends that Defendants deprived him of due process as a result of Board proceedings that violated several of SUNY Maritime's internal regulations as codified in the revisedManual. Defendants argue that they are entitled to summary judgment on this claim because any alleged violations of the revised Manual are not constitutionally significant. (Def. Opp. at 6-7; Def. Mem. at 12-14.) For the reasons that follow, the Court DENIES Defendants' motion for summary judgment on this claim, and sua sponte GRANTS summary judgment in favor of Plaintiff.

Because federal constitutional standards, rather than state law, define the requirements of procedural due process, Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir. 1990), not every deviation from a state agency's regulations is of constitutional significance. Winnick, 460 F.2d at 550; see also Jones v. Bd. of Governors of Univ. of N.C., 704 F.2d 713, 717 (4th Cir. 1983);Bills v. Henderson, 631 F.2d 1287, 1298 (6th Cir. 1980); Bates v. Sponberg, 547 F.2d 325, 330 (6th Cir. 1976). Rather, an agency's violation of its own regulations is unconstitutional only if those regulations are necessary to afford due process. See Bowens v. N.C. Dep't of Human Res., 710 F.2d 1015, 1019 (4th Cir. 1983) (citing United States v. Caceras, 440 U.S. 741, 751-52 (1979)). Similarly, to the extent that a state's procedures embody the fundamental guarantees grounded in the Due Process Clause, "a significant departure from those procedures would as well violate the underlying constitutionally based guarantees." Jones, 704 F.2d at 717; see also Cobb v. The Rector and Visitors of Univ. of Va., 69 F. Supp. 2d 815, 828 (W.D. Va. 1999) (citing Jones).

Once the constitutional minima have been satisfied, however, a state agency's non-compliance with promised, yet "gratuitous procedural protections" does not constitute a due process violation. Levitt v. Univ. of Tex. at El Paso, 759 F.2d 1224, 1231 (5th Cir. 1985); see also Hennigh v. City of Shawnee, 155 F.3d 1249, 1256 (10th Cir. 1998); McDarby v. Dinkins, 907 F.2d 1334, 1338 (2d Cir. 1990); Brown v. Texas A M Univ., 804 F.2d 327, 335 (5th Cir. 1986); Rubino, 2007 WL 685183, at *8 n. 6.

In light of the foregoing authorities, the Court finds that the following undisputed deviations from the revised Manual deprived Plaintiff of due process: (1) Defendants' failure to provide sufficient notice in convening the Board; and (2) Defendants' disenrollment of Plaintiff absent any evidentiary basis. The Court accordingly DENIES Defendants' motion for summary judgment on these claims, and sua sponte GRANTS summary judgment in favor of Plaintiff.

As a result of the disposition of this claim, the Court need not address the constitutional significance of Defendants' other alleged deviations from the revised Manual, such as: (a) the failure of Smith to convene the Board; (b) the failure to hand-deliver the convening order to Plaintiff; (c) the deprivation of Plaintiff's right to a meaningful appeal; (d) the failure to record the Board hearing; (e) the failure to hand-deliver the disenrollment order to Plaintiff; and (f) the failure to allow five business days prior to rendering the final disenrollment decision.

1. Alleged Insufficiency of Notice

As explained in Section IV.A, supra, Plaintiff is entitled to summary judgment on his claim that Defendants' inaccurate Notice was constitutionally deficient. For the same reasons, Plaintiff is entitled to summary judgment on the issue of whether Defendants' deviation from the revised Manual — which requires that the notice "set forth . . . [t]he date . . . of the hearing" (Def. Exh. 11, § 3404.5(1)(b)) — deprived him of due process. The Court finds that the revised Manual requires Defendants to advise cadets of the actual date on which their hearings will occur, a requirement that embodies the fundamental guarantees of due process where deprivations of constitutionally protected interests are at stake. Jones, 704 F.2d at 717. Defendants "significant[ly] departed" from this internal regulation when they held Plaintiff's hearing on a date not reflected in his Notice, and without advising Plaintiff that the hearing was rescheduled. Accordingly, the Court sua sponte GRANTS summary judgment in favor of Plaintiff on this claim. See supra Section IV.A.2; First Fin. Ins. Co., 193 F.3d at 115; Continental Cas. Co., 2010 WL 2834898, at *6.

2. Alleged Failure to Consider Any Evidence Before Disenrolling Plaintiff

Plaintiff is entitled to summary judgment on the claim that Defendants violated the revised Manual, and deprived him of due process, by failing to have any evidentiary basis for their disenrollment decision.

Plaintiff acquired a letter, dated March 2004, which appears to cast doubt on whether he submitted false documents to SUNY Maritime. (Pl. Exh. 1.) On the basis of this after-acquired evidence, Plaintiff objects to Defendants' failure to address the "non-viability" of the charges that led to Plaintiff's disenrollment. (Pl. Mem. at 3 n. 2.) Plaintiff cannot, of course, argue that Defendants were required to consider, during the March 2003 disenrollment proceeding, evidence that did not come to light until March 2004. In any event, because the Court finds that Defendants violated Plaintiff's due process rights by failing to have an evidentiary basis for the disenrollment decision, the foregoing issue is moot.

Although due process rights in the context of academic discipline are not coextensive with such rights in the civil or criminal contexts, students must nonetheless be afforded "some" type of hearing prior to being deprived of a protected interest.Goss, 419 U.S. at 579, 583-84; see also Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir. 1998) ("due process requires only that a hearing be held . . . in a meaningful manner.") (emphasis added). The Supreme Court in Goss clarified that students facing even temporary suspension are entitled, as a matter of due process, to "an explanation of the evidence the authorities have." Goss, 419 U.S. at 581 (emphasis added).

The revised Manual similarly required Plaintiff's Suitability/Disciplinary Board to "[gather] and examin[e] all available records and/or witnesses relative to the cadet's performance," and "all available evidence and/or witnesses relative to the offense(s) charged." (See supra Section I.C; Def. Exh. 11, § 3404.3(1), 3404.4(1).) Defendants' deviation from these evidentiary procedures, and their failure to have an evidentiary basis for their disenrollment decision, violated Plaintiff's due process rights by depriving him of a "meaningful" hearing. See, e.g., Giglio, 732 F.2d at 1135; Jackson v. Hayakawa, 761 F.2d 525, 527 (9th Cir. 1985); Rubino, 2007 WL 685183, at *8.

The undisputed record indicates that Defendants failed to consider any evidence before recommending Plaintiff's disenrollment. Defendants' Rule 56.1 Statement provides that "[t]he Board considered the documentary evidence" prior to recommending Plaintiff's expulsion. (Def. Rule 56.1 Stmt. ¶ 31 (citing Smith Decl. ¶ 11 Def. Exh. 13).) Yet, the evidence to which Defendants cite offers no support for this claim. Smith acknowledged that "[t]here were no live witnesses, and there was no substantive testimony" at Plaintiff's hearing. (Smith Decl. ¶ 9.) Moreover, the Board's recommendation to disenroll Plaintiff states not that the Board considered "documentary evidence," but that the Board "consider[ed] all the charges, and deem[ed] them to be true." (Def. Exh. 13) (emphasis added). "Charges" are not "evidence," however, and Defendants offer no explanation of how, in the absence of such evidence, the Board could "deem" the charges "true." See, e.g. Gleason v. Univ. of Minn., 104 Minn. 359, 364 (Minn. 1908) (absent evidence, the fact that plaintiff was "charged" with insubordination "does not warrant the inference that he was guilty.").

Smith similarly failed to establish that he had any evidentiary basis for his disenrollment decision. The revised Manual requires Smith to "review" the report of the Board prior to rendering his decision as to a cadet's culpability and punishment. (Def. Exh. 11, § 3404.5(11)) (emphasis added). Yet, Smith states in his declaration not that he undertook a substantive "review" of the Board's report, but that he merely "concurre[d] with its recommendation of disenrollment." (Smith Decl. ¶ 11.) Smith offers no facts or evidence demonstrating that his concurrence was the product of a substantive evidentiary review, as required by the plain text of the revised Manual. (See Def. Rule 56.1 Stmt. ¶ 32-33; Smith Decl. ¶ 11-12.)

In Smith's March 26, 2003 letter to Plaintiff advising him of his disenrollment, Smith states that "[b]ased on all the evidence presented to the Board and my review of you [sic] conduct record, I concur with the Board's recommendation that you be immediately disenrolled by the Maritime College." (Def. Exh. 14.) In light of the facts recounted above, however, this statement is insufficient to create a triable issue of fact as to whether the Board or Smith considered any evidence prior to disenrolling Plaintiff.

Although Plaintiff's due process rights did not entitle him to a "full-dress judicial hearing," Dixon, 294 F.2d at 159, the seriousness of the penalty that awaited him at the very least required the disenrollment decision to have some evidentiary basis. See Goss, 419 U.S. at 581. It is undisputed that Defendants and the Board did not consider any actual evidence prior to disenrolling Plaintiff. Their failure to do so violated the revised Manual, and deprived Plaintiff of due process. The Court thus concludes, sua sponte, that Plaintiff is entitled to summary judgment on this claim. See supra Section IV.A.2; Bridgeway Corp., 201 F.3d at 139; First Fin. Ins. Co., 193 F.3d at 115; Continental Cas. Co., 2010 WL 2834898, at *6.

Following the Supreme Court's decision in Goss, the lower courts have recognized that due process requires some evidentiary basis for school disciplinary decisions. See, e.g., Nash v. Auburn Univ., 812 F.2d 655, 668 (11th Cir. 1987) (applying a "substantial evidence" standard); Jackson, 761 F.2d at 527 (same); Dixon, 294 F.2d at 157, 159 (requiring a "reasonable and constitutional ground for expulsion"); Rubino, 2007 WL 685183, at *8 ("substantial evidence"). The Second Circuit apparently has not opined on the issue of what evidentiary grounds for expulsion are constitutionally sufficient. The Court need not reach this issue, however, because the Defendants' failure to consider any evidence prior to disenrolling Plaintiff violates even the minimal dictates of Goss. See Goss, 419 U.S. at 581.

C. Plaintiff's Individual Capacity Claim Against Ryan

The Court GRANTS summary judgment in favor of Ryan on the claim that he, in his individual capacity, deprived Plaintiff of due process by: (a) failing to ensure that proper procedures were followed in convening the Board and conducting the hearing (Pl. Mem. at 1); and (b) summarily approving Plaintiff's disenrollment (Pl. Mem. at 8).

Ryan also purports to move for summary judgment on (what Ryan characterizes as) Plaintiff's Section 1983 claim that Ryan informed law enforcement that Plaintiff was "suspicious" and should be investigated. (Def. Mem. at 14; Am. Compl. ¶ 14-15.) Ryan states in his declaration that he did not contact any law enforcement authorities to report suspicions about Plaintiff, and that he did not order or suggest that anyone else make such a report. (Ryan Decl. ¶ 10.) Plaintiff counters that whether Ryan was suspicious of Plaintiff, and whether Ryan — or anyone else — reported such suspicions to law enforcement "are not material to the due process rights to which [Plaintiff] was entitled before being disenrolled." (Pl. Response to Def. Rule 56.1 Stmt. ¶ 16-18.) The Court construes this as a statement that Plaintiff is not making a due process claim with respect to the foregoing alleged contacts with law enforcement. The Court may not dispose of a "controversy" that is not before it. See, e.g. Acorn v. United States, Nos. 09-5172-cv, 10-0992-cv, 2010 WL 3191442, at *5 (2d Cir. Aug. 13, 2010) (citing U.S. Const. art. III, § 2). Accordingly, Ryan's motion on this issue is denied.

1. Parties' Arguments

Plaintiff argues that, as President, Ryan was "responsible for protecting the due process rights of cadets in connection with disciplinary proceedings brought against them by" SUNY Maritime. (Am. Compl. ¶ 57.) Plaintiff contends that this duty is set forth in Section 3402.2 of the revised Manual, which states that "the President of the Maritime College is the only officer authorized to disenroll a cadet." (Pl. Exh. 6, § 3402.2) (emphasis added). According to Plaintiff, Ryan was thereby required to conduct an independent and substantive review of the record prior to authorizing Plaintiff's disenrollment (Pl. Opp. at 8), to determine (a) whether the convening of Plaintiff's Board comported with due process (i.e., whether Plaintiff received notice and an opportunity to be heard); and (b) whether the Board conducted Plaintiff's hearing in accordance with the dictates of the revised Manual. (See Pl. Mem. at 1; Pl. Opp. at 3.)

Plaintiff argues that Ryan breached this implied duty by "summarily disenroll[ing] Plaintiff with absolutely no regard for Plaintiff's due process rights." (Pl. Mem. at 10.) Specifically, Plaintiff references Ryan's admission that he approved of the disenrollment recommendation without having examined any documents, transcript or tape of the Board's proceedings, and with full knowledge that Plaintiff had not been present at the hearing. (Id. at 5, 8; Pl. Exh. A at 20-22.) Instead, Ryan consented to the disenrollment based merely on his regard for the "integrity" of Smith and the members of the Board, and on Ryan's expectation that Plaintiff would appeal the disenrollment. (Id. at 5; Pl. Exh. A at 21.)

Ryan's deposition transcript reads as follows:
Q. Are you aware of any such evidence compiled anywhere that shows exactly what information the board had when it made [the decision to disenroll Plaintiff]? A. I think that's a question that could be answered by the suitability board, but not me. Q. But you accepted their recommendation? A. Actually, these are three great men of integrity. And Captain Smith, I would follow him to the end of the earth. He's not going to do something that is not appropriate. Q. So essentially without reviewing any documents or transcript or tape, you approved the disenrollment of the student; is that fair to say? A. It's fair to say that I expected him to appeal the decision and then I would have to be apprised of all the evidence. But at that time, yes. (Pl. Exh. A at 21.)

Ryan counters that neither the revised Manual, nor due process, required him to undertake a substantive, pre-appeal review of Plaintiff's case. (Def. Opp. at 2, 7.) Section 3402.2 of the revised Manual, which states that Ryan is the "only officer authorized to disenroll a cadet," also provides that, as President, Ryan is "the approving authority for recommendations of Suitability and/or Disciplinary Hearing Boards," and that he is "the reviewing authority for all Class I offenses." (Pl. Exh. 6, § 3402.2) (emphasis added). Based on these provisions of the revised Manual, Ryan claims that his involvement in the disenrollment process is limited to (a) the ministerial act of approving the recommendations of the Board; and (b) substantively reviewing any appeals. (Ryan Opp. Decl. ¶ 3, 5.)

Although Ryan purports to move for summary judgment on Plaintiff's "supervisory liability" claim (Def. Mem. at 8-10), Plaintiff explicitly states that he does not premise Ryan's liability on a theory of supervisory liability. (See Pl. Opp. at 3-4.) Such a claim is thus not before the Court, and Ryan's motion must be denied. See supra n. 7.

Although the revised Manual did not require him to do so, Ryan customarily engaged in a "preliminary review" prior to approving any disenrollment. (Id. ¶ 5-7.) In Plaintiff's case, Ryan states that he followed his "usual practice" by "satisf[ying himself] that the Board members and [Smith] went about their task carefully and with integrity and that the conduct charged would, if true, warrant disenrollment." (Id. ¶ 7.)

2. Analysis

Because Ryan had no due process duty to undertake a substantive, pre-appeal review of Plaintiff's case, the Court GRANTS summary judgment in favor of Ryan and against Plaintiff on this issue.

As a preliminary matter, Ryan's ministerial approval of Plaintiff's disenrollment did not violate the plain text of the revised Manual. During the "trial" phase of Plaintiff's disenrollment proceedings, Ryan was required to serve as the mere "approving authority" of the disenrollment decision. (See Pl. Exh. 6, § 3402.2) (emphasis added). It is undisputed that Ryan "approved" of the decision to disenroll Plaintiff. (See Smith Decl. ¶ 12 ("I communicated the results of the hearing and my recommendation for disenrollment to Admiral John Ryan, . . . who concurred."); Ryan Decl. ¶ 7 ("I satisfied myself that the Board members and . . . Smith went about their task carefully and with integrity and that the conduct charged would, if true, warrant disenrollment.").) Plaintiff has submitted no evidence indicating that Ryan's "approving authority" during the "trial" phase of Plaintiff's disenrollment called for substantive review, rather than ministerial action. The plain text of the revised Manual required Ryan to engage in such a substantive "review" of Plaintiff's disenrollment only during formal appeal (see Def. Exh. 11 § 3404.5(12); Pl. Exh. 6 § 3402.2) — an appeal that Plaintiff did not timely request. Cf. Smith on Behalf of Smith v. Severn, 129 F.3d 419, 423 n. 2 429 (7th Cir. 1997) (school's handbook refers to its appellate procedure both as a "review" and as an "appeal"). Plaintiff's failure to file an appeal thus means that Ryan had no duty pursuant to the revisedManual to undertake a substantive review of Plaintiff's case.

The "trial" phase of SUNY Maritime's disenrollment proceedings encompasses the following: (a) the initial Board hearing, at which members of the Board are required to determine findings of fact, develop opinions, and make recommendations to Smith (Def. Exh. 11, § 3404.4, 3404.5(11); Ryan Decl. ¶ 7); (b) Smith's "review" of the report of the Board and any statement by the cadet, and the rendering of Smith's decision as to the cadet's culpability and punishment (Def. Exh. 11, § 3404.5(11)) (emphasis added); and (c) Ryan's "approv[al]" of Smith's disenrollment decision (Pl. Exh. 6, § 3402.2) (emphasis added).

Plaintiff and his immigration counsel were informed of the disenrollment decision by the Immigration Court on March 26, 2003 — the same day that the disenrollment was ordered. (Pl. Response to Def. Rule 56.1 Stmt. ¶ 38; Def. Exh. 17.) Yet, the undisputed record establishes that Plaintiff never even attempted to avail himself of the appellate procedure provided for in the revisedManual. (Pl. Response to Def. Rule 56.1 Stmt. ¶ 35.; Ryan Decl. ¶ 7; see Def. Exh. 11 § 3404.5(12).) Plaintiff has offered no facts or competent evidence indicating that he and his counsel were, for some reason, unable to appeal the disenrollment order. (See Pl. Response to Def. Rule 56.1 Stmt. ¶ 35.) Instead, Plaintiff merely argues that Defendants' violations of the revised Manual precluded a meaningful appeal. (See Pl. Mem. at 1-2; Pl. Reply at 4.)

Even assuming, arguendo, that Ryan's status as "the only officer authorized to disenroll a cadet" required him to engage in a substantive, pre-appeal review of Plaintiff's disenrollment, Plaintiff has cited no authorities holding (or even suggesting) that such a review is required by due process. See, e.g., McDarby, 907 F.2d at 1338. Plaintiff's argument runs counter to precedent holding that those subject to school discipline do not enjoy a due process right to any appellate review. See, e.g., Severn, 129 F.3d at 429 ("The completely gratuitous [appellate] review by the school board neither is required by due process nor gives rise to any due process rights."); Nash v. Auburn Univ., 621 F. Supp. 948, 957 (D. Ala. 1985) (stating that the "Supreme Court has never found a right to appeal as inherent in the right to due process of law," and "[a]ll that due process requires is notice and an opportunity for hearing") (quotation and citation omitted), aff'd, 812 F.2d 655 (11th Cir. 1987).

The Court thus GRANTS summary judgment in favor of Ryan and against Plaintiff on the claim of Ryan's individual liability for failing to undertake a substantive, pre-appeal review of SUNY Maritime's disenrollment decision.

V. Conclusion

For the reasons stated above, the Court (1) DENIES Defendants' motion on the issue of liability for failing to provide adequate notice and a hearing that comported with due process, and sua sponte GRANTS summary judgment in favor of Plaintiff on those issues (Plaintiff's Third Cause of Action); and (2) GRANTS Ryan's motion for summary judgment on the issue of his individual liability for failing to conduct a substantive, preappeal review of Plaintiff's disenrollment decision, and DENIES Plaintiff's motion for summary judgment on that issue (Plaintiff's First Cause of Action).

The parties shall, within three weeks of the issuance of this Opinion Order, submit to the Court a joint letter specifying: (a) the relief requested by Plaintiff, and the legal or equitable bases for such relief; (b) Defendants' response to Plaintiff's requested relief; and (c) a proposed schedule for any necessary motions or briefing related to the foregoing.

SO ORDERED.

DATED: New York, New York September 30, 2010