Free Reply to Response to Motion - District Court of Connecticut - Connecticut

U &Case @:02-cv-01960?EBB Document 55 Filed 06/24/2004 Page'1 of 3 `
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SEAN A. LOVE, 1 NO. 302CVl960(EBB)wQ
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Plaintiff
VS. :
TOWN OF GRANBY, DOUGLAS CLARK
and ROBERT CASTLE
Defendants z JUNE 22, 2004
PLAINTIFF’S SUPPLEMENTAL REPLY
MEMORANDUM RE: SUMMARY JUDGMENT
I. INTRODUCTION
Pursuant to Local Rule 7(cl), the plaintiff submits this Supplemental Reply
Memorandum in response to the defendants’ Reply to Plaintiff s Opposition to Motion
for Summary Judgment, dated June 17, 2004.
In their Motion for Summary Judgment, defendants assert that plaintiff has no
cause of action under Title 42, U.S. Code, § 1983, regarding false arrest or false
imprisonment because plaintiff was not found "not guilty" on the charges for which he
was arrested by defendant police officers. Defendants then argued that if the false arrest
and false imprisonment claims go down, the court should dismiss the "pendent state
claim" alleging sexual assault and intimidation. Plaintiff responded that the sexual
assault charge was not a "pendent state claim" because the alleged sexual assault made

.Case .3:02-cv-01960-@jB Document 55 Filed 06/24/Zfgl Page(2 of 3`
the search and seizure “unreasonable." In other words, if the Constitution does not
permit an unprovoked physical assault by a police officer on an arrestee, it also does not
permit a sexual assault.
In their Reply dated June 17, 2004, defendants assert that the sexual assault claim
must be a pendent state claim because, supposedly, state-law torts committed by state or
local police "are not constitutional rights and are not protected by § 1983," Reply, p. 3
citing Madden v. City of Meriden, 602 F. Supp. 1160, 1166 (D. Conn. 1985).
II. LAW AND ARGUMENT
A. Defendants concede that sexual assault by a police officer is a violation of
the Fourteenth Amendment.
Paragraphs 9-ll of the First Count of the Amended Complaint allege the sexual
assault.
Paragraph 22 of the First Count states: “The conduct of defendants Clark and
Castle, as set forth in Paragraphs l‘0, ll, 14, 16, 17, 18 and 20 above, constituted a
violation of plaintiff s civil rights, in violation ofthe Fourth Amendment and the due
process clause of the Fourteenth Amendment to the United States Constitution and Title
42, United States Code, Section 1983.” (Emphasis added).
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Case -3:02-cv—01960-ErB)B Document 55 Filed 06/24/2651 PageL3 of 3i
In their reply, the defendants say that the "court has held that claims of sexual
assault by a police officer do not fall under the Fourth Amendment," citing Doe v. City of
D. Conn. No. 3:03CV-1454 (J CH) (May 13, 2004). Judge Hall said in the Qge
case that "claims of rape or assault by a police officer are properly analyzed under the
Foruteenth Amendment," citing Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997).
Defendants then say, "Therefore, the Plaintiff" s claims of sexual assault and battery are
properly analyzed under the Fourteenth Amendment’s substantive (sic) due process
clause." Reply, p. 4.
If wrongful conduct by a police officer violates the due process clause of the
Fourteenth Amendment, then it is not a "pendent state law claim." The allegations of the
Amended Complaint allow the court to analyze the sexual assault claim under the
Fourteenth Amendment.
The motion for summary judgment should be denied.
PLAINTIFF
65 Elm Street, P.O. Box 18
Winsted, CT 06098
860-379-9885
Fed. Bar No. CT 11058
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