# Clinton v. Perez

> District Court, D. Connecticut · July 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10097120

## Case

- **Court:** District Court, D. Connecticut
- **Decided:** July 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10097120

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JAMES CLINTON,
Plaintiff,

v. No. 3:19-cv-02010 (VAB)

MARCO PEREZ, JOHN ALDI, DANIEL
PAPOOSHA, DOMENICK PISANO,
MERIDITH MINNOCCI, AND ANTONIO
SANTIAGO,
Defendants.

RULING AND ORDER ON MOTION TO DISMISS

James Clinton (“Plaintiff”) has sued employees of the Connecticut Department of
Correction: Marco Perez, John Aldi, Daniel Papoosha, Domenick Pisano, Meridith Minnocci,
and Antonio Santiago (collectively, “Defendants”) for alleged violations of his constitutional
rights under both the United States Constitution and the Constitution of the State of Connecticut.
Compl., ECF No. 1 (Dec. 26, 2019); Am. Compl., ECF No. 7 (July 13, 2020).
Defendants have filed a motion a motion to dismiss the Amended Complaint in its
entirety. Defs.’ Mot. to Dismiss, ECF No. 17 (Sept. 4, 2020) (“Defs.’ Mot.”).
For the reasons stated below, Defendants’ motion to dismiss is GRANTED.
All claims are dismissed with prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Allegations
On or around February 19, 2019, “[a]n interview was schedule[d] by the Department of
Correction Security Division . . . pertaining to [Mr. Clinton’s] off[-]duty conduct.” Am. Compl.
¶ 11. Mr. Clinton allegedly began recording the interview, id. ¶ 14, and allegedly Mr. Perez told
him that “only [the] security division was allowed” to make recordings, id. ¶ 15. Mr. Perez
allegedly also told Mr. Clinton “[he] would receive a copy of the interview at a later time.” Id.
When Mr. Clinton did not stop recording, “[t]he Department of Correction[] [H]ead of Security
Division, Antonio Santiago[,] was [allegedly] summon[ed] to the office” where the interview
was taking place. Id. ¶ 16.

Mr. Clinton allegedly “stated that he would cease from such activities . . . if [they] . . .
were unlawful, illegal or against administrative policies.” Id. ¶ 17. Defendants allegedly “fail[ed]
to prove or provide” Mr. Clinton with evidence that any such laws or policies existed. Id. ¶ 18.
Mr. Clinton allegedly asked if the Constitution applied and Mr. Santiago allegedly told Mr. Perez
that it did not. Id. ¶ 19. Mr. Clinton allegedly would not “cooperate . . . [and] was escorted out of
the office to the lobby of the building.” Id. ¶ 20.
He allegedly learned that he would be “placed on administrative leave [until] further
notice.” Id. ¶ 21. Consequently, Mr. Clinton allegedly had to participate in the interview and
“give statements pertaining to the investigation.” Id. ¶ 22.

B. Procedural History1
On December 26, 2019, Mr. Clinton filed his initial Complaint against Defendants.
Compl.
On July 13, 2020, Mr. Clinton filed an Amended Complaint. Am. Compl.
On September 4, 2020, Defendants filed a motion to dismiss Mr. Clinton’s Amended
Complaint. Defs.’ Mot; Defs.’ Mem. in Supp. of Their Mot. to Dismiss, ECF No. 17-1 (Sept. 4,
2020) (“Defs.’ Mem.”).

1 The Court provides only the procedural history relevant to its decision on the pending motion to dismiss.
On September 18, 2020, Mr. Clinton filed a motion to strike Defendants’ motion to
dismiss. Pl. Mot. to Obj. & Strike Defs. Mot. to Dismiss, ECF No. 21 (Sept. 18, 2020).
On September 24, 2020, Defendants filed an opposition to Mr. Clinton’s motion to strike
the motion to dismiss, Defs.’ Opp’n Mem. to Pl.’s Mot. to Strike Their Mot. to Dismiss, ECF
No. 26 (Sept. 24, 2020), and a reply in support of their motion to dismiss, Defs.’ Reply Mem. in

Supp. of Their Mot. to Dismiss, ECF No. 27 (Sept. 24, 2020).
On June 19, 2021, this Court issued an Order denying Mr. Clinton’s motion to strike
Defendants’ motion to dismiss. Ruling and Order on Mot. to St[r]ike, Mot. to Submit Evid., and
Mot. for Default J., ECF No. 29 (June 19, 2021) (“June Order”).
On July 7, 2021, the Court held a hearing regarding the pending motion to dismiss. Min.
Entry, ECF No. 31 (July 7, 2021).
II. STANDARD OF REVIEW
A. Rule 12(b)(1)

“A case is properly dismissed for lack of subject matter jurisdiction under [Federal] Rule
[of Civil Procedure] 12(b)(1) when the district court lacks the statutory or constitutional power to
adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ.
P. 12(b)(1)). The plaintiff bears the burden of establishing by a preponderance of the evidence
that the court has subject matter jurisdiction over the claims. See id.
“When considering a motion to dismiss [under] Rule 12(b)(1), the court must take all
facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff.”
Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000); see also Nat. Res. Def. Council v. Johnson,
461 F.3d 164, 171 (2d Cir. 2006) (quoting Sweet, 235 F.3d at 83). The court, however, may also

resolve disputed jurisdictional issues “by referring to evidence outside of the pleadings, such as
affidavits, and if necessary, hold an evidentiary hearing.” Karlen ex rel. J.K. v. Westport Bd. of
Educ., 638 F. Supp. 2d 293, 298 (D. Conn. 2009) (citing Zappia Middle E. Constr. Co. v.
Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000)).
“When the Rule 12(b)(1) motion is facial, i.e., based solely on the allegations of the
complaint . . ., the plaintiff has no evidentiary burden.” Carter v. HealthPort Techs., LLC, 822

F.3d 47, 56 (2d Cir. 2016). “[A] defendant is [also] permitted to make a fact-based Rule 12(b)(1)
motion, proffering evidence beyond the [p]leading.” Id. “In opposition to such a motion, the
plaintiffs will need to come forward with evidence of their own to controvert that presented by
the defendant ‘if the affidavits submitted on a 12(b)(1) motion . . . reveal the existence of factual
problems’ in the assertion of jurisdiction.” Id. (quoting Exch. Nat'l Bank of Chi. v. Touche Ross
& Co., 544 F.2d 1126, 1131 (2d Cir. 1976)).
B. Rule 12(b)(6)
A complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Any claim that fails “to state a claim upon

which relief can be granted” will be dismissed. Fed. R. Civ. P. 12(b)(6). In reviewing a
complaint under Rule 12(b)(6), a court applies a “plausibility standard” guided by “two working
principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
First, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” (internal citations omitted)). Second, “only a
complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at
679. Thus, the complaint must contain “factual amplification . . . to render a claim plausible.”
Arista Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Turkmen v. Ashcroft,
589 F.3d 542, 546 (2d Cir. 2009)).
When reviewing a complaint under Federal Rule of Civil Procedure 12(b)(6), the court

takes all factual allegations in the complaint as true. Iqbal, 556 U.S. at 678. The court also views
the allegations in the light most favorable to the plaintiff and draws all inferences in the
plaintiff’s favor. Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 359 (2d Cir. 2013); see also York
v. Ass’n of the Bar of the City of N.Y., 286 F.3d 122, 125 (2d Cir. 2002) (“On a motion to dismiss
for failure to state a claim, we construe the complaint in the light most favorable to the plaintiff,
accepting the complaint’s allegations as true.”).
A court considering a motion to dismiss under Rule 12(b)(6) generally limits its review
“to the facts as asserted within the four corners of the complaint, the documents attached to the
complaint as exhibits, and any documents incorporated in the complaint by reference.” McCarthy

v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). A court may also consider
“matters of which judicial notice may be taken” and “documents either in plaintiffs’ possession
or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs.,
Inc., 987 F.2d 142, 150 (2d Cir. 1993); Patrowicz v. Transamerica HomeFirst, Inc., 359 F. Supp.
2d 140, 144 (D. Conn. 2005).
Complaints filed by pro se plaintiffs, however, “must be construed liberally and
interpreted to raise the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d
399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d
Cir. 2006)) (internal quotation marks omitted); see also Tracy v. Freshwater, 623 F. 3d 90, 101-
02 (2d Cir. 2010) (discussing the “special solicitude” courts afford pro se litigants).
III. DISCUSSION
Mr. Clinton has sued Defendants alleging violations of his rights under 42 U.S.C.
§§ 1983, 1985, and 1986; the First, Fifth, Sixth, Seventh, and Fourteenth Amendments to the

United States Constitution; and Connecticut General Statutes Section 31- 51q. Am. Compl. ¶ 2.
The Court will address each of Mr. Clinton’s claims in turn.2
A. Official Capacity Claims
The Eleventh Amendment, which protects the state from suits for monetary relief, also
protects state officials sued for damages in their official capacity. See Kentucky v. Graham, 473
U.S. 159, 169 (1985) (the Eleventh Amendment’s bar “remains in effect when state officials are
sued for damages in their official capacity”); Quern v. Jordan, 440 U.S. 332, 341 (1979) (Section
1983 does not override a state’s Eleventh Amendment immunity). Mr. Clinton has sued Mr.
Perez, Mr. Aldi, Mr. Papoosha, and Ms. Minnocci “only in [their] official capacit[ies].” Am.

Compl. ¶¶ 4-6, 8-9. Mr. Clinton further has sued Mr. Pisano “only in his official capacity.” Id. ¶
7. Given the Eleventh Amendment’s prohibition against damage claims against state officials in
their official capacities, all claims brought against all of the defendants in their official capacities
must be dismissed.
Accordingly, the Court grants Defendants’ motion to dismiss all claims against all
defendants in their official capacities.

2 Having already denied Mr. Clinton’s response to the Defendants’ motion to dismiss, a motion to strike, the Court
shall consider only the Amended Complaint, Defendants’ motion to dismiss, and its supporting documents when
addressing this motion.
B. The 42 U.S.C. §§ 1985 and 1986 Claims
To allege a claim under § 1985(3), a plaintiff must plead “(1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of equal
protection of the law, or of equal privileges and immunities under the law; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or

deprived of any right of privilege of a citizen of the United States.” Rini v. Zwirn, 886 F. Supp.
270, 290 (E.D.N.Y. 1995) (citing United Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463
U.S. 825, 828-29 (1983)).
42 U.S.C. § 1986 provides that “every person” with the knowledge of the “wrongs
conspired to be done” and “having power to prevent or aid in preventing the commission of”
wrongs proscribed by § 1985 and neglects or refuses to do so, “shall be liable to the party
injured . . . for all damages caused by such wrongful act. . . .” 42 U.S.C. § 1986. Relief under §
1986 flows from a viable claim under § 1985. Brown v. City of Oneonta, N.Y., 221 F.3d 329, 341
(2d Cir. 2001) (affirming dismissal of plaintiff's § 1986 claim because such a claim “must be

predicated on a valid § 1985 claim” (quoting Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7
F.3d 1085, 1087 (2d Cir. 1993)); Mian, 7 F. 3d at 1088 (“A valid § 1986 claim must be
predicated upon a valid § 1985 claim.”).
Mr. Clinton argues that Defendants violated his rights under 42 U.S.C. §§ 1985 and 1986.
Am. Compl. ¶ 2. According to Mr. Clinton, Mr. Papoosha, Mr. Aldi, Ms. Minnocci, Mr.
Santiago and Mr. Perez “fail[ed] to act or intervene” during the alleged incident and their
inaction “constitute[s] negligence, resulting in bre[a]ch in fulfillment of [their] obligations . . . in
violation of . . . 42 [U.S.C. §§] 1985 and 1986.” Id. ¶¶ 24, 26-29.
Defendants argue that Mr. Clinton “fails to state a Section 1985(3) claim” because the
Amended Complaint does not demonstrate “the existence of an agreement or meeting of the
minds to violate constitutional rights, as necessary to demonstrate the claimed conspiracy.”
Defs.’ Mem. at 7. Defendants also argue that Mr. Clinton’s § 1985(3) claims must be dismissed
because he has failed to “allege any facts plausibly suggesting that defendants were animated by

class-based, invidiously discriminatory animus toward him.” Id. (internal quotation marks
omitted). Defendants argue that “liability under Section 1986 is predicated on a colorable claim
under Section 1985 . . . [and] [b]ecause [Mr. Clinton] has failed to plead a cause of action under
the latter provision, he has failed to plead a cause of action under the former.” Id.
The Court agrees.
Section 1985 deals with conspiracies. Harnage v. Dzurenda, No. 3:14-CV-885 (SRU),
2014 WL 3360342, *2 (D. Conn. July 9, 2014). To maintain a § 1985 action, “a plaintiff ‘must
provide some factual basis supporting a meeting of the minds, such that defendants entered into
an agreement, express or tacit, to achieve the unlawful end.’” Webb v. Goord, 340 F.3d 105, 110

(2d Cir. 2013) (quoting Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y.
2000)). Subsection (1) of § 1985 prohibits conspiracies to prevent federal officials from
performing their duties. Harnage, 2014 WL 3360342, at *2. Subsection (2) of this statute
prohibits conspiracies intended to deter witnesses from participating in state or federal judicial
proceedings. Id. Finally, subsection (3) prohibits conspiracies to deprive persons of equal
protection of the laws. Id.
In order to state a claim under § 1985(3), Mr. Clinton must allege:
(1) the defendants were part of a conspiracy; (2) the purpose of the
conspiracy was to deprive a person or class of persons of the equal
protection of the laws; (3) an overt act taken in furtherance of the
conspiracy; and (4) an injury to his person or property, or a
deprivation of a right or privilege. Importantly, [Mr. Clinton] must
show that the conspiracy was motivated by a racial or otherwise
class-based invidious discriminatory animus.

Id.
Under § 1986,
[e]very person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 of this title, are
about to be committed, and having power to prevent or aid in
preventing the commission of the same, neglects or refuses so to do,
if such wrongful act be committed, shall be liable to the party injured
. . . .

42 U.S.C. § 1986. “Section 1986 provides no substantive rights; it provides a remedy for the
violation of section 1985 . . . Thus, a prerequisite for an actionable claim under section 1986, is a
viable claim under section 1985.” Harnage, 2014 WL 3360342, at *2.
Here, Mr. Clinton’s only conceivable § 1985 claim is under subsection (3), but he has not
alleged any facts showing that Defendants engaged in some conspiracy to deprive him of equal
protection of the laws based on his race or other class-based discriminatory animus. See Carter v.
Inc. Vill. of Ocean Beach, 759 F.3d 159, 164 (2d Cir. 2014) (“Moreover, ‘[42 U.S.C.] §§ 1985
and 1986 require some racial, or perhaps otherwise class-based, invidiously discriminatory
animus behind the conspirators’ action.’”) (alteration in original) (quoting Reynolds v. Barrett,
685 F.3d 193, 201-02 (2d Cir. 2012)); Sosa v. Lantz, No. No. 3:09-CV-869 (JBA), 2010 WL
122649, at *1 (D. Conn. Jan. 5, 2010) (finding no arguable basis in law for plaintiff's Section
1985 or 1986 claims without facts suggesting that defendant's actions were taken because of
plaintiff's race or other unlawful discriminatory animus).
Mr. Clinton does not provide any facts suggesting that Defendants actions were due to
“invidious[] discriminatory animus,” Carter, 759 F.3d at 164, or any animus at all. And without
a viable § 1985 claim, Mr. Clinton’s claim under § 1986 also fails.
Accordingly, Defendants’ motion to dismiss Mr. Clinton’s claims under Sections 1985
and 1986 will be granted.
C. The First Amendment Claim
The First Amendment provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.” U.S. Const. amend. I.
Mr. Clinton argues that “under the laws of the Unites States Constitution[] and the State
of Connecticut Constitution” he had the right to “record the interview . . . utilizing a mobile
phone device, evidencing an uncensored conversation prior to the interview taking place.” Am.
Compl. ¶ 14. According to Mr. Clinton “he was well within his right[s] to record . . . and [] no
activity conducted by [him] was unlawful” Id. ¶ 18 (first alteration in original). He argues that
Mr. Santiago made a “bias[ed] decision to move forward and seek that [Mr. Clinton] [] be placed
on administrative leave as a form [of] discipline” “[i]n retaliation.” Id. ¶ 28.

Defendants argue that “[w]hen acting as an employer, the State has interests in regulating
the speech of its employees that differ significantly from those it possesses in connection with
regulation of the speech of the citizenry in general.” Defs.’ Mem. at 10 (internal quotation marks
and alteration omitted) (quoting Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty.,
Ill., 391 U.S. 563, 568 (1968)). Defendants argue that while “accepting public employment” does
not eviscerate an employee’s First Amendment rights, “there must be a balance between the
interests of the employee, as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the public services it
performs through its employees.” Id. at 11.
Defendants argue that Mr. Clinton “making an independent recording on his mobile
device is not a public concern.” Id. They also argue that Mr. Clinton’s “expression was not as a
citizen, but as a public employee,” id. at 13, and the Court’s “deference to the government's
assessment of potential harms to its operations is appropriate when the employer has conducted
an objectively reasonable inquiry into the facts,” id. at 14. Defendants argue that Mr. Clinton has

failed to meet the burden of showing a violation of his First Amendment rights. Id. at 9-15.
The Court agrees.
First of all, Mr. Clinton has failed to identify any viable caselaw providing an unfettered
First Amendment right to record conversations. See, e.g., Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 (1984) (“Expression, whether oral or written or symbolized by
conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that
restrictions of this kind are valid provided that they are justified without reference to the content
of the regulated speech, that they are narrowly tailored to serve a significant governmental
interest, and that they leave open ample alternative channels for communication of the

information.”).
And even if there were such a right, in the absence of applicable Supreme Court or
Second Circuit caselaw clearly establishing such a right, the Defendants would be entitled to
qualified immunity against this claim. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The
doctrine of qualified immunity protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)); see also Huth v. Haslun, 598 F.3d 70, 73 (2d Cir. 2010) (“To overcome the defense
of qualified immunity, a plaintiff must show both (1) the violation of a constitutional right and
(2) that the constitutional right was clearly established at the time of the alleged violation.”).
Second, to the extent some other First Amendment claim of Mr. Clinton arguably exists,
“[t]he Supreme Court has long recognized that the First Amendment affords a degree of
protection to public employees to exercise the right of free speech without risk of retaliation by

the State employer if the employee's speech in question is on matters of public interest.” Lynch v.
Ackley, 811 F.3d 569, 577 (2d Cir. 2016) (internal quotation marks omitted) (citing Pickering,
391 U.S. at 568). “At the same time, however, the State has interests as an employer in
regulating the speech of its employees that differ significantly from those it possesses in
connection with regulation of the speech of the citizenry in general.” Id. (internal quotation
marks omitted); see Waters v. Churchill, 511 U.S. 661, 675 (1994) (“The government's interest
in achieving its goals as effectively and efficiently as possible is elevated from a relatively
subordinate interest when it acts as sovereign to a significant one when it acts as employer. The
government cannot restrict the speech of the public at large just in the name of efficiency. But

where the government is employing someone for the very purpose of effectively achieving its
goals, such restrictions may well be appropriate.”).
“A plaintiff asserting a First Amendment retaliation claim must establish that: ‘(1) his
speech or conduct was protected by the First Amendment; (2) the defendant took an adverse
action against him; and (3) there was a causal connection between this adverse action and the
protected speech.’” Matthews v. City of N.Y., 779 F.3d 167, 172 (2d Cir. 2015) (quoting Cox v.
Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)).
[T]wo inquiries . . . guide interpretation of the constitutional
protections accorded to public employee speech. The first requires
determining whether the employee spoke as a citizen on a matter of
public concern. If the answer is no, the employee has no First
Amendment cause of action based on his or her employer's reaction
to the speech. If the answer is yes, then the possibility of a First
Amendment claim arises. The question becomes whether the
relevant government entity had an adequate justification for treating
the employee differently from any other member of the general
public.
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citations omitted). Mr. Clinton’s recording of his
interview regarding his off-duty behavior, however, is not a matter of public concern. See
Piscottano v. Murphy, 511 F.3d 247, 273 (2d Cir. 2007) (“an employee's [restricted] speech need
not comment on the workings or functioning of the employer's operation; it is sufficient that that
speech be detrimental to that operation”); Reuland v. Hynes, 460 F.3d 409, 417 (2d Cir. 2006)
(“[I]n determining whether an employee's speech addresses a matter of public concern, the court
should focus on the motive of the speaker and attempt to determine whether the speech was
calculated to redress personal grievances or whether it had a broader public purpose.” (internal
quotation marks omitted) (quoting Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir. 1999)); see
also Weinstein v. Univ. of Conn., 753 F. App'x 66, 68 (2d Cir. 2018) (finding that the plaintiff’s
“speech was focused on the private matter of his employment, which is not a matter of public
concern.”); Montero v. City of Yonkers, N.Y., 890 F.3d 386, 399 (2d Cir. 2018) (“Whether speech
is on a matter of public concern is a question of law, and is to be answered by the court after
examining the ‘content, form, and context of a given statement, as revealed by the whole
record. . . . [S]peech that principally focuses on “an issue that is ‘personal in nature and generally
related to [the speaker's] own situation.” (internal citation and quotation marks omitted)). In any
event, despite Mr. Clinton alleging that “he was go[ing to] be placed on administrative leave,”
Am. Compl. ¶ 21, ultimately, no disciplinary action has been alleged to have been taken against
Mr. Clinton, see Defs.’ Mem. at 14.
Accordingly, Defendants’ motion to dismiss Mr. Clinton’s First Amendment claims will
be granted.
D. The Fifth Amendment Claim
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself nor be deprived of life, liberty, or property, without due

process of law.” U.S. Const. amend. V.
Defendants argue that Mr. Clinton
fails to state any claim under the Fifth Amendment. Because [Mr.
Clinton]’s lawsuit does not allege any deprivation of his rights by
the federal government, [and] any due process claim he has against
the Defendants is properly brought under the Due Process Clause of
the Fourteenth Amendment, not under that of the Fifth Amendment.
Defs.’ Mem. at 8. Defendants also argue that Mr. Clinton’s Fifth Amendment Claim should be
dismissed because “he was not compelled to expose himself to any criminal proceeding and was
not accused of any crime.” Id.
The Court agrees.
The Fifth Amendment applies to the federal government, not to the states. See Dusenbery
v. United States, 534 U.S. 161, 167 (2002) (finding the Due Process Clause of the Fifth
Amendment applies to the federal government and the Due Process Clause of the Fourteenth
Amendment applies to the states); Mitchell v. Home, 377 F.Supp.2d 361, 372–73
(S.D.N.Y.2005) (“Any due process rights plaintiff enjoys as against state government
officials . . . arise solely from the Fourteenth Amendment due process clause.”). Mr. Clinton has
not alleged that a federal official violated his Fifth Amendment rights, but instead has only sued
employees of the State of Connecticut. See Am. Compl. ¶¶ 4-9. Consequently, the Fifth
Amendment is not applicable to this case. In any event, there is no suggestion of exposure to
criminal liability, only the possibility of termination from his job, a civil, not a criminal, issue.
See Ohio v. Reiner, 532 U.S. 17, 20 (2001) (“The Fifth Amendment provides that no person shall
be compelled in any criminal case to be a witness against himself. [T]his privilege not only
extends to answers that would in themselves support a conviction but likewise embraces those
which would furnish a link in the chain of evidence needed to prosecute the claimant.” (internal
alterations, quotation marks, and citation omitted)); see also Zweig v. Marvelwood Sch., 203

Conn. App. 818 (2021) (“[A]bsent a clear breach of public policy, the employer must be allowed
to make personnel decisions without fear of incurring civil liability. To do otherwise would
subject the employer who maintains compliance with express statutory obligations to
unwarranted litigation for failure to comply with a heretofore unrecognized public policy
mandate.” (internal quotation marks, alteration, and citation omitted)); Wilk v. Abbott Terrace
Health Ctr., Inc., No. CV065001328S, 2007 WL 2482486, at *5 (Conn. Super. Ct. Aug. 15,
2007 (“The employer is allowed, in ordinary circumstances, to make personnel decisions without
fear of incurring civil liability.”).
Accordingly, Defendants’ motion to dismiss Mr. Clinton’s claim arising under the Fifth

Amendment will be granted.
E. The Sixth Amendment Claim
The Sixth Amendment provides that:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his
defence.
U.S. Const. amend. VI. On its face, the Sixth Amendment is only applicable to criminal
prosecutions. U.S. Const. Amend. VI (“In all criminal prosecutions . . . .”).
Mr. Clinton argues that his rights under the Sixth Amendment were violated because he
was not allowed to record “[a]n interview . . . by the Department of Correction Security
Division.” Am. Compl. ¶ 11.
Defendants argue that “[b]ecause [Mr. Clinton] does not challenge any conduct regarding
an underlying criminal trial, he has not stated a Sixth Amendment claim and the claim must be

dismissed.” Defs.’ Mem. at 9
The Court agrees.
“The Sixth Amendment is only applicable to criminal prosecutions.” Gilliam v. Black,
No. 3:18-cv-1740 (SRU), 2019 WL 3716545, at *6 (D. Conn. Aug. 7, 2019). Mr. Clinton does
not allege that the “interview” with Defendants was part of a criminal prosecution, thereby
failing to state a claim under the Sixth Amendment.
Accordingly, Defendants’ motion to dismiss Mr. Clinton’s Sixth Amendment claim will
be granted.
F. The Seventh Amendment Claim

The Seventh Amendment provides that, “[i]n Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” U.S. Const.
amend. VII. The Seventh Amendment applies “to actions enforcing statutory rights, and requires
a jury trial upon demand, if the statute created legal rights and remedies, enforceable in an action
for damages in the ordinary courts of law.” Brown v. Sandimo Materials, 250 F.3d 120, 126 (2d
Cir. 2001) (quoting Curtis v. Loether, 415 U.S. 189, 194 (1974)).
Defendants argue that Mr. Clinton’s Amended Complaint is “utterly devoid of any
allegation that his right to a jury trial . . . has been violated and thus th[e] claim fails.” Defs.’
Mem. at 9.
The Court agrees.
There is no viable Seventh Amendment claim raised here. Mr. Clinton has not provided
any caselaw for the proposition that a jury trial would have been appropriate instead of the
interview by Defendants. Moreover, the interview did not preclude him from having a jury trial
in this case, to the extent that his claim warranted consideration by a jury, rather than dismissal

as a matter of law. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 40-41 (1989) (“The
Seventh Amendment provides: ‘In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved. . . .’ We have consistently
interpreted the phrase ‘Suits at common law’ to refer to “suits in which legal rights were to be
ascertained and determined.”).
Accordingly, Defendants’ motion to dismiss Mr. Clinton’s Seventh Amendment claim
will be granted.
G. The Fourteenth Amendment Claim
“The Fourteenth Amendment's Due Process Clause protects persons against deprivations

of life, liberty, or property without due process of law, and ‘those who seek to invoke its
procedural protection must establish that one of these interests is at stake.’” Victory v. Pataki,
814 F.3d 47, 59 (2d Cir. 2016), as amended (Feb. 24, 2016) (quoting Graziano v. Pataki, 689
F.3d 110, 114 (2d Cir. 2012).
Mr. Clinton argues that he was “deni[ed] substantive due process rights afforded by the
Constitution.” Am. Compl. ¶ 1. According to Mr. Clinton, by not being permitted to record the
interview with Defendants, his constitutional rights were violated. Id. ¶ 14.
Defendants argue that Mr. Clinton failed to allege sufficient facts to “adequately allege
how the procedures employed by the Defendants denied him a constitutionally adequate
process.” Defs.’ Mem. at 3.
The Court agrees.
In Hudson v. Palmer, the Supreme Court held that “an unauthorized intentional

deprivation of property by a state employee does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful
post[-]deprivation remedy for the loss is available.” 468 U.S. 517, 533 (1984). Even if Mr.
Clinton had been deprived of property, he has not properly alleged being denied a meaningful
remedy. Indeed, Mr. Clinton had a remedy, the grievance process under the collective bargaining
agreement, see Defs.’ Mem. at 27 (noting and providing as an exhibit the collective bargaining
agreement), but he has not alleged having exhausted this remedy before filing this lawsuit. Given
the availability of this remedy and Mr. Clinton’s failure to allege having exhausted it, his
Fourteenth Amendment due process claim must fail. See Russo v. City of Hartford, 158 F. Supp.

2d 214, 224-225 (D. Conn. 2001) (dismissing claim for failure to allege exhaustion of collective
bargaining agreement procedures to address right allegedly violated); cf. Vera v. Saks & Co., 335
F.3d 109, 118–19 (2d Cir. 2003) (“ Because plaintiff failed to exhaust his remedies under the
[collective bargaining agreement] to grieve and arbitrate his section 193 claim, the District Court
properly granted defendant summary judgment.”); see also Iqbal, 556 U.S. at 679 (“[O]nly a
complaint that states a plausible claim for relief survives a motion to dismiss.”).
Accordingly, Defendants’ motion to dismiss Mr. Clinton’s Fourteenth Amendment claim
will be granted.
H. The 42 U.S.C. § 1983 Claim
“Section 1983 permits an individual deprived of a federal right by a
person acting under color of state law to seek compensation in
federal court.” Wimmer v. Suffolk Cty. Police Dep't, 176 F.3d 125,
136 (2d Cir. 1999); see also Richardson v. McKnight, 521 U.S. 399,
403 (1997). To prevail on a Section 1983 claim, a plaintiff must
prove that the challenged conduct was attributable at least in part to
a person acting under color of state law, and that the conduct
deprived the plaintiff of a right, privilege or immunity secured by
the Constitution or laws of the United States.
Wimmer, 176 F.3d at 136-37.
As a threshold inquiry for Section 1983 claims, a court should precisely identify the
constitutional violation alleged. See Baker v. McCollan, 443 U.S. 137, 140 (1979) (“[B]efore the
relationship between the defendant's state of mind and his liability under [Section] 1983 can be
meaningfully explored, it is necessary to isolate the precise constitutional violation with which
he is charged.”).
For the above stated reasons, the Court has not identified any cognizable claims under the
United States Constitution in Mr. Clinton’s Amended Complaint.
Accordingly, Defendants’ motion to dismiss Mr. Clinton’s Section 1983 claim will be
granted.
I. The State Law Claim
According to 28 U.S.C. § 1367,
[I]n any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.
28 U.S.C. § 1367(a). “[D]istrict courts may decline to exercise supplemental jurisdiction over a
claim,” however, if “the district court has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3).
Supplemental or pendant jurisdiction is a matter of discretion, not of right. See United
Mine Workers v. Gibbs, 383 U.S. 715, 726 (1996). Where all federal claims have been dismissed
before a trial, state claims generally should be dismissed without prejudice and left for resolution
by the state courts. See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 (1988) (“[W]hen the federal-law claims have dropped out of the lawsuit in its early stages

and only state-law claims remain, the federal court should decline the exercise of jurisdiction by
dismissing the case without prejudice.”); Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122
(2d Cir. 2006) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors . . . will point toward declining to exercise supplemental jurisdiction over the
remaining state-law claims.” (quoting Cohill, 484 U.S. at 350 n.7)).
“Once a district court's discretion is triggered under § 1367(c)(3), it balances the
traditional values of judicial economy, convenience, fairness, and comity.” Kolari, 455 F.3d at
122 (2d Cir. 2006) (internal quotation marks omitted); see also Catzin v. Thank You & Good
Luck Corp., 899 F.3d 77, 83 (2d Cir. 2018) (“If one of the § 1367(c) categories applies, the

district court may then undertake the discretionary inquiry of whether to exercise supplemental
jurisdiction . . . . ‘[A] district court should not decline to exercise supplemental jurisdiction
unless it also determines that doing so would not promote the values articulated in Gibbs:
economy, convenience, fairness, and comity.’” (quoting Jones v. Ford Motor Credit Co., 358
F.3d 205, 214 (2d Cir. 2004))).
“In weighing these factors, the district court is aided by the Supreme Court's additional
guidance in Cohill that ‘in the usual case in which all federal-law claims are eliminated before
trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the
remaining state-law claims.’” Kolari, 455 F.3d at 122 (quoting Cohill, 484 U.S. at 350 n.7)
(alteration in original); see also Catzin, 899 F.3d at 83 (“Under this prong, in a great many cases,
the evaluation will usually result in the dismissal of the state-law claims.”).
But as the Second Circuit recently emphasized, “[t]he principle that the elimination of
federal-law claims prior to trial generally points to declining to exercise supplemental
jurisdiction ‘in the usual case’ clearly does not mean that the balance of the factors always points

that way.” Catzin, 899 F.3d at 86. Thus, “[w]hen § 1367(c)(3) applies, the district court must still
meaningfully balance the supplemental jurisdiction factors” of judicial economy, convenience,
fairness, and comity before declining to exercise supplemental jurisdiction. Id.
“Because the Court has dismissed this case's federal claim[s], the Court must conduct the
discretionary inquiry required under 28 U.S.C. § 1367(c) to determine whether it is appropriate
to maintain jurisdiction over the remaining state-law claims.” Kleftogiannis v. Inline Plastics
Corp., No. 3:18-CV-1975 (VAB), 2020 WL 3036026, at *8 (D. Conn. June 5, 2020).
The balance of factors here weighs in favor of declining to exercise supplemental
jurisdiction. Principles of comity suggest Connecticut courts are more suited to determine the

viability Mr. Clinton’s claims under Connecticut General Statute Section 31- 51q, Am. Compl.
¶ 2, and state law torts, id. ¶ 28 (alleging intentional infliction of emotional distress). Mr.
Clinton’s “claims may be vindicated, if at all, in state court under traditional state law
principles.” Giammatteo v. Newton, 452 F. App'x 24, 30 (2d Cir. 2011) (citing Baker, 443 U.S. at
146).
Accordingly, the Court declines to exercise supplemental jurisdiction and will dismiss
any state-law claims.
J. LEAVE TO AMEND
Under Federal Rule of Civil Procedure 15(a),
[a] party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or (B) if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule 12(b), (e),
or (f), whichever is earlier.
Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading only with the
opposing party's written consent or the court's leave. The court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). The district court has broad discretion to decide a
motion to amend. See Local 802, Assoc. Musicians of Greater N.Y. v. Parker Meridien Hotel,
145 F.3d 85, 89 (2d Cir. 1998).
Reasons for denying leave to amend include “undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or]
futility of amendment[.]” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Lucente v. Int'l
Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (noting leave to amend may be denied
when amendment is “unlikely to be productive,” such as when an amendment is “futile” and
“could not withstand a motion to dismiss [under] Fed. R. Civ. P. 12(b)(6)”). “[A] motion for
leave to amend a complaint may be denied when amendment would be futile.” Tocker v. Phillip
Morris Cos., Inc., 470 F.3d 481, 491 (2d Cir. 2006) (citing Ellis v. Chao, 336 F.3d 114, 127 (2d
Cir. 2003)); see also Kim v. Kimm, 884 F.3d 98, 105–06 (2d Cir. 2018) (“Therefore, because the
proposed amendments would have no impact on the basis for the district court's dismissal and
would consequently be futile, the district court did not abuse its discretion in denying [plaintiff]
leave to amend.” (citing Ellis, 336 F.3d at 127)).
As discussed, the Court has not identified any cognizable claims under the United States
Consitution in Mr. Clinton’s Amended Complaint, and none of the deficiencies identified above
can be cured by further pleading. See Acito v. IMCERA Grp., Inc., 47 F.3d 47, 55 (2d Cir. 1995)
(“One good reason to deny leave to amend is when such leave would be futile.”). As for the
dismissed state law claims, given their jurisdictional deficiency and the absence of federal court

jurisdiction without any viable federal claims – a deficiency that cannot be addressed by an
amended pleading, at least in federal court – granting leave to amend the Amended Complaint on
that basis also would be futile.
Accordingly, Mr. Clinton’s Complaint will be dismissed with prejudice.
IV. CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss is GRANTED.
All claims are dismissed with prejudice.
The Clerk of Court is respectfully directed to close this case.
SO ORDERED at Bridgeport, Connecticut, this 9th day of July, 2021.

/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10097120. Public record. Not legal advice.