Shakir v. Derby Police Dep't
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Opinion
Janet C. Hall, United States District Judge
TABLE OF CONTENTS
I. INTRODUCTION...173
II. PROCEDURAL BACKGROUND...174
III. STANDARD OF REVIEW...174
IV. FACTS...175
V. DISCUSSION...180
A. Personal Involvement (Marotta)...181
B. Procedural Due Process (Fratta and Stankye)...185
1. Applicable Law...186
2. Removal of A.S. from Shakir's Home...187
3. Interview of A.S. at Derby Police Department...190
4. Release of A.S. to Gandy...192
5. Conspiracy...194
C. Substantive Due Process (Fratta and Stankye)...197
D. Fourth Amendment Unlawful Seizure (Stankye)...198
E. Fourth Amendment Unlawful Search (Stankye)...199
F. Eighth Amendment Conditions of Confinement (Stankye)...204
G. Declaratory Relief (Stankye)...211
VI. CONCLUSION...213
I. INTRODUCTION
The plaintiff, Anwar Shakir, Sr., ("Shakir"), is currently incarcerated at Corrigan-Radgowski Correctional Institution, in Uncasville, Connecticut. He brings this civil rights action pro se pursuant to section 1915 of title 28 of the United States Code against Derby Police Detective Charles Stankye, Department of Children and Families ("DCF") Supervisor Kathie Marotta, and DCF Social Worker Michele Fratta. See Amended Complaint ("Am. Compl.") (Doc. No. 106).
Before the court is a Motion for Summary Judgment filed by Fratta and Marotta and a Motion for Summary Judgment filed by Stankye. See Fratta and Marotta Motion for Summary Judgment ("Fratta MFSJ") (Doc. No. 198); Stankye Motion *174for Summary Judgment ("Stankye MFSJ") (Doc. No. 201). For the reasons below, Fratta and Marotta's Motion is granted, and Stankye's Motion is granted in part and denied in part.
II. PROCEDURAL BACKGROUND
On December 15, 2011, Shakir filed a Complaint against Stankye, Marotta, Fratta, the Derby Police Department, and Assistant State's Attorney Charles Stango. See Complaint ("Compl.") (Doc. No. 1). On March 31, 2015, the court granted a Motion to Dismiss all claims against Stango. See Ruling Granting Stango's Motion to Dismiss (Doc. No. 101). On April 27, 2015, Shakir filed an Amended Complaint naming only Stankye, Marotta, and Fratta as defendants. See Am. Compl. The court then denied Shakir's Motion for Leave to File a Second Amended Complaint to clarify some of the allegations in his first Amended Complaint and to add additional claims. See Ruling (Doc. No. 175). Thus, the first Amended Complaint remains the operative complaint.
On March 31, 2016, the court granted in part and denied in part a Motion to Dismiss filed by Stankye and a separate Motion to Dismiss filed by Fratta and Marotta. See Ruling on Stankye's Motion to Dismiss ("Ruling on Stankye MTD") (Doc. No. 176); Ruling on Fratta and Marotta's Motion to Dismiss ("Ruling on Fratta MTD") (Doc. No. 177). Following these Rulings, Shakir's federal conspiracy claim, his Fourth Amendment search and seizure claims, his Fourteenth Amendment substantive and procedural due process claims, and his Eighth Amendment conditions of confinement claim remain pending against Stankye in his individual capacity, and Shakir's claim for declaratory relief remains pending against Stankye in his official capacity. See Ruling on Stankye MTD. Against Fratta and Marotta, the claims that remain pending are Shakir's Fourteenth Amendment procedural and substantive due process claims and his federal conspiracy claim. See Ruling on Fratta MTD.
On September 26, 2016, Stankye filed a Motion for Summary Judgment, and Fratta and Marotta filed a separate Motion for Summary Judgment. See Stankye MFSJ; Fratta MFSJ. The court addresses both Motions together in this Ruling.
On May 5, 2017, the court appointed pro bono counsel for Shakir. See Order Appointing Pro Bono Counsel (Doc. No. 303). The court granted Shakir's Oral Motion to Reopen Discovery (Doc. No. 314) to give counsel an opportunity to conduct and file supplemental briefs on behalf of Shakir. See Minute Entry (Doc. No. 315). After the reopened discovery period expired, Shakir filed a Declaration of additional evidence, but counsel did not file any supplemental briefings on his behalf. See Declaration by Plaintiff to Provide Court with Additional Evidence ("Pl.'s Suppl. Decl.") (Doc. No. 320). Having received no supplemental briefings, the court decides the Motions for Summary Judgment based on Shakir's initial pro se filings. See Order (Doc. No. 324).
III. STANDARD OF REVIEW
A motion for summary judgment may be granted only where "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Redd v. N. Y. Div. of Parole,
In reviewing the record, the court must "construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Gary Friedrich Enters., L.L.C. v. Marvel Characters, Inc.,
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Janet C. Hall, United States District Judge
TABLE OF CONTENTS
I. INTRODUCTION...173
II. PROCEDURAL BACKGROUND...174
III. STANDARD OF REVIEW...174
IV. FACTS...175
V. DISCUSSION...180
A. Personal Involvement (Marotta)...181
B. Procedural Due Process (Fratta and Stankye)...185
1. Applicable Law...186
2. Removal of A.S. from Shakir's Home...187
3. Interview of A.S. at Derby Police Department...190
4. Release of A.S. to Gandy...192
5. Conspiracy...194
C. Substantive Due Process (Fratta and Stankye)...197
D. Fourth Amendment Unlawful Seizure (Stankye)...198
E. Fourth Amendment Unlawful Search (Stankye)...199
F. Eighth Amendment Conditions of Confinement (Stankye)...204
G. Declaratory Relief (Stankye)...211
VI. CONCLUSION...213
I. INTRODUCTION
The plaintiff, Anwar Shakir, Sr., ("Shakir"), is currently incarcerated at Corrigan-Radgowski Correctional Institution, in Uncasville, Connecticut. He brings this civil rights action pro se pursuant to section 1915 of title 28 of the United States Code against Derby Police Detective Charles Stankye, Department of Children and Families ("DCF") Supervisor Kathie Marotta, and DCF Social Worker Michele Fratta. See Amended Complaint ("Am. Compl.") (Doc. No. 106).
Before the court is a Motion for Summary Judgment filed by Fratta and Marotta and a Motion for Summary Judgment filed by Stankye. See Fratta and Marotta Motion for Summary Judgment ("Fratta MFSJ") (Doc. No. 198); Stankye Motion *174for Summary Judgment ("Stankye MFSJ") (Doc. No. 201). For the reasons below, Fratta and Marotta's Motion is granted, and Stankye's Motion is granted in part and denied in part.
II. PROCEDURAL BACKGROUND
On December 15, 2011, Shakir filed a Complaint against Stankye, Marotta, Fratta, the Derby Police Department, and Assistant State's Attorney Charles Stango. See Complaint ("Compl.") (Doc. No. 1). On March 31, 2015, the court granted a Motion to Dismiss all claims against Stango. See Ruling Granting Stango's Motion to Dismiss (Doc. No. 101). On April 27, 2015, Shakir filed an Amended Complaint naming only Stankye, Marotta, and Fratta as defendants. See Am. Compl. The court then denied Shakir's Motion for Leave to File a Second Amended Complaint to clarify some of the allegations in his first Amended Complaint and to add additional claims. See Ruling (Doc. No. 175). Thus, the first Amended Complaint remains the operative complaint.
On March 31, 2016, the court granted in part and denied in part a Motion to Dismiss filed by Stankye and a separate Motion to Dismiss filed by Fratta and Marotta. See Ruling on Stankye's Motion to Dismiss ("Ruling on Stankye MTD") (Doc. No. 176); Ruling on Fratta and Marotta's Motion to Dismiss ("Ruling on Fratta MTD") (Doc. No. 177). Following these Rulings, Shakir's federal conspiracy claim, his Fourth Amendment search and seizure claims, his Fourteenth Amendment substantive and procedural due process claims, and his Eighth Amendment conditions of confinement claim remain pending against Stankye in his individual capacity, and Shakir's claim for declaratory relief remains pending against Stankye in his official capacity. See Ruling on Stankye MTD. Against Fratta and Marotta, the claims that remain pending are Shakir's Fourteenth Amendment procedural and substantive due process claims and his federal conspiracy claim. See Ruling on Fratta MTD.
On September 26, 2016, Stankye filed a Motion for Summary Judgment, and Fratta and Marotta filed a separate Motion for Summary Judgment. See Stankye MFSJ; Fratta MFSJ. The court addresses both Motions together in this Ruling.
On May 5, 2017, the court appointed pro bono counsel for Shakir. See Order Appointing Pro Bono Counsel (Doc. No. 303). The court granted Shakir's Oral Motion to Reopen Discovery (Doc. No. 314) to give counsel an opportunity to conduct and file supplemental briefs on behalf of Shakir. See Minute Entry (Doc. No. 315). After the reopened discovery period expired, Shakir filed a Declaration of additional evidence, but counsel did not file any supplemental briefings on his behalf. See Declaration by Plaintiff to Provide Court with Additional Evidence ("Pl.'s Suppl. Decl.") (Doc. No. 320). Having received no supplemental briefings, the court decides the Motions for Summary Judgment based on Shakir's initial pro se filings. See Order (Doc. No. 324).
III. STANDARD OF REVIEW
A motion for summary judgment may be granted only where "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Redd v. N. Y. Div. of Parole,
In reviewing the record, the court must "construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Gary Friedrich Enters., L.L.C. v. Marvel Characters, Inc.,
The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.... Summary judgment is inappropriate when the admissible materials in the record make it arguable that the claim has merit, for the court in considering such a motion must disregard all evidence favorable to the moving party that the jury is not required to believe.
Rogoz v. City of Hartford,
Where one party is proceeding pro se, the court must read that party's papers liberally and interpret them "to raise the strongest arguments that they suggest." Willey v. Kirkpatrick,
IV. FACTS1
At all relevant times, Stankye was employed by the Derby Police Department,2 and Fratta and Marotta were employed by DCF. See Stankye's Local Rule 56(a)1 Statement of Facts ("Stankye L.R. 56(a)1") (Doc. No. 201-2) at 1 ¶ 1; Fratta and Marotta's Local Rule 56(a)1 *176Statement of Facts ("Fratta L.R. 56(a)1") (Doc. No. 214-2). Shakir and Starquonda Gandy have one child together, Anwar Shakir, Jr. ("A.S."). See Stankye L.R. 56(a)1, Ex. B (Doc. No. 201-5) at 2; Fratta L.R. 56(a)1 at 2 ¶ 7. Gandy also has another child, Taeja Gandy ("T.G."), of whom Shakir is not the father. See
In 2008, Gandy left the home she shared with Shakir in Connecticut and moved with T.G. first to Kansas and then eventually to California. See Fratta L.R. 56(a)1 at 2 ¶ 7; Plaintiff's Opposition to Fratta and Marotta's MFSJ ("Opp. to Fratta's MSFJ"), Ex. G7 ("Pl.'s Aff. (Fratta)") (Doc. No. 214-3) at 3 ¶ 9. Gandy left A.S. to reside with Shakir in Connecticut. See Fratta L.R. 56(a)1 at 2 ¶ 7; Pl.'s Aff. (Fratta) at 3 ¶ 10. In December of 2008, Gandy returned temporarily to Connecticut and, on January 5, 2009, she reported to Stankye that Shakir had sexually assaulted T.G. when they had lived together. See Fratta L.R. 56(a)1 at 3 ¶ 7; Stankye L.R. 56(a)1 at 1 ¶ 2; Plaintiff's Local Rule 56(a)2 Statement of Facts in Response to Stankye's MFSJ ("Pl.'s L.R. 56(a)2 to Stankye") (Doc. No. 215-2) at 3 ¶ 2. Stankye reported Gandy's allegations to DCF, and Marotta assigned Fratta to investigate the allegations. See Stankye L.R. 56(a)1 at 1 ¶ 3; Pl.'s L.R. 56(a)2 to Stankye at 3 ¶ 3; Fratta L.R. 56(a)1 at 1 ¶ 3. On January 12, 2009, Stankye observed T.G. undergo a forensic interview at the Child Sexual Abuse Clinic at Yale New Haven Hospital ("Yale Clinic"). See Stankye L.R. 56(a)1 at 2 ¶ 4; Pl.'s L.R. 56(a)2 to Stankye at 4 ¶ 4.
On January 13, 2009, Fratta, Marotta, and DCF Program Manager Karen Grayson concluded that DCF had probable cause to believe that A.S. was in imminent risk of physical harm because he was living with Shakir and therefore similarly situated to T.G. at the time of her alleged sexual assault. See Fratta L.R. 56(a)1 at 4 ¶ 14; Plaintiff's Local Rule 56(a)2 Statement of Facts to Fratta's MFSJ ("Pl.'s L.R. 56(a)2 to Fratta") (Doc. No. 214-2) at 6 ¶ 14.e.3 On January 14, Fratta visited Shakir's home and conducted a minimal facts interview with A.S. and Shakir. See Fratta L.R. 56(a)1 at 5 ¶ 19, 6 ¶ 24; Pl.'s L.R. 56(a)2 to Fratta at 13 ¶ 19; 14 ¶ 24; Stankye L.R. 56(a)1, Ex. C at 1. Based on her interview, Fratta found no evidence that Shakir had abused A.S., as well as no violations or unsafe conditions in Shakir's home. See Fratta L.R. 56(a)1 at 7-8 ¶ 28; Pl.'s L.R. 56(a)2 to Fratta at 16 ¶ 28; Stankye L.R. 56(a)1, Ex. C at 1. Fratta concluded that there were no immediate concerns to A.S.'s safety. See Fratta L.R. 56(a)1 at 8 ¶ 29; Pl.'s L.R. 56(a)2 to Fratta at 16 ¶ 29.
After the interview, Shakir signed a DCF Service Agreement/Safety Plan. See Stankye L.R. 56(a)1 at 3 ¶ 8; Fratta L.R. 56(a)1 at 8 ¶ 30; Pl.'s L.R. 56(a)2 to Fratta at 16 ¶ 30. The Service Agreement stated that A.S. would undergo a forensic interview at the Yale Clinic. See Stankye L.R. 56(a)1 at 3 ¶ 8; Fratta L.R. 56(a)1 at 8 ¶ 31; Plaintiff's Sealed Exhibits ("Pl.'s Sealed Exhibits") (Doc. No. 213), Ex. X ("Service Agreement") (Doc. No. 213-4). It also stated that Shakir would "allow [A.S.] to stay with his paternal grandmother pending further investigation." See Service Agreement. The parties do not dispute that the signed agreement contains this language, but do disagree as to the interpretation of the requirement. Fratta and Stankye interpret the agreement to require *177A.S. to stay with Shakir's mother, Khalila Shakir Browning, and to require Browning to care for A.S. See Stankye L.R. 56(a)1 at 3 ¶ 9; Fratta L.R. 56(a)1 at 8 ¶ 32. Shakir contends that the agreement did not specify that Browning would care for A.S., such as providing food, clothing, and rides, but rather that he would continue to serve that role. See Pl.'s L.R. 56(a)2 to Fratta at 17 ¶¶ 32-33; Pl.'s L.R. 56(a)2 to Stankye at 4 ¶¶ 8-9.
A.S.'s forensic interview at the Yale Clinic was scheduled for January 20, 2009, at 11:00 a.m., but the interview did not occur on that date because Shakir was late in bringing A.S. and because the Yale Clinic did not want to proceed with Shakir, a possible abuser, present. See Stankye L.R. 56(a)1 at 3 ¶ 10; Fratta L.R. 56(a)1 at 9 ¶ 36; Pl.'s L.R. 56(a)2 to Fratta at 19 ¶ 36. Shakir alleges that he was only made aware that his presence would be a problem on that date. See Pl.'s L.R. 56(a)2 to Stankye at 4-5 ¶¶ 12-13. DCF agreed to reschedule the interview, and Shakir agreed that Browning would bring A.S. to the rescheduled interview. See Stankye L.R. 56(a)1 at 4 ¶ 12; Pl.'s L.R. 56(a)2 to Fratta at 19 ¶ 36. Shakir alleges, however, that DCF never contacted him to reschedule. See Pl.'s L.R. 56(a)2 to Stankye at 5 ¶ 12.
On February 4, 2009, based on the evidence of Shakir's alleged conduct toward T.G., Stankye prepared an application and affidavit in support of a warrant for Shakir's arrest on charges of sexual assault in the first degree and risk of injury to or impairing the morals of a child. See Stankye L.R. 56(a)1 at 4 ¶ 14; Pl.'s L.R. 56(a)2 to Stankye at 5 ¶ 14. A judge issued the warrant later that day. See Stankye L.R. 56(a)1 at 4 ¶ 15; Pl.'s L.R. 56(a)2 to Stankye at 5 ¶ 15.
Stankye alleges that, "on or about" February 6, 2009, he then called Gandy to inform her that an arrest warrant for Shakir had been issued. See Stankye L.R. 56(a)1 at 4 ¶ 16. He alleges that Gandy indicated that she was in Connecticut and prepared to take custody of A.S. after the arrest. See
On February 6, 2009, Stankye and another detective attempted to serve the warrant at Shakir's place of employment, but Shakir was not at work that morning. See Stankye L.R. 56(a)1 at 5 ¶ 17-18; Pl.'s Exhibits, Ex. K11 (Doc. No. 212-27). Shakir alleges that he was not at work because he was taking A.S. to a doctor's appointment. See Pl.'s L.R. 56(a)2 to Stankye at 6 ¶¶ 18-19. Stankye acknowledges that he was informed by A.S.'s school that Shakir had picked up his son earlier that day, but does not mention knowledge of a doctor's appointment. See Stankye L.R. 56(a)1 at 5 ¶ 19.
Stankye, along with a Derby Police lieutenant and four officers, then went to Shakir's residence to serve the warrant. See Stankye L.R. 56(a)1 at 5 ¶ 20; Pl.'s L.R. 56(a)2 to Stankye at 6 ¶ 20. Prior to executing the warrant, Stankye called Browning to determine A.S.'s whereabouts and was informed that A.S. was with Browning and A.S.'s aunt. See Stankye L.R. 56(a)1 at 6-7 ¶ 26. Stankye requested that Browning bring A.S. to Shakir's residence, so he could confirm A.S.'s safety and well-being. See
After waiting an hour, during which time Browning had not brought A.S. to the house, Stankye and the other officers knocked on Shakir's door to execute the warrant, but Shakir did not initially respond. See Stankye L.R. 56(a)1 at 6 ¶¶ 22-23; Stankye MFSJ, Ex. A ("Stankye Aff.") (Doc. No. 201-4) at 5 ¶ 18. Shakir alleges that he delayed in responding because he was comforting his son, who was traumatized by the officers banging on the door. See Pl.'s L.R. 56(a)2 to Stankye at 7 ¶¶ 22-23. After 15-20 minutes, Shakir voluntarily exited his residence, and an officer handcuffed him and placed him in a police vehicle. See Stankye L.R. 56(a)1 at 7 ¶ 27; Pl.'s L.R. 56(a)2 to Stankye at 7 ¶ 27.
Once in the vehicle, Stankye asked Shakir at least twice about A.S.'s location, and Shakir refused to answer. See Stankye L.R. 56(a)1 at 7 ¶ 28; Pl.'s L.R. 56(a)2 at 8 ¶ 28. Stankye also affirms in his L.R. 56(a)1 Statement of Facts that he learned that A.S. was not with Browning. See Stankye L.R. 56(a)1 at 7 ¶ 26; Fratta MFSJ, Ex. A ("Fratta Aff.") at 10 ¶ 42.f. In Stankye's Affidavit, however, he does not state that he learned that A.S. was not with Browning; rather, he states that he was unable to confirm that A.S. was with her, presumably because she did not bring A.S. to the residence, as Stankye had requested. See Stankye Aff. at 4 ¶ 17, 5 ¶ 21. Stankye alleges that, because they were unable to confirm A.S.'s location, he and the other officers demanded entry into Shakir's residence to search for A.S. See Stankye L.R. 56(a)1 at 7 ¶ 30. Shakir disputes, however, that Stankye was unaware of A.S.'s whereabouts, alleging that Stankye was informed earlier that day that Shakir had taken A.S. to a doctor's appointment. See Pl.'s L.R. 56(a)2 to Stankye at 7 ¶ 25, 30. Shakir also challenges the other bases cited for the officers' decision to enter his home. See
Shakir and Stankye also dispute what occurred during the entry and search. According to Stankye, Shakir's brother, Rasheed Shakir ("Rasheed"), opened the door in response to the demands made by the officers and granted them entry into the residence. See Stankye L.R. 56(a)1 at 8 ¶ 31. Stankye alleges that he was not aware of Rasheed's identity at the time. See
It is undisputed that Stankye was not the officer that transported Shakir to the DPD. See Stankye L.R. 56(a)1 at 9 ¶ 38; Pl.'s L.R. 56(a)2 to Stankye at 12 ¶ 38. Shakir alleges that Stankye did, however, transport him from the police vehicle to the lockup area. See Pl.'s L.R. 56(a)2 to *179Stankye at 12 ¶ 34. According to Shakir, at the DPD, Stankye taunted him about his high bail, required him to strip of his clothing, and left him in the holding cell. See Plaintiff's Opposition to Stankye MFSJ ("Opp. to Stankye MFSJ"), Affidavit ("Pl.'s Aff. (Stankye)") (Doc. No. 215-3) at 14 ¶¶ 63-65. Shakir further alleges that the air conditioning in his cell was turned up to maximum and that he became physically sick as a result. See Pl.'s L.R. 56(a)2 to Stankye at 12 ¶ 40; Pl.'s Aff. (Stankye) at 14 ¶ 67. Shakir admits that he did not see Stankye or anyone else turn on the air conditioning, but infers that Stankye was responsible because Stankye was in charge of the search earlier that day. See Pl.'s L.R. 56(a)2 at 12 ¶ 39; Deposition by Shakir ("Shakir Dep. Tr.") (Doc. No. 216) at 90-91.
Stankye disputes all of these facts. He alleges that he did not use any physical force against Shakir on February 6, 2009, and that he did not have any contact with Shakir at the DPD on that date. See Stankye L.R. 56(a)1 at 9 ¶ 41; Stankye Aff. at 6 ¶¶ 28-29. Stankye further alleges that he did not know how to adjust the air conditioning at the police station, did not direct anyone else to do so, and is unaware of anyone having done so. See Stankye L.R. 56(a)1 at 9 ¶¶ 39-40.
While Shakir was in the holding cell, Stankye contacted Fratta and Grayson to inform them that A.S. was at the DPD. See Fratta L.R. 56(a)1 at 11 ¶ 44. Fratta and Stankye allege that Grayson authorized Fratta to interview A.S. See id.; Stankye L.R. 56(a)1 at 8 ¶ 34. Stankye further asserts that he did not participate in or observe the interview. See Stankye L.R. 56(a)1 at 8 ¶ 35. Shakir, however, states to the contrary that Fratta and Stankye agreed to the interview, and that Stankye was present. See Pl.'s L.R. 56(a)2 to Stankye at ¶ 7 34-35; Pl.'s L.R. 56(a)2 to Fratta at 27 ¶ 44. A.S. did not report any abuse during the interview. See Fratta L.R. 56(a)1 at 11 ¶ 47; Pl.'s L.R. 56(a)2 to Fratta at 27 ¶ 47.
The parties then agree that, after the interview, A.S. was released into Gandy's custody, but they dispute who authorized the transfer. See Stankye L.R. 56(a)1 at 9 ¶ 36; Pl.'s L.R. 56(a)2 to Stankye at 11 ¶ 36; Fratta L.R. 56(a)1 at 13 ¶ 57; Pl.'s L.R. 56(a)2 to Fratta at 28 ¶ 48. Stankye alleges that Fratta consented to A.S.'s release to Gandy and that he has not seen A.S. since Gandy took him. See Stankye L.R. 56(a)1 at 9 ¶¶ 36-37. Fratta alleges that Stankye informed her that Gandy would be picking up A.S. and that Fratta and Gandy should leave the police station to avoid a confrontation with Browning. See Fratta L.R. 56(a)1 at 11 ¶ 48, 12 ¶ 56. Shakir alleges that Stankye, Fratta, and Marotta were aware that Gandy intended to bring A.S. back with her to California and conspired together to allow her to take him. See Pl.'s L.R. 56(a)2 to Stankye at 5 ¶ 16; Pl.'s L.R. 56(a)2 to Fratta at 28 ¶ 48; Pl.'s Exhibits, Ex. Z at 3, 6.
Later that evening, Fratta learned that Shakir had been released on bond and intended to retake custody of Shakir. See Fratta L.R. 56(a)1 at 13 ¶ 59; Pl.'s L.R. 56(a)2 to Fratta at 31 ¶ 59. Fratta alleges that she was concerned about A.S.'s safety if he were placed in Shakir's care. See Fratta L.R. 56(a)1 at 13 ¶ 60. She spoke with Marotta, who spoke with Grayson, and Grayson determined that a service agreement for Gandy was unnecessary because Gandy had legal authority to have custody of A.S. and DCF had no safety concerns about her. See
Shakir states that, after his release, he contacted Browning and the New Haven Police Department (NHPD) to request assistance in retaking custody of A.S. See Pl.'s Aff. (Fratta) at 38-39. Although Shakir drove to Gandy's mother's house, where he believed A.S. to be staying, he did not enter the home. See id. at 39. He alleges that the police informed him that they had contacted DCF and were told by Marotta to leave A.S. with Gandy because she could keep A.S. as long as she did not leave the state. See id.; Pl.'s L.R. 56(a)2 to Fratta at 35-37 ¶¶ 69.e, 70-72. Fratta and Marotta dispute this and allege that neither of them received any calls on the DCF hotline from the NHPD between February 6 and February 8, 2009. See Fratta L.R. 56(a)1 at 14 ¶ 67. They allege that it was DCF Social Worker Kerry Cayward who spoke to Officer Josh Kyle, and it was DCF Social Workers Karen Ginand and Shawn Meaike who spoke to Officer Mastriano. See id. at 14-17 ¶¶ 68-75.
Shakir then alleges that, on February 7, a NHPD officer went to Gandy's mother's home and found neither A.S. nor Gandy there. See Pl.'s Aff. (Fratta) at 40. On February 11, 2009, Gandy called Fratta to inform her that Gandy and A.S. were in California. See Fratta L.R. 56(a)1 at 17 ¶ 76. Fratta provided relevant case information on Gandy and A.S. to the California Child Protection Services. See id. at 18 ¶ 77.
Fratta subsequently completed her investigation of both Gandy and Shakir. See Fratta L.R. 56(a)1 at 18 ¶ 78, 19 ¶ 83; Pl.'s L.R. 56(a)2 to Fratta at 39 ¶ 78, 40-41 ¶ 83. DCF initially substantiated the allegations of physical neglect against Gandy, but reversed that finding on appeal. See Fratta L.R. 56(a)1 at 18-19 ¶¶ 79-82; Pl.'s L.R. 56(a)2 to Fratta at 39-40 ¶¶ 78-82.4 DCF substantiated the allegations of sexual abuse of T.G. against Shakir and upheld the substantiation on appeal. See Fratta L.R. 56(a)1 at 19-20 ¶¶ 83-87; Pl.'s L.R. 56(a)2 to Fratta at 40-41 ¶¶ 83-87.5
On February 25, 2009, Shakir attended a hearing before the Derby Probate Court regarding an application that he had previously filed on December 31, 2008, for temporary custody of A.S. and to remove Gandy as A.S.'s guardian. See Fratta L.R. 56(a)1 at 20 ¶ 88; Pl.'s L.R. 56(a)2 to Fratta at 41 ¶ 88. The probate judge did not grant Stankye's application. See Stankye L.R. 56(a)1 at 10 ¶¶ 43-44; Pl.'s L.R. 56(a)2 to Stankye at 13 ¶ 43. Fratta alleges that the probate judge explained to Shakir that, because there were no court orders or written custody agreements between Shakir and Gandy, Shakir and Gandy each had equal legal rights to A.S. See Fratta L.R. 56(a)1 at 20 ¶ 94. Shakir disputes that this occurred. See Pl.'s L.R. 56(a)2 to Fratta at 42 ¶ 94. Shakir alleges instead that his attorney told him that the probate judge stated that A.S. should not have been taken out of Connecticut without a court order and should be returned immediately to the state. See id.; Pl.'s L.R. 56(a)2 to Stankye at 13 ¶ 43.
V. DISCUSSION
Stankye raises eight arguments in support of his Motion for Summary Judgment.
*181He contends: (1) that Shakir's request for declaratory relief is barred by the Eleventh Amendment; (2) that Shakir has no standing to assert a claim of unlawful seizure on behalf of his son; (3) that Shakir fails to raise a genuine issue of material fact that the entry into his residence was an unlawful search; (4) that Shakir fails to raise a genuine issue of material fact that his procedural due process rights were violated; (5) that Shakir fails to raise a genuine issue of material fact that his substantive due process rights were violated; (6) that the Eighth Amendment does not apply to Stankye's conduct, which occurred prior to Shakir's conviction for any crime; (7) that Shakir fails to raise a genuine issue of material fact that Stankye participated in a conspiracy to deprive him of his rights; and (8) that he is entitled to qualified immunity as to Shakir's Fourth and Fourteenth Amendment claims.6 See Stankye Mem. in Supp.
Fratta and Marotta separately assert five arguments in support of their Motion. They contend: (1) that Shakir fails to raise a genuine issue of material fact that Marotta was personally involved in any violation of Shakir's constitutional rights; (2) that Shakir fails to raise a genuine issue of material fact that his procedural due process rights were violated; (3) that Shakir fails to raise a genuine issue of material fact that his substantive due process rights were violated; (4) that Shakir fails to raise a genuine issue of material fact that Fratta and Marotta participated in a conspiracy to deprive him of his rights; and (5) that they are entitled to qualified immunity. See Memorandum in Support of Fratta and Marott's MFSJ ("Fratta and Marotta Mem. in Supp.") (Doc. No. 198-1). Because of the overlap in the arguments in the two Motions, the court addresses them together.
A. Personal Involvement (Marotta)
First, Marotta argues that Shakir has not presented evidence raising a genuine issue of material fact as to her personal involvement in any violation of his due process rights. See Fratta Mem. in Supp. at 33-35.
"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." See Colon v. Coughlin,
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring.
In Ashcroft v. Iqbal, the Supreme Court addressed the issue of supervisory liability and concluded that "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."
Shakir argues that Marotta was personally involved in the violation of his constitutional rights under three of the above categories.7 First, he argues that she directly participated in the violation of his due process rights by telling the New Haven Police Department ("NHPD") to leave A.S. in the care of Gandy. See Memorandum in Opposition to Fratta MFSJ ("Mem. in Opp. to Fratta") (Doc. No. 214-1) at 60. Second, he argues that Marotta was informed of the conspiracy to deprive him of custody of A.S. and failed to take action to remedy the wrong. See id. at 60-62. Finally, he argues that Marotta created a policy or custom sanctioning the violations. See id. at 62-66.
Under the first category of direct supervisory liability, Shakir does not allege that Marotta participated in the removal of A.S. from Shakir's home, the interview of A.S. at the DPD,8 or the release of A.S. into *183Gandy's custody. The only direct participation that Shakir identifies in his Memorandum is Marotta's alleged statement to NHPD Officer Mastriano to "stand down leave Jr. in the care of Ms. Gandy." See id. at 60. However, Shakir has not presented admissible evidence to raise a genuine issue of material fact that it was Marotta who made the alleged statements to the NHPD.
According to Marotta's Affidavit, the one time that she spoke with Gandy was in January, at which time she informed Gandy that she was not an attorney and could not provide legal advice. See Fratta MFSJ, Ex. B ("Marotta Aff.") (Doc. No. 198-3) at 5 ¶ 21. Marotta states that she was not present during the phone calls on February 6, 2009, between Stankye, Fratta, and Grayson about Shakir's arrest and A.S.'s interview. See id. at 5 ¶ 22. Fratta informed her later that day of what had occurred, as well as of Stankye's concerns that Shakir would try to retake custody of A.S. after Shakir's release on bond. See id. at 5 ¶ 23; see also Fratta Aff. at 14 ¶ 66. Marotta then contacted Grayson, and Fratta and Marotta both state that it was Grayson who determined that Gandy should contact the police department if Shakir attempted to retake A.S. See Marotta Aff. at 5 ¶ 24; Fratta Aff. at 14 ¶ 66. Fratta, not Marotta, relayed Grayson's advice to Gandy. See Fratta Aff. at 14 ¶ 67.
Marotta further avers that she was not at work from the late evening of February 6, 2009, to February 8, 2009, and thus did not receive any phone calls from the NHPD concerning Shakir. See Marotta Aff. at 5 ¶ 25. She only learned of the calls on February 9, 2009, after the events had transpired. See id. at 6 ¶ 26. According to Fratta and Marotta, NHPD Officer Josh Kyle spoke with DCF Social Worker Kerry Cayward, and NHPD Officer Mastriano spoke with DCF Social Workers Karen Ginand and Shawn Meaike. See id. at 6 ¶ 26; Fratta Aff. at 14-17 ¶¶ 70-74; Fratta MFSJ, Ex. E ("Cayward Aff.") (Doc. No. 198-6); id., Ex. F ("Meaike Aff.") (Doc. No. 198-7).
Shakir alleges to the contrary that Officers Kyle and Mastriano spoke to Marotta, who informed them to "stand down" and leave A.S. with Gandy. See Pl.'s L.R. 56(a)2 to Fratta at 34 ¶ 68, 35 ¶ 69.e, 36 ¶ 71, 39 ¶ 74. To support this allegation, he cites to his own Affidavit and to Marotta's answers to his interrogatories. See id. His Affidavit states that Officer Kyle told Shakir that he had spoken to Marotta and that Marotta had told him to leave A.S. in Gandy's care because as long as Gandy did not leave the state, she could keep A.S. See Pl.'s Aff. (Fratta) at 39, 40, 42. This statement is inadmissible hearsay, however,9 and therefore cannot be the basis for establishing a genuine issue of material fact. See Raskin v. Wyatt Co.,
Nor does Marotta's answer to Shakir's interrogatory create a genuine issue of material fact. In response to Shakir's question, "Do you deny or admit that you told the officers to leave Anwar, Jr. with the plaintiff's ex, as long as she does not leave CT, she can have Anwar in her care?," Marotta answered, "Deny in part and admit in part. DCF Hotline received a phone call from New Haven Police Officer Mastriano *184and he reported the paternal grandmother was attempting to get Anwar, Jr. back in her care." Pl.'s Exhibits, Ex. A1 at 4. Her statement admits neither that the alleged statement was made nor that she was the one who spoke with Officer Mastriano. Shakir attempts to reason that her answer supports an inference that she made the statement because it is not a straight denial, as is Fratta's answer to the same question. See Mem. in Opp. to Fratta at 60. This reasoning, however, misreads Marotta's answer and relies purely on speculation. Therefore, as neither Marotta's answer nor Shakir's Affidavit presents admissible evidence that Marotta spoke with either NHPD officer, Shakir has not raised a genuine issue of fact that Marotta directly participated in a constitutional violation.
Under the second Colon category, Shakir argues in the alternative that Marotta was aware of the conspiracy to violate his constitutional rights and failed to remedy the violation. See id. at 60-62. Again, however, he has not introduced admissible evidence to create a genuine issue of material fact as to her awareness of the key components of the alleged conspiracy or underlying constitutional violations. In her Affidavit and answers to Shakir's interrogatories, Marotta denies being informed by Stankye of the arrest warrant prior to its execution, agreeing to or participating in the interview of A.S. at the police department, or being aware of Gandy's plans to leave Connecticut with A.S. See Pl.'s Exhibits, Ex. A1 at 3, 5; Marotta Aff. at 5 ¶¶ 22-25. She avers that she was only informed of the arrest, interview, and release of A.S. to Gandy after the fact, in the late afternoon on February 6, 2009. See Marotta Aff. at 5 ¶ 23. Even then, she does not admit to knowledge of any plans for relocation. See id. She was, however, aware of Grayson's decision to advise Gandy to contact the police department if Shakir attempted to retake A.S. after his release on bond. See id. at 5 ¶ 24. None of this information, relayed after the fact, was communicated as a report or appeal to alert her to a constitutional violation. Based on this limited information alone, Marotta would not have been reasonably apprised that a violation was occurring.
Shakir has introduced no admissible evidence contradicting Marotta's Affidavit. He cites Stankye's deposition as evidence that Stankye told Marotta about the arrest warrant, but Stankye's deposition states merely that he called "DCF" and does not specify to whom at DCF Stankye spoke. See Mem. in Opp. to Fratta at 60-61; Pl.'s Exhibits, Ex. H at 88-89. Shakir presents no corroborating evidence indicating that person was Marotta. Additionally, he attempts to reason from the fact that Marotta was Fratta's supervisor that Fratta conveyed all of the information of which she was aware to Marotta. See Mem. in Opp. to Fratta at 61-62. This assumption, however, is unfounded, has no evidentiary basis, and relies on speculation, as Shakir has no personal knowledge of what information was or was not communicated between Fratta and Marotta. Moreover, there is no evidence that Marotta received a report of any wrongdoing or unconstitutional action. Therefore, Shakir has not created a genuine issue of material fact that Marotta was informed of a constitutional violation that had to be remedied. Her failure to take action to remedy a violation of which she was not sufficiently aware cannot be the basis for a finding of personal involvement.
Finally, Shakir argues that Marotta created a policy or custom that sanctioned the constitutional violation. See Mem. in Opp. to Fratta at 62-66. Shakir mistakenly cites Monell v. Department of Social Services of the City of New York,
Because Shakir has offered no evidence on which a reasonable jury could find that Marotta was personally involved in the deprivation of Shakir's rights under any of the three categories for supervisory liability, no genuine issue of material fact exists as to Marotta's liability, and she is entitled to summary judgment. Accordingly, Fratta and Marotta's Motion for Summary Judgment is granted as to all claims against Marotta. The remainder of the Ruling only addresses claims as to Fratta and Stankye.
B. Procedural Due Process (Fratta and Stankye)
Shakir claims that Stankye and Fratta violated his procedural due process rights by depriving him of custody of A.S. without a hearing. See Am. Compl. at 14 ¶ 55, 17-18 ¶ 65. Stankye and Fratta both argue in their respective Motions for Summary Judgment that their conduct did not constitute a deprivation of custody and thus did not implicate Shakir's procedural due process rights. See Stankye Mem. in Supp. at 12-13; Fratta Mem. in Supp. at 19-26. Stankye additionally argues that, even if his conduct did implicate Shakir's due process rights, those rights were not violated because a pre-deprivation hearing was unnecessary due to emergency circumstances. See Stankye Mem. in Supp. at 13-16. Finally, both Stankye and Fratta argue that, even if a genuine issue of fact exists as to whether their conduct violated Shakir's due process rights, they are protected by qualified immunity because their conduct was objectively reasonable. See Stankye Mem. in Supp. at 25-28; Fratta Mem. in Supp. at 37-39.
Although Shakir's Memoranda are not expressly clear, the court reads his argument liberally to identify four actions by which Shakir asserts that Stankye and/or Fratta deprived him of the custody, care, and management of A.S. See Memorandum in Opposition to Stankye's MFSJ ("Mem. in Opp. to Stankye") (Doc. No. 215-1) at 19-21; Mem. in Opp. to Fratta at 16-43. First, Shakir argues that Stankye deprived him of custody by physically removing A.S. from his residence after Shakir's arrest. See Mem. in Opp. to Stankye at 19-20. The bulk of Shakir's argument against Stankye focuses on this conduct. Second, Shakir argues that Fratta's interview of A.S. at the DPD, which Stankye permitted and facilitated, deprived him of his liberty interest in the care and management of A.S. because he did not consent to the interview. See Mem. in Opp. to Fratta at 34-36; Mem. in Opp. to Stankye at 20-21. Third, Shakir argues that Stankye and/or Fratta improperly released A.S. into the custody of Gandy in violation of their Service Agreement. See Mem. in Opp. to Fratta at 16-19; Mem. in Opp. to Stankye at 21. Finally, Shakir argues that Stankye and Fratta conspired with Gandy to assist her in relocating A.S. to California. See Mem. in Opp. to Fratta at 52-59; Mem. in Opp. to Stankye at 21. The court addresses each theory in turn.
*1861. Applicable Law
The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. In order to prevail on a Fourteenth Amendment procedural due process claim, a plaintiff must show (1) that he possessed a protected liberty or property interest of which he has been deprived; and (2) that the procedures afforded to him were not constitutionally sufficient. See Victory v. Pataki,
Parents have a constitutionally protected interest in maintaining custody of their children. See Troxel v. Granville,
However, where no deprivation of custody, care, or management has occurred, the plaintiff's procedural due process rights have not been triggered. See Frazier v. Williams, No. 15-CV-6531-KAMLB,
Additionally, even where a deprivation has occurred, officials may temporarily remove a child from the parent's custody without consent or court order in "emergency" circumstances. Robison v. Via,
Finally, even if a plaintiff's procedural due process rights have been violated, a government official is nonetheless not liable if he is entitled to qualified immunity. 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.' " Pearson v. Callahan,
Under the first approach to qualified immunity, a right is clearly established if, "at the time of the challenged conduct ... every 'reasonable official would have understood that what he is doing violates that right.' " Ashcroft v. al-Kidd,
Even if the law is clearly established, a public official may still be entitled to qualified immunity "if it was objectively reasonable for him at the time of the challenged action to believe his acts were lawful." Taravella v. Town of Wolcott,
2. Removal of A.S. from Shakir's Home
It is undisputed that, after Shakir was arrested and taken into police custody, Stankye and other officers entered Shakir's home, removed A.S., and brought him to the police station. See Stankye L.R. 56(a)1 at 8 ¶¶ 31-32; Stankye Aff. at 6-7 ¶¶ 23-24; Pl.'s L.R. 56(a)2 to Stankye at 10-11 ¶¶ 32, 34; Pl.'s Aff. (Stankye) at 13 ¶ 55. Fratta does dispute her involvement in Stankye's actions. See Fratta Aff. at 10-11 ¶ 45. However, because the court concludes that Stankye's actions did not deprive Shakir of a protected liberty interest, it need not decide whether a genuine dispute of fact exists as to the degree of Fratta's involvement.
While the Second Circuit has not delineated the boundaries of "what ... kinds of government action may violate a parent's protected liberty interest in the care, custody, and management of his or her child in the child abuse context," it has stated that physical removal of the child from the parent's custody implicates this liberty interest. Phillips v. Cty. of Orange,
The case law regarding the due process required when a child is removed after the parent has been arrested is sparse because many cases involving this set of facts do not raise a procedural due process claim at all. See, e.g., United States v. Bradley,
In this case, Shakir has not raised a genuine dispute of fact that Stankye has deprived him of either legal or physical custody of A.S. because Stankye removed A.S. from the house and brought him to the police station only after Shakir's arrest. First, Shakir's legal rights with respect to his son were not changed by Stankye's actions on February 6, 2009, nor does Shakir allege that they were. Although Gandy ultimately took his son to California, Shakir had recourse in state court to seek a court order regarding custody of A.S. See Conn. Gen. Stat. § 46b-56(a). Second, Shakir did not have physical custody of A.S. at the time that Stankye removed A.S. from the residence and brought him to the police station.12 Shakir had already been arrested and taken into police custody by the time Stankye and the other officers entered the residence to search for A.S. See Pl.'s Aff. (Stankye) at 11-13 ¶¶ 46, 48-55; Stankye Aff. at 5 ¶¶ 19-23. Shakir himself states that he left A.S. in his brother's care before turning himself in. See Pl.'s Aff. (Stankye) at 13 ¶ 55; Pl.'s L.R. 56(a)2 to Stankye at 10 ¶ 30(f); Mem. in Opp. to Fratta at 30 (stating that "he [Shakir] specifically left his son in the care of his brother, who was now Jr.'s [A.S.'s] guardian"). This reflects Shakir's own awareness that he could not maintain physical custody of his son while he was detained in jail.
Because Shakir does not claim to have had physical custody of A.S. at the time, then, he has not raised a genuine dispute of fact as to whether Stankye removed A.S. from his custody when he took A.S. from the house to the police station. Thus, the evidence, interpreted in the light most favorable to Shakir, is insufficient for a reasonable jury to find a deprivation of custody triggering due process, and Stankye is entitled to judgment as a matter of law. Because there was no deprivation of custody, the court need not consider the parties' dispute over emergency circumstances.
Alternatively, even if Stankye's removal of A.S. from the house to the police station did deprive Shakir of a protected liberty interest, Stankye is entitled to summary judgment on the ground of qualified immunity. Although Stankye focuses his qualified immunity argument on the second prong of objective reasonableness, see Stankye Mem. in Supp. at 27-28, *190the court concludes that the first prong is more appropriate. Given the court's own difficulty in finding case law as to whether removal of a child after the parent has already been arrested constitutes a deprivation of custody, the court concludes that the law was not clearly established at the time.13 The court is not aware of, nor has Shakir identified, any Second Circuit precedent holding that a removal under such circumstances deprives the plaintiff of a protected liberty interest under the Due Process Clause.14 Given the ambiguity in the law, Stankye is alternatively entitled to summary judgment on qualified immunity grounds as a matter of law.
3. Interview of A.S. at Derby Police Department
Next, Shakir argues that Fratta's interview of A.S. at the Derby Police Department deprived him of the care and management of A.S. because it occurred without his consent. See Mem. in Opp. to Fratta at 34-36; Mem. in Opp. to Stankye at 20-21. It is undisputed that Fratta interviewed A.S. at the police station,15 but the parties do dispute who authorized the interview and the degree to which Stankye was involved. See Stankye L.R. 56(a)1 at 8 ¶¶ 34-35; Pl.'s L.R. 56(a)2 to Stankye at 11 ¶¶ 34-35; Fratta L.R. 56(a)1 at 11 ¶¶ 44-46; Pl.'s L.R. 56(a)2 to Fratta at 27 ¶¶ 44-46. Again, however, because the court concludes that no genuine issue of fact exists as to whether Fratta's interview deprived Shakir of a protected liberty interest, the court need not determine whether the evidence in the record is sufficient to create a genuine dispute as to the issue of responsibility.
The court concludes as a matter of law that an unconsented interview by DCF, without more, does not amount to a deprivation of care or management under the Due Process Clause. Fratta cites a number of cases decided by other courts in this *191Circuit that found that, in the context of a child abuse investigation, an in-school interview of a child without the parent's consent or presence did not deprive the parent of a right to the custody, care, or management of the child. See Fratta Mem. in Supp. at 21 (citing Guan N. v. NYC Dep't of Educ., No. 11 CIV. 4299 AJN,
Shakir argues that these cases can be distinguished because they occurred at a school rather than at the police station. See Mem. in Opp. to Fratta at 34-36. At least one case notes a distinction between an in-school interview and one conducted at a police station after the child was removed from school. See Guan,
While no court in this Circuit has considered an interview at a police station, a change in the location of the interview does not change its effects on the parent's rights. The court in Phillips reasoned that it had found no authority to support a conclusion that the right to care, custody, and management includes "the parents' right to teach their children not to speak to strangers ... about their intimate home life and their private parts" or "the parents' right to be present to offer comfort and consolation to their child when being questioned." Phillips,
Furthermore, even if Fratta's interview did deprive Shakir of his right to the care and management of A.S., Fratta is nonetheless entitled to qualified immunity because the law at the time had not clearly established that an interview alone-held in a location the child was already at-could constitute a deprivation of custody, care, or management that would trigger due process requirements. "[O]utside of removal or the compulsory provision of medical care, the Second Circuit has not specified what other kinds of government action may violate a parent's protected liberty interest in the care, custody, and management of his or her child in the child abuse context." Phillips,
*192District courts in this Circuit have found in-school interviews do not deprive parents of a protected liberty interest, but have not considered whether that holding also applies to interviews conducted in more restrictive locations, such as a police station. These decisions have not been reviewed by the Second Circuit. Therefore, relying only on Supreme Court and Second Circuit precedent, the court cannot say that every reasonable officer at the time16 would have known that interviewing a child at a police station without parental consent would require procedural due process under the Fourteenth Amendment. Accordingly, Fratta is also entitled to summary judgment for the interview of A.S. on the ground of qualified immunity.
4. Release of A.S. to Gandy
Shakir also appears to challenge the defendants' decision to release A.S. into the custody of Gandy while Shakir was being detained. See Mem. in Opp. to Fratta at 17-18; Mem. in Opp. to Stankye at 21. Again, it is undisputed that A.S. was transferred to Gandy's custody after his interview by Fratta, but the parties dispute who was responsible for authorizing Gandy to take custody of A.S. See Stankye L.R. 56(a)1 at 9 ¶ 36; Pl.'s L.R. 56(a)2 at 11 ¶ 36; Fratta L.R. 56(a)1 at 11-12 ¶¶ 48-57; Pl.'s L.R. 56(a)2 at 28-31 ¶¶ 48-57. Stankye and Fratta argue that releasing A.S. to Gandy was appropriate and not a deprivation of Shakir's custody because Gandy was a joint guardian of A.S. with legal rights equal to those of Shakir. See Fratta Mem. in Supp. at 22-26; Stankye Mem. in Supp. at 12-13. The court agrees with Stankye and Fratta that no deprivation of custody occurred and therefore needs not determine whether a genuine issue exists as to who authorized the release of A.S. to Gandy.
Section 45a-606 of the Connecticut General Statutes states, "The father and mother of every minor child are joint guardians of the person of the minor, and the powers, rights and duties of the father and the mother in regard to the minor shall be equal." Conn. Gen. Stat. § 45a-606 (2017). The rights of guardianship include "the obligation of care and control" and "the authority to make major decisions affecting the minor's education and welfare." Conn. Gen. Stat. § 45a-604 (2017).17 In this case, Shakir acknowledges that no court order had been issued altering the equal distribution of parental rights established by section 45a-606. See Pl.'s L.R. 56(a)2 to Stankye at 13 ¶¶ 43-44. Although Shakir had filed a petition in Derby Probate Court to remove Gandy as joint *193guardian and to obtain sole or temporary custody of A.S. on December 31, 2008, the Derby Probate Court had not made a determination in the case by February 6, 2009, when Gandy received custody of A.S. at the police station. See Pl.'s Aff. (Stankye) at 5 ¶ 21; Pl.'s Aff. (Fratta) at 10; Pl.'s L.R. 56(a)2 to Stankye at 13 ¶ 43; Shakir Dep. Tr. at 30-31. The probate court hearing did not occur until February 25, 2009.18 See Fratta and Marotta L.R. 56(a)1 at 20 ¶ 88; Pl.'s L.R. 56(a)2 to Fratta at 41 ¶ 88. Therefore, as of February 6, 2009, Gandy was a joint legal guardian of A.S. with rights equal to those of Shakir.
Shakir argues to the contrary that Gandy's parental rights were diminished or eliminated because she had abandoned A.S. when she moved first to Kansas and then to California. See Mem. in Opp. to Fratta at 36, 43-44; Mem. in Opp. to Stankye at 21-23. To support this argument, he cites section 45a-610 of the Connecticut General Statutes, which authorizes removal of a parent as guardian for grounds including abandonment. See Mem. in Opp. to Fratta and Marotta at 36, 43; Conn. Gen. Stat. § 45a-610(2) (2017).19 However, Shakir's reliance on this statute is misplaced because the statute only authorizes removal of the parent as guardian by the probate court on a finding of clear and convincing evidence. See Conn. Gen. Stat. § 45a-610 ("If the Court of Probate finds that notice has been given or a waiver has been filed, ... it may remove a parent as guardian, if the court finds by clear and convincing evidence one of the following ...."). Absent a decision by the probate court, Shakir's arguments for abandonment do not alter Gandy's status as joint guardian, and therefore he has not raised a genuine issue of fact indicating that her parental rights were not equal to his.
Thus, because Gandy was a joint guardian of A.S., Stankye and Fratta did not deprive Shakir of custody by releasing A.S. to Gandy while he was still detained at the police station. Shakir could not have taken physical custody of A.S. at the time that he was detained, and the transfer did not alter his legal rights, as he had recourse in probate court to ascertain the division of custodial rights with Gandy. That he was later unsatisfied with the probate court's decision does not change the court's analysis of Stankye and Fratta's conduct. Indeed, had they refused to release A.S. to Gandy, Stankye and Fratta may have been liable for interfering with her right to custody. Accordingly, Stankye and Fratta are entitled to summary judgment regarding these actions because no genuine issue of fact exists as to whether they deprived Shakir of a protected liberty interest.
Alternatively, even if Stankye and Fratta did deprive Shakir of custody by releasing A.S. to Gandy, the law was not clearly established at the time that such conduct would constitute a deprivation of custody *194triggering Shakir's procedural due process rights. The court is not aware of-nor has Shakir pointed the court to-any Supreme Court or Second Circuit precedent that releasing a child to one parent, who has joint legal custody, deprives the other parent of his or her custodial rights. At most, the court has identified some district courts in the Ninth Circuit that have considered the question, but these courts do not clearly enunciate a rule, nor can they provide clearly established law for courts in this District for qualified immunity purposes. See Dees v. Cty. of San Diego, No. 14-CV-189-BEN (DHB),
5. Conspiracy
Finally, Shakir argues that Stankye and Fratta conspired with Gandy to deprive him of custody of A.S. by facilitating A.S.'s relocation to California with Gandy. See Mem. in Opp. to Fratta at 52-59; Mem. in Opp. to Stankye at 21. Among other things, Shakir cites as evidence of the conspiracy the fact that Stankye and Fratta were aware that Gandy planned to take A.S. to California after assuming custody of him. See Pl.'s Exhibits, Ex. Z at 2; Pl.'s Exhibits, Ex. J at 3, 5. Shakir also points to evidence that Stankye advised Fratta and Gandy to leave the police department before Browning arrived to avoid an altercation, as well as evidence that Fratta advised Gandy to call the police should Shakir attempt to retake custody of his son. See Pl.'s Exhibits, Ex. Z at 3-4; Fratta Aff. at 14 ¶¶ 66-67.
First, Stankye and Fratta argue that Shakir has failed to raise a genuine issue of material fact that his due process rights were violated, which precludes a claim of conspiracy. See Fratta Mem. in Supp. at 30; Stankye Mem. in Supp. at 22-23. Second, they argue that, even if his rights were violated, Shakir has failed to present evidence raising a genuine issue of material fact that the defendants reached an agreement to violate those rights. See Fratta Mem. in Supp. at 31-32; Stankye Mem. in Supp. at 24-25. Finally, Stankye and Fratta argue that they are entitled to qualified immunity because their actions were objectively reasonable under the circumstances. See Fratta Mem. in Supp. at 35-39; Stankye Mem. in Supp. at 25-28. The court agrees that Shakir has not presented evidence raising a genuine issue of material fact that his underlying due process rights were violated. Therefore, the court considers it unnecessary to decide whether he raises a genuine issue as to the existence of an agreement.
A conspiracy claim under section 1983 has three elements: "(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Ciambriello v. County of Nassau,
In this case, the court has already determined that Shakir was not deprived of a protected liberty interest by Stankye's removal of A.S. from his house to the police station, by Fratta's interview of A.S. at the police station, or by their release of A.S. into Gandy's custody. Therefore, the deprivation of custody that he alleges must hinge on Gandy's decision to relocate A.S. to California.
Shakir, however, has pointed the court to no case law indicating that one parent's decision to relocate a child deprives the other parent of a protected liberty interest, such that procedural due process requirements are triggered. In most such instances, the Fourteenth Amendment is not a relevant consideration because such actions are taken by the parent, a private actor, rather than by the state. Therefore, the court has little guidance from precedent in determining whether a child's relocation with the other parent is a deprivation requiring due process when state actors facilitate or assist with the relocation.
In the absence of guidance from Fourteenth Amendment cases, the court finds instructive the existence of state law restrictions on relocation that apply in some instances, but not others.20 For instance, when a court order has determined the division of custody between two parents and one parent seeks to relocate with the child, the Connecticut General Statutes require the relocating parent to bear the burden of justifying the relocation. See Conn. Gen. Stat. 46b-56d(a) (2017). Such statute, however, is limited to proceedings "before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on the existing parenting plan."
Neither of these rules applies in Shakir's case. Shakir acknowledges that, at all times relevant to this case, no formal court order existed governing his and Gandy's custodial relationship to A.S. See Shakir Dep. Tr. at 120. Thus, Gandy was not required, pursuant to section 46b-56d, to seek court approval before relocating with A.S. Additionally, the custody proceeding *196Shakir initiated on December 31, 2008, was in Derby Probate Court rather than a Connecticut Superior Court. See Shakir Aff. (Fratta) at 10; Pl.'s L.R. 56(a)2 to Stankye at 13 ¶ 43 Thus, the automatic order required by Connecticut Superior Court Rules did not apply, nor has Shakir introduced evidence that a similar order was issued by the Derby Probate Court in his case.21 Notably, then, where neither rule applies, state family law is silent on where a child should live or whether a parent can relocate. Nothing indicates that Gandy was not within her rights as A.S.'s parent and guardian to move him to California. Nor has Shakir alleged that Gandy refused to permit him to see or contact A.S since the relocation.22 Furthermore, Gandy's relocation with A.S. in no way terminated or altered Shakir's legal rights. Therefore, were he dissatisfied with the relocation, Shakir had legal recourse in state court to request a court order determining the division of custody and seeking A.S.'s return. See Conn. Gen. Stat. § 46b-56(a).
Shakir acknowledges that the Derby Probate Court later ruled unfavorably on his application for temporary or sole custody of A.S., thereby affirming Gandy's status as joint legal guardian. See Stankye L.R. 56(a)1 at 10 ¶¶ 43-44; Pl.'s L.R. 56(a)2 to Stankye at 13 ¶ 43; Shakir Depo Tr. at 30-31, 120. He claims, however, that the probate judge stated that A.S. should not have been removed from the state without a court order. See Pl.'s L.R. 56(a)2 to Stankye at 13 ¶ 43; Shakir Depo Tr. at 30-31. However, Shakir has not presented admissible evidence of this fact. In his deposition, he states, "my lawyer told me that he [the judge] said it was wrong for my son to be taken out of state without a court order." Shakir Dep. Tr. at 31; see also Pl.'s Aff. (Fratta) at 48 ¶ 64.g (also claiming that the statements were made by the judge to Shakir's lawyer, not to Shakir). This statement contains two levels of inadmissible hearsay, however, and therefore cannot be relied upon to create a genuine issue of material fact as to whether Gandy deprived Shakir of custody by removing A.S. from the state. See Fed. R. Evid. 802 ; Raskin v. Wyatt Co.,
Finally, the court notes that one court in the Ninth Circuit concluded that a state actor's support of one parent's removal of the children from the other parent was not a violation of the other parent's constitutional rights. See Dees v. Cty. of San Diego, No. 14-CV-189-BEN (DHB),
Additionally, given the lack of precedent in the case law, even if assisting Gandy was a deprivation of custody requiring due process, the law was not clearly established at the time. Consequently, in the alternative, Stankye and Fratta are entitled to summary judgment on the ground of qualified immunity as to Shakir's conspiracy claim.
In sum, Shakir has not raised a genuine issue of material fact that he was deprived of a protected liberty interest by any of the four actions discussed above. Accordingly, Stankye and Fratta's Motions for Summary Judgment are granted as to both Shakir's procedural due process claims and his federal conspiracy claim. Alternatively, the Motions are also granted on qualified immunity grounds.
C. Substantive Due Process (Fratta and Stankye)
In addition to his procedural due process claims, Shakir also contends that the same conduct violated his substantive due process rights. See Mem. in Opp. to Stankye at 30-32; Mem. in Opp. to Fratta at 45-50.
"[I]n order to make out a substantive due process claim, a plaintiff must show a fundamental right protected by the Constitution, a deprivation of that right, and 'arbitrary' and 'outrageous' state conduct that satisfies the 'shocks the conscience' standard." Walker v. City of Waterbury,
In this case, the court has already determined that the evidence introduced by Shakir does not create a genuine issue of fact as to whether Stankye and Fratta deprived Shakir of the custody, care, or management of A.S or conspired with Gandy to do so. Therefore, Stankye and Fratta are entitled to summary judgment on Shakir's substantive due process claims on the same grounds as his procedural due process claims. Additionally, in the alternative, they are also entitled to qualified immunity for the same reasons because *198the law was not clearly established as to whether their conduct constituted a deprivation of a protected liberty interest. Because summary judgment is appropriate on these two grounds, the court need not address the additional argument of Stankye and Fratta that their actions do not rise to the level of "shocking, arbitrary, and egregious" conduct prohibited by the Due Process Clause. See Fratta Mem. in Supp. at 27-30 (quoting Tenenbaum,
Accordingly, Stankye's and Fratta's Motions for Summary Judgment are granted as to Shakir's substantive due process claims.
D. Fourth Amendment Unlawful Seizure (Stankye)
The remaining claims and arguments pertain only to defendant Stankye. Shakir alleges that Stankye unlawfully entered and searched his residence and seized A.S. on February 6, 2009. See Am. Compl. at 18-19 ¶ 67. As to the unlawful seizure claim, Stankye argues that Shakir cannot assert his own Fourth Amendment claim based on A.S.'s seizure because Shakir lacks standing. See Stankye Mem. in Supp. at 20-21.
The Fourth Amendment protects individuals against unreasonable searches and seizures. See U.S. Const. amend. IV. It is well established that "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Alderman v. United States,
In response to this argument, Shakir does not dispute that he cannot assert a violation of his own Fourth Amendment rights on the basis of Stankye's seizure of A.S. Instead, he contends that the court should appoint him counsel and permit counsel to add his son as a plaintiff. See Mem. in Opp. to Stankye at 33-35. Although Shakir did at one point seek to add his son as a plaintiff, it was not until after the limitations period governing section 1983 actions had elapsed. See Mot. to Amend (Doc. No. 150). On March 31, 2016, the court denied his Motion to Amend because Shakir, as a pro se party and non-attorney, could not assert claims in order to vindicate the constitutional rights of his son. See Ruling Denying Motion to Amend (Doc. No. 175) at 4-5.
Although the court has subsequently appointed counsel for Shakir, see Order Appointing Pro Bono Counsel (Doc. No. 303), the court nonetheless declines to permit him to now amend the Amended Complaint to add A.S. as a plaintiff. At the time that Shakir first filed the Motion to Amend, the limitations period had already run on any claim that may have been asserted by A.S. regarding his seizure on February 6, 2009, which occurred six years *199before the Motion was filed. See Lounsbury v. Jeffries,
Shakir also attempts to assert two new unlawful seizure claims: first, that entering the residence forcefully with guns drawn and a battering ram is itself a seizure, and second, that Stankye seized Rasheed by threatening him and overcoming his will. See Mem. in Opp. to Stankye at 35-36. Neither claim was asserted in the Amended Complaint, however, so the court need not consider them now. See Thomas v. Egan,
Therefore, because Shakir does not have standing, Stankye's Motion is granted as to Shakir's Fourth Amendment unlawful seizure claim.
E. Fourth Amendment Unlawful Search (Stankye)
Shakir also contends that Stankye violated his Fourth Amendment rights by entering and searching his home without a warrant. See Am. Compl. at 18-19 ¶ 67. Stankye argues that Shakir failed to raise a genuine issue of material fact challenging Stankye's claim that exigent circumstances obviated the need for a search warrant. See Stankye Mem. in Supp. at 18-20. In the alternative, he argues that, even if the court concludes that a genuine issue of fact exists as to whether Shakir's Fourth Amendment rights were violated by the search, Stankye is protected by qualified immunity because the search was objectively reasonable. See id. at 25-28.
"The warrant requirement of the Fourth Amendment guarantees the fundamental right to be free from government intrusion into the privacy of one's home." United States v. MacDonald,
A district court must consider "the totality of the circumstances" with regard to the specific case in determining whether an emergency existed that justified the law enforcement officer's warrantless entry or search of a home. See Missouri v. McNeely,
It is undisputed that Stankye entered and searched Shakir's residence without a warrant on February 6, 2009. See Stankye L.R. 56(a)2 at 7 ¶ 30; Stankye Mem. in Supp. at 18; Pl.'s Exhibits, Ex. B2 at 2. Stankye contends that exigent circumstances justified the warrantless entry and search because he had a reasonable belief that A.S. would either be at risk of imminent harm or left without proper care and supervision after Shakir's arrest and removal. See Stankye Mem. in Supp. at 18-20. Stankye states the following in justifying his decision to enter the residence to search for A.S.: "Because police had been unable to confirm the whereabouts and well-being of plaintiff's son, the decision was made to demand entry into plaintiff's residence to search for him in light of: (a) the nature of the charges for which plaintiff was being arrested; (b) the fact that plaintiff's son had not yet undergone a forensic interview; (c) plaintiff's prior felony conviction for the sale of narcotics; (d) plaintiff's refusal to tell police where his son was; and (e) the fact that plaintiff would be unable to supervise or care for his son while in police custody." See Stankye L.R. 56(a)1 at 7-8 ¶ 30.
Some courts have recognized exigent circumstances where a child was left alone in the home without care or supervision. See United States v. Bradley,
Other courts have held that exigent circumstances require more than the mere fact that a child is at home unattended, such as some additional indication of danger. See Ford v. D.C., No. CV 13-1960 (RMC),
In this case, however, even assuming that the court agrees with the first set of cases that an unattended child in the residence rises to the level of exigency, summary judgment is nonetheless inappropriate because a genuine dispute exists as to whether Stankye had a reasonable belief that A.S. was left alone in the home at the time.
It is undisputed that, at some time after Stankye and the other officers knocked on his door, Shakir emerged from the residence and was placed under arrest. See Stankye L.R. 56(a)1 at 7 ¶ 27; Pl.'s L.R. 56(a)2 to Stankye at 7-8 ¶ 27; Pl.'s Aff. (Stankye) at 11 ¶ 44. It is also undisputed that Stankye asked Shakir at least twice about the whereabouts of A.S., and Shakir did not provide him with that information. See Stankye L.R. 56(a)1 at 7 ¶ 28; Pl.'s L.R. 56(a)2 to Stankye at 8 ¶ 28; Pl.'s Aff. (Stankye) at 11-12 ¶¶ 47-48. Both parties also agree that Stankye was informed earlier in the day that A.S. was not in school.23 See Stankye L.R. 56(a)1 at 5 ¶¶ 18-19; Pl.'s L.R. 56(a)2 to Stankye at 6 ¶¶ 18-19. However, the court concludes that a genuine issue of material fact exists as to whether Stankye had confirmed that A.S. was not with Browning prior to entering the residence.24
*202Stankye avers that, an hour prior to executing the arrest warrant on Shakir, he called Browning to inquire about A.S.'s whereabouts. See Stankye Aff. at 4 ¶¶ 16-17. According to Stankye, Browning informed him that A.S. was with her, so Stankye directed her to bring A.S. to Shakir's residence, where Stankye was already waiting, "so that police could ensure his [A.S.'s] safety and well-being."
Shakir admits that he has no knowledge that this call occurred or what was said over the call. See Pl.'s Aff. (Stankye) at 11 ¶ 41; Pl.'s L.R. 56(a)2 to Stankye at 7 ¶ 26. However, Stankye's own Affidavit creates a genuine issue of material fact as to whether Stankye knew that A.S. was not with Browning before he entered the home or whether he was merely unable to confirm that he was. The distinction is significant because there may have been other reasonable explanations for Browning's failure to bring A.S. to the residence other *203than that A.S. was not with her. Such issue is relevant because it bears on the reasonableness of Stankye's belief that A.S. was alone in the home.25
Reading the facts in the light most favorable to Shakir, then, a reasonable juror could determine that the circumstances did not rise to the level of exigency needed to justify a warrantless search.26 See Gary Friedrich Enters., LLC v. Marvel Characters, Inc.,
Nor can the court award Stankye summary judgment on the ground of qualified immunity. Stankye argues that, even if the court concludes that a genuine issue of fact exists as to whether there were exigent circumstances, he is entitled to qualified immunity because it was objectively reasonable for him to believe that such circumstances existed.27 See Stankye Mem. in Supp. at 27-28; Taravella,
However, the same issues of fact that preclude summary judgment on Stankye's argument for exigent circumstances also prevent the court from awarding summary judgment on the ground of qualified immunity. Where reasonableness depends on the facts of the situation, and one version of the disputed facts could demonstrate an objectively unreasonable search, summary judgment on qualified immunity is inappropriate. See Maye v. Vargas,
*204Therefore, if there are disputed facts such that one version of the facts could demonstrate unreasonable force by the police, it is not appropriate to find qualified immunity on a summary judgment motion." (citations omitted)); see also Southerland,
Therefore, Stankye's Motion for Summary Judgment is denied as to Shakir's Fourth Amendment claim of unreasonable search.
F. Eighth Amendment Conditions of Confinement (Stankye)
Shakir claims that Stankye subjected him to excessive force and unconstitutional conditions of confinement at the DPD in violation of his Eighth Amendment rights. See Am. Compl. at 14 ¶ 54. Stankye argues that the Eighth Amendment does not apply to Shakir's pre-conviction claims. See Stankye Mem. in Supp. at 21-22.
The Eighth Amendment protection against cruel and unusual punishments applies only after conviction. See Whitley v. Albers,
Although Shakir incorrectly raises his claims under the Eighth Amendment, the court nevertheless construes Shakir's claims liberally as having been asserted under the correct legal standard.28 A claim of excessive force occurring during an arrest is analyzed under the Fourth Amendment, see Graham v. Connor,
Courts in this Circuit, however, have analyzed claims of excessive force occurring after arrest but before arraignment *205under the Fourth Amendment standard. See Powell v. Gardner,
In Shakir's case, a genuine issue of material fact exists as to whether arraignment had occurred at the time that the alleged constitutional violation occurred, when Shakir was made to strip and the air conditioner was turned on in the holding cell. Neither party's Statement of Facts or Affidavit addresses when exactly *206Shakir's arraignment occurred. Shakir's Affidavit avers that Stankye took part in requesting a bond of $150,000. See Pl.'s Aff. (Stankye) at 14 ¶ 66. Shakir situates this fact after the paragraph in which he states that Stankye made him strip and before the paragraph in which he states that Stankye turned on the air conditioning. See
Based on the facts in the record, then, the court cannot determine whether the alleged conduct occurred before or after Shakir's arraignment. Because the court must "construe the evidence in the light most favorable to the non-moving party and ... draw all reasonable inferences in its favor," Gary Friedrich Enters.,
A second issue exists, however, as to whether the type of claim should affect the legal standard appropriately applied. Shakir's claim is more accurately described as alleging unconstitutional conditions of confinement while he was held at the DPD, rather than as alleging use of excessive force by Stankye. The crux of his claim is that he was stripped of his clothing and left in the holding cell, which Stankye had caused to become freezing cold.31 The Circuit, however, has not opined on whether the language in Powell extends to pre-arraignment claims challenging conditions of confinement in addition to excessive force claims. In the somewhat related context of claims asserting denial of medical care, district courts in this Circuit are split. Compare Goodwin v. Kennedy, No. CV 13-1774 SJF AKT,
Courts applying the Fourth Amendment standard to denial of medical care have reasoned that the type of claim should not be determinative because the rationale for applying the Fourth Amendment-that police should be held to an objective standard of reasonableness before a judicial officer has determined the defendant's custody status-holds true regardless of the type of claim. See Freece v. Young,
Courts applying the Fourteenth Amendment standard to pre-arraignment denial of medical treatment claims have based their contrary determination on Second Circuit precedents applying the Fourteenth Amendment's Due Process Clause to denial of medical care claims for pretrial arrestees. See Goodwin,
To establish a Fourth Amendment claim, the plaintiff must show that the conduct of the officer was "objectively unreasonable." Graham,
The Amended Complaint includes a conclusory allegation that Stankye used excessive force against Shakir. See Am. Compl. at 14 ¶ 54. In response to the Motion for Summary Judgment, however, Shakir does not argue that Stankye used force against him or physically injured him in any way. See Mem. in Opp. to Stankye at 37-39. Rather, at his deposition, Shakir conceded that Stankye did not subject him to physical force in connection with or after his arrest on February 6, 2009. See Shakir Dep. Tr. at 101. Instead, he argues that his rights were violated by Stankye's conduct during his detention at the DPD after his arrest. See Mem. in Opp. to Stankye at 37-39. Shakir alleges that Stankye ordered him to strip down to one layer of clothing, taunted him, placed him in a holding cell, and turned up the air conditioning. See Am. Compl. at 13 ¶ 52, at 15 ¶ 56; Shakir Dep. Tr. at 89-90; Pl.'s Aff. (Stankye) at 14-15 ¶¶ 63-68. Shakir alleges that he became sick as a result of the cold temperatures in his cell. See Am. Compl. at 13 ¶ 52., Pl.'s Aff. (Stankye) at 14 ¶ 67.
Shakir has presented sufficient admissible evidence to raise a genuine issue of material fact as to whether Stankye made him strip down to one layer of clothing, but not as to whether Stankye turned on the air conditioning. Stankye avers in his Affidavit that he did not "transport plaintiff from his residence to the DPD," "play any role in his booking and processing on February 6, 2009," or "have any contact with plaintiff at the DPD on February 6, 2009." See Stankye Aff. at 6 ¶¶ 28-29. Shakir offers evidence in part to the contrary in his own Affidavit. He states that, after being taken to the holding area at the DPD, Stankye made him strip of his clothing down to his underwear and took his clothing away from him. See Pl.'s Aff. (Stankye) at 14 ¶¶ 63, 65. Shakir then avers that he was left in his cell without his clothes when the air conditioning was turned on. See Pl.'s Aff. (Stankye) at 14 ¶ 67; Shakir Dep. Tr. at 86. Thus, Shakir's Affidavit and deposition transcript are sufficient to raise a genuine issue as to whether Stankye caused him to strip down to his underwear and left him in the holding cell without his clothing.
As to Stankye's responsibility for causing the cold temperature in Shakir's cell, however, the court concludes that there is no genuine factual dispute. Stankye states in his Affidavit that he did not adjust the air-conditioning on that date, did not know how to do so, did not order anyone else to do so, and did not have any knowledge that anyone had done so. See Stankye Aff. at 6 ¶ 30. Shakir presents no admissible evidence that contradicts these facts. Rather, his deposition testimony asserts merely that he knew the air conditioner *209had been turned on because he could feel the change in temperature and hear the sound of the air conditioner working. See Shakir Dep. Tr. at 90-91. He testified that he did not see Stankye or anyone else actually turn on the air conditioner. See id. at 90. In his Affidavit, Shakir claims to know that Stankye turned on the air conditioner, see Pl.'s Aff. (Stankye) at 14 ¶ 67, but he lacks personal knowledge to testify to that fact. Instead, his deposition testimony reveals that his basis for that alleged knowledge is merely an inference drawn from Stankye's prior conduct toward him, which Shakir's describes as "vulgar." See Shakir Dep. Tr. at 89-90. He similarly attempts to reason from the fact that Stankye gave orders to the officers at his residence earlier that day that Stankye was also in charge of his cell conditions at the DPD. See Pl.'s L.R. 56(a)1 to Stankye at 12 ¶ 39.
The court concludes that Shakir's inference is unsupported because other officers were also present at the station and could have been responsible for the change in temperature. See Pl.'s Aff. (Stankye) at 14-15 ¶ 68; Mem. in Opp. to Stankye at 38. Nor does the court believe that a detective's authority over the execution of an arrest warrant necessarily translates to authority over the conditions of holding cells at the police station. Combining this with Shakir's lack of personal knowledge, the court concludes that Shakir has not presented sufficient evidence to raise a genuine issue of fact as to whether Stankye was responsible for air conditioning in Shakir's cell. Accordingly, the court considers Shakir's Fourth Amendment claim solely on his allegation that Stankye required him to strip and left him in his cell without clothing in the winter time.
Courts in this Circuit have held, under the Eighth or Fourteenth Amendment standard, that requiring a detainee to strip and endure a "prolonged period" of cold is an unconstitutional condition of confinement, but that temporary deprivation of clothing and exposure to cold is not. Compare Wright v. McMann,
However, the Fourth Amendment standard of objective reasonableness differs from the Eighth and Fourteenth Amendment standards. The Fourth Amendment inquiry is objective and does not look to the officer's mental state. See Graham,
In this case, construing the facts in the light most favorable to Shakir, a reasonable jury could conclude that Stankye's conduct toward Shakir created conditions of confinement that were objectively unreasonable.34 As noted previously, the Fourth Amendment requires balancing the "nature and quality of the intrusion" with the "countervailing governmental interests at stake." See Graham,
Therefore, considering Shakir's claim under the Fourth Amendment, the court concludes that Stankye has not carried his burden of establishing the absence of a genuine issue of material fact as to whether his conduct created unconstitutional conditions of confinement. His Motion for Summary Judgment is denied on this claim.
G. Declaratory Relief (Stankye)
In addition to monetary damages, Shakir seeks a declaratory judgment that the defendants engaged in unconstitutional conduct in connection with Shakir's arrest and A.S.'s seizure on February 6, 2009. See Am. Compl. at 21 ¶ 80. The court has already dismissed the request for declaratory relief against Marotta and Fratta. See Ruling on Marotta and Fratta's Mot. to Dismiss (Doc. No. 177) at 14-16. Stankye now argues that he should be awarded summary judgment on the remaining request for a declaration against him in his official capacity because such relief is barred by the Eleventh Amendment. See Stankye Mem. in Supp. at 28-29.
The Eleventh Amendment prohibits suit against a state as a defendant in federal court, absent consent of the state or abrogation by Congress. See Pennhurst State Sch. & Hosp. v. Halderman,
Shakir's request for a declaration that Stankye violated his Fourth, Eighth, and Fourteenth Amendment rights in 2009, cannot be properly characterized as "prospective" because Shakir does not indicate how such relief would remedy a continuing constitutional violation or prevent the threat of a future violation. All of the conduct relevant to the violations occurred on February 6, 2009, during the search and arrest at his residence or shortly thereafter at the DPD. Thus, Shakir's request for declaratory relief does not *212satisfy the exception to the Eleventh Amendment immunity set forth in Ex Parte Young. Absent any request for prospective relief to remedy ongoing violations of federal law, a declaration that Stankye violated Shakir's federal constitutional rights in the past is barred by the Eleventh Amendment. See Green,
Moreover, in addition to the Eleventh Amendment bar to his claim for declaratory relief, Shakir lacks Article III standing to pursue a declaratory judgment against Stankye. Though this issue was not briefed by Stankye, federal courts have an "independent obligation to assure that standing exists." See Summers v. Earth Island Inst.,
Here, where Shakir seeks a declaratory judgment, he "cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he ... will be injured in the future." Dashawn E. by Charlotte E. v. Safir,
Shakir argues that declaratory relief is appropriate because the alleged violations of his rights contributed to his conviction and sentence, which he is currently serving. See Mem. in Opp. to Stankye at 53. However, "the question is not whether [the plaintiff] still feels the effects of a past constitutional violation, but rather whether he is likely to suffer a similar injury-a similar violation of his constitutional rights-in the future." See Stevens,
In sum, in the absence of any material facts in dispute regarding the request for declaratory relief, Stankye is entitled to summary judgment on this request as a matter of law both because Shakir's request for declaratory judgment is barred by the Eleventh Amendment and because he lacks standing to bring the claim. Stankye's Motion for Summary Judgment is granted as to Shakir's request for a declaration that Stankye violated his constitutional rights.
VI. CONCLUSION
For the foregoing reasons, Fratta and Marotta's Motion for Summary Judgment is GRANTED . Stankye's Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART . Specifically, it is granted with respect to Shakir's federal conspiracy claim, his Fourteenth Amendment procedural and substantive due process claims, his Fourth Amendment unlawful seizure claim, his Eighth Amendment claim, and his claim for declaratory relief. It is denied with respect to his Fourth Amendment unlawful search claim and his claim for unconstitutional conditions of confinement, which the court interprets liberally as raised under the Fourth Amendment.
SO ORDERED.
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