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DOCKET NO. (X06) UWY-CV21-5028294-S
NANCY BURTON : SUPERIOR COURT
Plaintiff :
: COMPLEX LITIGATION
v. : DOCKET
: AT WATERBURY
DAVID PHILIP MASON, Et Al. :
Defendants : FEBRUARY 25, 2021
MEMORANDUM IN SUPPORT OF MOTION TO STRIKE
Defendants, State of Connecticut Department of Agriculture (“Department”), Bryan P.
Hurlburt, Commissioner of Agriculture (“Commissioner”), and Charles DellaRocco, State
Animal Control Officer (referred to collectively as “State Defendants”), pursuant to Practice
Book § 10-39, file the present Memorandum in Support of their Motion to Strike. Plaintiff has
insufficiently pled her count based on violations of 42 U.S.C. § 1983 (Count Seven). The
operative complaint is Plaintiff’s Fourth Amended Complaint (“Complaint”). 1 (Entry No.
307.00.) Plaintiff’s claim for false arrest (Count Eight) fails to allege facts that could support a
claim for which relief may be granted and is therefore legally insufficient. Plaintiff’s Count
Eight must be stricken as it is completely unsupported by the Complaint.
I. FACTS
The Redding Police Department has received numerous complaints related to a herd of
goats living on Plaintiff’s property and roaming the neighborhood. The Department of
1
Despite an express directive by the Court that this revision not include additional factual allegations,
Plaintiff discretely inserted two paragraphs related to Officer DellaRocco. (Compl. ¶¶ 76, 77.)
Additionally, Plaintiff inserted an entire count, Count Eight – False Arrest, against State Defendants that
was not previously included in prior iterations as applying to them.
1
Agriculture has also received a number of complaints about the condition of the goats on
Plaintiff’s property and the lack of care they were being given. In September 2017, the Town of
Redding Zoning Commission issued a cease and desist order to address Plaintiff’s violation of
the town’s zoning regulations related to livestock. (Compl. ¶ 24.) As a result of a motor vehicle
incident involving one of Plaintiff’s roaming goats, Plaintiff was arrested. (Compl. ¶ 50, 51.)
On October 7, 2020, the Department of Agriculture, State Animal Control unit received a
complaint about injured and/or neglected goats on Plaintiff’s property. After a months-long
investigation, including a multiday surveillance operation, Officer DellaRocco, in consultation
with the Chief State Animal Control Officer, determined there was probable cause to believe the
crime of animal cruelty was being committed, as defined in Conn. Gen. Stat. § 53-247. On
March 9, 2021, Judge Robert A. D’Andrea approved a search and seizure warrant application
sought by Officer DellaRocco. (Compl. ¶ 74, 77.) Pursuant to Conn. Gen. Stat. § 22-329a(b),
the Department of Agriculture, State Animal Control Unit, with the assistance of the Redding
Police Department, executed the search and seizure warrant on March 10, 2021. (Compl. ¶ 82.)
The execution of the search and seizure warrant resulted in the discovery of dozens of
dead goats scattered across Plaintiff’s property in tote bins, garbage bags and wooden crates. A
recently deceased goat was found in one of the barns; partially eaten by rodents. A number of
goats were observed to be underweight and malnourished. Many goats had untrimmed hooves
that were excessively long and impacted the mobility of the animals. Some goats were limping
and at least one goat was unable to walk on its own. Sixty-five goats were seized pursuant to the
execution of the search and seizure warrant.
The Department of Agriculture, acting through its Chief State Animal Control Officer,
filed a verified petition seeking permanent custody and ownership over the sixty-five goats.
2
After two days of evidentiary hearing, Judge Susan Cobb entered a temporary order of custody to
the State of Connecticut Department of Agriculture. In entering the temporary order, the Court
made findings of fact that the Plaintiff neglected and treated her goats cruelly in a number of
ways. The Court found that Plaintiff failed to provide her goats adequate shelter, food, water and
hoof trimming. That civil action is ongoing and is presently pending in the Waterbury Judicial
District on the Complex Litigation Docket. (State of Connecticut, ex rel, Jeremiah Dunn, Chief
State Animal Control Officer v. Sixty-Five Goats and Nancy Burton, UWY-CV21-6064254-S.)
Subsequent to the search and seizure, Plaintiff has also been charged with sixty-five counts of
criminal animal cruelty related to the treatment of the goats on her property. That criminal
matter is also pending and is in pre-trial status.
On April 21, 2021, Plaintiff filed the present action against a number of parties under
various theories. Plaintiff’s Complaint is riddled with conclusory allegations,
misrepresentations, and deceptive recitations of fact. Upon information and belief, the present
action is retaliatory in nature and is intended to seek retribution rather than relief for any
legitimate claims.
II. STANDARD
“A motion to strike challenges the legal sufficiency of a pleading, and, consequently,
requires no factual findings by the trial court.” Sullivan v. Lake Compounce Theme Park, Inc.,
277 Conn. 113, 117 (2006), quoting Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154
(2005). The purpose of a motion to strike is to contest the legal sufficiency of the allegations of
the complaint. Id. In ruling on a motion to strike, the court is limited to the facts alleged in the
complaint. Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). “A complaint
must fairly put the defendant on notice of the claims against him . . . The purpose of the
3
complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent
surprise." (Internal quotations omitted) Fingelly v. Town of Fairfield, Docket No.
FBTCV136037513, 2014 Conn. Super. LEXIS 2957, at *5 (Super. Nov. 24, 2014) (motion to
strike granted where plaintiff failed to explain the manner in which the Fourteenth Amendment is
relevant to her factual claims in order to provide the defendants with adequate notice of the
claims against them), quoting Gilbert v. Middlesex Hospital, 58 Conn.App. 731, 734 (2000). “A
motion to strike is properly granted if the complaint alleges mere conclusions of law that are
unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480,
498, 815 A.2d 1188 (2003)
III. ARGUMENT
A. PLAINTIFF HAS FAILED TO STATE A CLAIM FOR CONSTITUTIONAL INJURY
BY THE COMMISSIONER OF AGRICULTURE, BRYAN P. HURLBURT
Plaintiff’s Count Seven alleges a claim pursuant to 42 U.S.C. § 1983 for violations of
Plaintiff’s rights under the First, Fourth and Fourteenth Amendments to the United States
Constitution. That provision creates a private right of action against any person who, acting
under color of state law, causes another person to be subjected to the deprivation of their rights
under the Constitution or federal law. “To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988). The Commissioner is an agent of the State of Connecticut whose
official acts are taken under the color of state law. Therefore, the preliminary inquiry for
purposes of Plaintiff’s claim is to determine what official actions the Commissioner took that
caused an alleged deprivation of her constitutional rights.
4
After thorough review of the Complaint, it is still unclear what actions, if any, were taken
by Commissioner Hurlburt or what injury was suffered thereunder. Plaintiff alleges that the
“defendants, some or all of them,” caused her constitutional injury. (Compl. at 18.) 2 To begin,
such an ambiguous identification of the parties cannot sustain a claim under § 1983 because it
does not specifically indicate that the Commissioner caused her injury. Even if it could, the
allegations offered in the Complaint do not explain what actions would have implicated the
Commissioner. Plaintiff alleges that, on December 2, 2020, she provided the Commissioner with
a complaint demanding an investigation into the actions of some of the co-defendants. (Compl. ¶
55.) Plaintiff concedes that an investigation was opened. (Compl. ¶ 57.) Plaintiff further
acknowledges that Officer DellaRocco testified that the complaint to the Commissioner was
“unfounded.” (Compl. ¶ 62.) Plaintiff goes on to allege that after asking the Commissioner to
reopen the investigation, she was informed that the investigation was closed. (Compl. ¶¶ 66, 69.)
The Complaint offers no other factual allegations attributable to the Commissioner. It is difficult
to see how these allegations give rise to a constitutional injury cognizable under § 1983. “In
order to state a cause of action under section 1983, the plaintiff must allege an abuse of
governmental power which is sufficiently egregious as to be constitutionally tortious.”
McLaughlin v. City of Shelton, CV92 04 03 31, 1995 Conn. Super. LEXIS 1548, at *3 (Super.
May 23, 1995). Nothing in Plaintiff’s Complaint indicates any action by the Commissioner that
resulted in a constitutional deprivation at all, and Plaintiff has failed to state a claim thereby.
Also, if Plaintiff’s claim rests on the Commissioner’s status as the head of the
Department and not for individual acts undertaken by him, this claim necessarily fails. Plaintiff
2
In Plaintiff’s Complaint, the additional allegations added and the inaccurate formatting makes it
impossible to identify many allegations by paragraph. Those allegations will be referenced by page
number.
5
alleges that Commissioner Hurlburt is “responsible for the agency’s lawful discharge of its
statutory duties and the lawful conduct of the [DoAG’s] staff.” (Compl. ¶ 41.) This, without
more, does not invoke a claim for relief under § 1983. It is well established that the doctrine of
respondeat superior cannot form a basis for a claim under § 1983. Blyden v. Mancusi, 186 F.3d
252, 264 (2d Cir. 1999). This is because the alleged conduct must be specific, and the state actor
must be directly involved with the constitutional violation. See Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994) ("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”).
Simply put, “liability under § 1983 turns on a defendant's personal involvement in the alleged
constitutional deprivations.” Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Even if
Plaintiff could allege some constitutional injury at the hands of the staff or agents of the
Department, which she does not, it could not form a basis to a claim under § 1983 against the
Commissioner. “A plaintiff must plead that each Government-official defendant, through the
official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009) (“each Government official, his or her title notwithstanding, is only liable for his or
her own misconduct”). Because Plaintiff’s allegations directed at Commissioner Hurlburt do not
identify any specific personal responsibility for any alleged injury, Count Seven, as applied to
him, must be stricken. Sienkiewicz v. Ragalia, Docket No. CV030401770S, 2008 Conn. Super.
LEXIS 1090, at *14-15 (Super. May 5, 2008), citing Arroyo v. Schaefer, 548 F.2d 47, 51 (2nd
Cir. 1977).
6
B. PLAINTIFF HAS FAILED TO STATE A CLAIM FOR CONSTITUTIONAL INJURY
BY OFFICER CHARLES DELLAROCCO
a. ELEMENTS OF A CLAIM UNDER § 1983
As noted above, Plaintiff’s Count Seven alleges a claim pursuant to 42 U.S.C. § 1983 for
violations of Plaintiff’s rights under the First, Fourth and Fourteenth Amendments to the United
States Constitution. Plaintiff alleges that “defendants, some or all of them,” have caused her
constitutional injury in violation of the first, fourth and fourteenth amendments of the United
State Constitution. (Compl. at 18.) Similar to the Commissioner, this count also does not
directly implicate Officer DellaRocco by name, and it is unclear as to whether this count is
directed to him at all. As a result, Plaintiff cannot not sustain a claim against him pursuant to 42
U.S.C. § 1983. Addressing claims against unspecified defendants deprives all defendants of
notice of alleged wrongdoing and cannot sustain a claim pursuant to § 1983. Faced with similar
ambiguous pleadings, courts in other jurisdictions have determined that a claim under § 1983
cannot lie where the defendants are not specifically identified. 3 See e.g., Liera v. City of
Chicago, Docket No. 13 C 9032, 2014 U.S. Dist. LEXIS 190571, at *9 (N.D. Ill. Aug. 5, 2014);
Cox v. Marchant, Docket No. 2:11-2811-PMD-BHH, 2011 U.S. Dist. LEXIS 138351, at *6
(D.S.C. Oct. 31, 2011) (“[i]t is well settled that federal courts performing their duties of
construing pro se pleadings are not required to be "mind readers" or "advocates" for pro se
litigants”); Roberts v. Prince George's County, 157 F. Supp. 2d 607, 609 (D. Md. 2001); Nelson
v. City of Los Angeles, Docket No. CV 11-5407-PSG (JPR), 2015 U.S. Dist. LEXIS 56274, at
3
Furthermore, unlike scenarios in which a plaintiff may not be able to identify the individual
actors, for example where multiple officers may take some action in concert, Plaintiff has offered
no explanation as to why she cannot identify the actors that allegedly deprived her of
constitutional rights, in the present case.
7
*54-55 (C.D. Cal. Feb. 18, 2015) (Fifth and Fourteenth Amendment claims). Because Plaintiff
has failed to identify DellaRocco, in this count, it cannot be applicable to him as he was not
fairly put on notice, Fingelly v. Town of Fairfield, Docket No. FBTCV136037513, 2014 Conn.
Super. LEXIS 2957, at *5 (Super. Nov. 24, 2014), and it necessarily lacks the showing of
personal involvement under this count. Jamison v. Fischer, 2012 U.S. Dist. LEXIS 144307, at
*7 (S.D.N.Y. Sep. 27, 2012); Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). For this
reason alone, Plaintiff’s Count Seven fails to state a claim on its face.
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, supra, 487 U.S. 48.
"These two elements denote two separate areas of inquiry: the plaintiff must prove a
constitutional or statutory violation and that violation must have been committed by the
defendant acting under color of law." Wilson v. Hryniewicz, 38 Conn. App. 715, 720 (1995).
Officer DellaRocco is a State Animal Control Officer and is being sued for official acts taken in
furtherance of his duties. (Compl. ¶ 42.) The initial inquiry necessarily is whether Plaintiff has
properly alleged a constitutional violation.
Plaintiff alleges that Officer DellaRocco was assigned to and investigated a complaint
requested by Plaintiff into the conduct of her neighbors. (Compl. ¶¶ 57, 59.) Plaintiff alleges that
Officer DellaRocco did not update her on the status of his investigation. (Compl. ¶ 61.) Plaintiff
further alleges that Officer DellaRocco stated that the phone number Plaintiff provided to him
could not be traced to a co-defendant. (Compl. ¶ 65.) Plaintiff alleges that Officer DellaRocco
conducted surveillance of her property from an adjacent property with the landowner’s
permission. (Compl. ¶ 70.) Without identifying any false statements, Plaintiff alleges that
8
Officer DellaRocco presented an affidavit in support of a search warrant that contained “false
statements.” (Compl. ¶ 75.) Plaintiff concedes that a search and seizure warrant was issued by a
judge of the Superior Court “to authorize the immediate seizure of 65 goats” and “authorize a
search of plaintiff’s home.” (Compl. ¶¶ 79, 81.) Plaintiff goes on to make a number of false,
misleading and unsupported allegations related to her claim for animal cruelty and a baseless
allegation of theft of still unknown property. (Compl. ¶¶ 84, 85.) Given that Plaintiff concedes
that the search of her property and seizure of the goats were pursuant to a judicially approved
search warrant, it only stands to reason that Plaintiff’s allegations of constitutional deprivation
can only stand if she challenges the validity of the search and seizure warrant application and
Officer DellaRocco’s involvement therein. 4
To begin, there is a presumption of validity with respect to the affidavits supporting a
search warrant. Franks v. Delaware, 438 U.S. 154, 171 (1978). It is well settled law throughout
the United States that a party wishing to challenge the validity of a search warrant must make “a
substantial preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant's request.” (Emphasis added.) Id. at 155-56. In
the civil context, a plaintiff must make the same substantial showing, as required by Franks v.
Delaware, in order to maintain a claim under § 1983, stemming from an allegedly unlawful
search warrant. Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994). The inquiry is two-part: the
plaintiff must show that the affiant knowingly and deliberately, or with reckless disregard to the
4
Because Plaintiff’s Count Seven does not specifically identify any of the relevant paragraphs of
her Complaint, it is difficult to ascertain which alleged facts are related to a constitutional injury
that gives rise to this count or what Plaintiff’s theory of this claim is.
9
truth, made false statements in the application for the warrant and demonstrate that said
statements were necessary for a finding of probable cause. Golino v. New Haven, 950 F.2d 864,
870 (2d Cir. 1991). The burden is on Plaintiff to meet both prongs. Willocks v. Dodenhoff, 110
F.R.D. 652, 657 (D. Conn. 1986) (motion for summary judgment context). Here, Plaintiff fails
to make any showing, let alone a substantial showing, in support of either prong.
Under the first prong of Franks v. Delaware, Plaintiff must make a showing that the
affiant (Officer DellaRocco) knowingly and deliberately, or with reckless disregard to the truth,
made false statements. While Plaintiff alleges that the affidavit was “replete with knowingly
false statements”, (Compl. ¶ 75), she “does not support these conclusory statements with any
facts which would give rise to the inference that any misstatements were made, or that any such
misstatements were knowingly made.” Soyke v. Rounds, 92-CV-856, 1993 U.S. Dist. LEXIS
3130, at *5-6 (N.D.N.Y. Mar. 8, 1993) (denying motion for reconsideration and granting motions
to dismiss). The burden is on Plaintiff to provide sufficient information showing that Officer
DellaRocco intentionally provided inaccurate information to the court, D’Andrea, J., in the
affidavit in support of the search warrant. See United States v. Worjloh, 546 F.3d 104, 109 (2d
Cir. 2008). “The error must be shown by a preponderance of the evidence to have been
knowingly and intentionally false or made with reckless disregard for the truth …. Allegations of
negligence or innocent mistake are insufficient to require a reevaluation of the affidavit.”
(Internal quotations omitted.) State v. Stepney, 191 Conn. 233, 239, 464 A.2d 758 (1983),
quoting Franks v. Delaware, supra, 438 U.S. 155. Also, Plaintiff’s allegation that Officer
DellaRocco relied “on the statements of others who possess malicious motives and lack
credibility” is insufficient to meet her burden. (Compl. ¶ 75.) Even if Plaintiff pointed to
specific errors of fact that were provided to Officer DellaRocco by various informants, which she
10
does not, it would not provide evidence of “deliberate falsity or reckless disregard” required for a
showing under Franks. Willocks v. Dodenhoff, supra, 110 F.R.D. 658. (factual errors in
statement of non-governmental informant, recorded within the application, cannot support a
claim of deliberate misstatements on the part of the affiant). Because Plaintiff has failed to
articulate what alleged false statements are contained in the affidavit, she has failed to make the
substantial showing required to challenge the lawfulness of the search and seizure warrant.
Plaintiff’s conclusory allegations of false statements “must be accompanied by an offer of
proof.” (Internal quotations omitted.) State v. Simmons, 10 Conn. App. 561, 563 (1987), quoting
Franks v. Delaware, supra, 438 U.S. 171.
Under the second prong of Franks, Plaintiff must also make a showing that the false
statements were necessary to a showing of probable cause. Aside from failing to identify what
false statements are contained in the affidavit, there is nothing in Plaintiff’s complaint to indicate
that Judge D’Andrea relied on false statements in his finding of probable cause to issue the
warrant. 5 If Plaintiff had sufficiently identified a false statement and it was set aside, her
challenge to the warrant would still fail because of the substantial number of unrefuted
allegations in the affidavit that could still establish probable cause. See State v. Bergin, 214
Conn. 657, 666 (1990). Judge D’Andrea’s role in issuing the warrant was “to make a practical,
5
The finding of probable cause by Judge D’Andrea was also vindicated, although with far more
information, by the finding of reasonable cause that the goats should be placed in the State’s care
to protect them from Plaintiff’s cruel and neglectful treatment. State ex rel. Dunn v. Sixty-Five
Goats, Docket No. CV216139702S, 2021 Conn. Super. LEXIS 483, at *5 (Super. Apr. 9, 2021).
The conditions described in the affidavit were in fact confirmed and the evidence obtained
pursuant to the search warrant was sufficient for Judge Cobb to find reasonable cause to believe
the goats needed to be placed in the State’s care for their protection. In certain circumstances, the
finding of reasonable cause and probable cause are synonymous. State ex rel. Dunn v. Sixty-Five
Goats, Docket No. HHDCV216139702, 2020 Conn. Super. LEXIS 2659, at *11-12 (Super. May
17, 2020), citing Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 549,
636 A.2d 1360 (1994).
11
common-sense decision whether, given all the circumstances set forth in the affidavit before him,
including the "veracity" and "basis of knowledge" of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a crime will be found in a particular
place.” State v. Parowski, Docket Nos. AANCR110145454T, AANCR110145455T, 2012 Conn.
Super. LEXIS 754, at *28-29 (Super. Mar. 16, 2012). There was ample information contained in
the affidavit for Judge D’Anrea to make this decision. Even if Plaintiff could point to a Frank’s
violation, which she does not, the substantial remaining content of the affidavit, would support a
finding of probable cause. See Id. at *29.
In addition to meeting both elements of a claim under § 1983, Plaintiff must also properly
allege the elements of the underlying constitutional injury. Plaintiff must also demonstrate that
she has stated a claim under the relevant law related to each specific constitutional injury,
because § 1983 is not itself a source of substantive rights, but merely provides a method for
vindicating federal rights elsewhere conferred. Albright v. Oliver, 510 U.S. 266, 271 (1994);
Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004); Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979).
b. PLAINTIFF HAS FAILED TO STATE A CLAIM UNDER THE FIRST
AMENDMENT TO THE UNITED STATES CONSTITUTION
As part of her Count Seven, Plaintiff alleges that defendants have acted under color of
state law to deprive her of the rights and protections guaranteed by the United States
Constitution, including the First Amendment. (Compl. at 18.) Although this count, and the
complaint in general, does not properly explain the theory behind this claim, it appears that
Plaintiff is suggesting that State Defendants obtained and executed the search and seizure
12
warrant in retaliation for her religious faith, her exercise of free speech, right to assemble or her
petitioning the government for a redress of grievances. US Const. Amend. I. The only plausible
theory is one sounding in free speech. “As a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory actions for engaging in
protected speech.” (Internal quotations omitted.) Nieves v. Bartlett, 139 S. Ct. 1715, 1722
(2019), quoting Hartman v. Moore, 547 U. S. 250, 256 (2006). To prevail on a retaliatory free
speech claim under § 1983 Plaintiff “must prove: (1) he has an interest protected by the First
Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of
that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment
right.” Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (appeal from summary
judgment).
In order to state a claim for First Amendment retaliation under § 1983, Plaintiff must first
allege speech that is protected by the First Amendment. Williams v. Town of Greenburgh, 535
F.3d 71, 76 (2d Cir. 2008). Because Plaintiff fails to allege what speech she was engaged in, it is
impossible to determine whether it is protected by the First Amendment. Plaintiff claims
defendants aim to “divert her from her important public-interest endeavors” and retaliate against
her “for her bold and courageous public-interest endeavors in which she has spoken truth to
power.” (Compl. ¶¶ 87, 88.) Plaintiff doesn’t specifically identify what these important public-
interest endeavors are, however. Because Plaintiff fails to allege with any clarity what speech
she made, her claim must fail as it has not been properly pleaded.
13
If Plaintiff’s speech is protected 6 this claim still must fail as she has not alleged facts that
support a finding of a retaliatory motive. “If an official takes adverse action against someone
based on that forbidden motive, and non-retaliatory grounds are in fact insufficient to provoke
the adverse consequences, the injured person may generally seek relief by bringing a First
Amendment claim.” (Internal quotes omitted.) Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019).
Simply put, Plaintiff must establish a causal connection between the government’s action and the
exercise of the plaintiff’s First Amendment rights, and there must not be an alternate basis for the
government action. “[I]t must be a “but-for” cause, meaning that the adverse action against the
plaintiff would not have been taken absent the retaliatory motive.” Id., citing Hartman v. Moore,
547 U.S. 250, 260 (2006). Because Officer DellaRocco acted in good-faith and because Plaintiff
fails to provide any factual allegations that Officer DellaRocco was aware of any alleged
protected speech, she cannot maintain a retaliation claim against him. Lozman v. City of Riviera
Beach, 138 S. Ct. 1945, 1954 (2018). The goats would have been seized, given their cruel and
neglectful treatment, regardless of the protected speech she believes she is engaged in. The
claim of retaliation is negated if the government action (seizure of the goats) would have been
taken regardless of an alleged retaliatory motive. “An individual does not have a right under the
First Amendment to be free from a criminal prosecution supported by probable cause, even if
that prosecution is in reality an unsuccessful attempt to deter or silence criticism of the
government.” Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012).
6
State Defendants concede that the bar for protected speech is lower, given that Plaintiff is not a
government employee, and the threshold showing in employment context cases is different. See
Williams v. Town of Greenburgh, 535 F.3d 71, 77 (2d Cir. 2008). However, the failure to
actually identify the alleged speech in the Complaint necessarily means that Plaintiff has not met
the “protected speech” prong of this analysis.
14
As part of this causation analysis, Plaintiff must also properly allege no probable cause.
Hartman v. Moore, Supra, 547 U.S. 265-66. If Plaintiff fails to plead and prove the absence of
probable cause, her claim must fail. See Nieves v. Bartlett, supra, 139 S. Ct. 1725 (summary
judgment entered in favor of defendants in retaliatory arrest case). As noted above, Plaintiff
repeatedly makes conclusory allegations that Officer DellaRocco deliberately made false
statements in his affidavit but fails to provide any factual support for a lack of probable cause in
the application for the search and seizure warrant. The Town of Redding and the Department
received numerous complaints over many months related to the condition of the animals at
Plaintiff’s property. A joint surveillance operation between the Department and Redding Police
observed extensive support for probable cause to believe the crime of animal cruelty was being
committed by Plaintiff. Said observations were recorded in the application for the warrant.
Because Plaintiff fails to identify the causal connection between the pursuit of the search and
seizure warrant and her alleged protected speech, and also fails to allege that the execution of the
search warrant would not have happened absent that speech, this count is legally insufficient as
pleaded.
Finally, in order to state a claim for constitutional injury under the First Amendment,
Plaintiff must also allege facts that demonstrated that her speech was indeed chilled by the
actions of Officer DellaRocco. In other words: she must identify her injury. Because Plaintiff
fails to allege facts that identify the speech she is engaged in, it is difficult to determine if she has
sufficiently pled a First Amendment injury. The Complaint does not identify how her speech has
been constrained. Plaintiff must allege that her speech has been effectively chilled by the
government action. Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). As explained
by a court of our neighboring jurisdiction, “[a] mere attempt to deprive a person of his First
15
Amendment rights is not actionable under § 1983.” Berard v. Town of Millville, 113 F. Supp. 2d
197, 203 (D. Mass. 2000), citing Andree v. Ashland County, 818 F.2d 1306, 1311 (7th Cir.
1987). Furthermore, if Plaintiff voluntarily chooses not to engage in protected speech, she
cannot allege a nexus between her protected rights and the deprivation of those rights by the
government. Finnucane v. Dandio, CV 0366182, 1997 Conn. Super. LEXIS 1487, at *17
(Super. Feb. 7, 1997). Additionally, Plaintiff has failed to allege a nexus between a lack of
access to the goats and her ability to engage in protected speech. Given the scant factual support
for this claim, it impossible to ascertain whether Plaintiff has voluntarily decided to stop her
alleged public interest endeavors, if they have been effectively obstructed by some government
action, or if she is still in fact engaged in the very same alleged speech. Without alleging facts to
demonstrate a First Amendment injury, Plaintiff has failed to state a claim upon which relief may
be granted.
c. PLAINTIFF HAS FAILED TO STATE A CLAIM UNDER THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
Plaintiff’s second theory of constitutional deprivation pursuant to 42 U.S.C. § 1983 rests
on an alleged violation of her rights under the Fourth Amendment. A § 1983 claim for unlawful
search and seizure and false arrest rests on the Fourth Amendment guarantee that an individual
be free from unreasonable seizures. See US Const. Amend. IV. “Ordinarily, an arrest or search
pursuant to a warrant issued by a neutral magistrate is presumed reasonable because such
warrants may issue only upon a showing of probable cause." Walczyk v. Rio, 496 F.3d 139, 155-
56 (2d Cir. 2007). A plaintiff who argues that a warrant was issued on less than probable cause
faces a heavy burden." Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991). In a civil
16
rights action, to challenge the probable cause for a search warrant, the plaintiff must make a
substantial preliminary showing that the affiant knowingly and intentionally, or with reckless
disregard for the truth, made a false statement in his affidavit and that the allegedly false
statement was necessary to the finding of probable cause. Fabrikant v. French, 691 F.3d 193,
214 (2d Cir. 2012) (appeal from summary judgment stemming from animal cruelty seizure). The
existence of probable cause will defeat a claim of malicious prosecution and unreasonable search
and seizure. Id. at 215. As noted extensively above, Plaintiff has not met her burden to plead a
lack of probable cause, under a Franks analysis. The warrant affidavit contained significant first-
hand investigative observations as well as reports and records of credible third parties. Most
importantly, Plaintiff failed to make a substantial showing that knowingly false statements were
deliberately included in the affidavit in support of the warrant, and that said alleged statements
were necessary to make a finding a probable cause. Absent factual allegations that meet both
prongs, the probable cause determination by the issuing court should not be disturbed. Because
Plaintiff has not sufficiently alleged a lack of probable, she has failed to state a claim for
unreasonable search and seizure, in violation of the Fourth Amendment.
d. PLAINTIFF HAS FAILED TO STATE A CLAIM UNDER THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
Plaintiff’s Count Seven also alleges a claim for constitutional deprivation, pursuant to 42
U.S.C. § 1983, for violation of the Fourteenth Amendment to the United State Constitution. The
Fourteenth Amendment to the United States constitution guarantees that no state shall deprive
any person of life, liberty or property, without due process of law. U.S. Const., Amend. XIV.
Although this claim does not explain the theory of constitutional deprivation as it relates to
17
Office DellaRocco, it can only plausibly apply to him as it relates to the seizure of the goats and
the procedural process afforded her to defend her property interest in the goats. 7 In a § 1983 suit
brought to enforce procedural due process rights, a court must first determine whether a property
interest is implicated, and then, if it is, determine what process is due before the plaintiff may be
deprived of that interest. (Internal quotations omitted.) Hanson v. Town of East Lyme, Docket
No. 3:19-cv-01856-CSH, 2021 U.S. Dist. LEXIS 16741, at *10 (D. Conn. Jan. 29, 2021),
quoting Nnebe v. Daus, 931 F.3d 66, 80 (2d Cir. 2019). Due process requires that an individual
be given notice and an opportunity to be heard prior to the state's permanent deprivation of his
property interest. Chunn v. Amtrak, P.O., 916 F.3d 204, 207 (2d Cir. 2019), quoting, Dusenbery
v. United States, 534 U.S. 161, 167 (2002). “It is generally sufficient, where only property rights
are concerned, that there is at some stage an opportunity for a hearing and a judicial
determination.” Id. Plaintiff has not yet been permanently deprived of her property interest in
the goats and there is ongoing litigation in a proper forum to adjudicate her interest. Because
Plaintiff is actively litigating and awaiting a judicial determination of the final disposition of the
goats, she cannot credibly suggest that she has been denied any procedural due process rights.
In the case of the present seizure, there are three points of fact worthy of additional
consideration: 1) the seizure of the goats was expressly authorized by a search and seizure
warrant approved by a judicial authority 8, 2) while the goats are living animals, they are none-
the-less akin to evidence of criminal activity related to a pending criminal animal cruelty matter
7
Because Officer DellaRocco did not physically effectuate Plaintiff’s arrest for animal cruelty, it
appears that this claim can only be related to the seizure of the goats.
8
Even “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 postdeprivation remedy for the loss is available." Hudson v. Palmer,
468 U.S. 517, 533 (1984). In the present case, the intentional seizure of the goats was lawfully
authorized by the court, D’Andrea, J., in the form of a warrant.
18
and 3) the post-deprivation procedures that Plaintiff has been afforded are explicitly set by
statute and not by the Department. As noted extensively above, the goats were seized pursuant
to a search warrant and Plaintiff has not sufficiently alleged facts to overcome the presumption
of its validity. To the extent this Fourteenth Amendment claim relies on defects in the warrant, it
must fail. Second, if the goats were inanimate objects, whose existence served as the basis for
criminal charges, they would undoubtedly be retained as evidence and not returned to Plaintiff;
otherwise, every criminal defendant could state a Fourteenth Amendment claim for being
deprived of their property despite it being evidence of a crime. Lastly, the legislature has already
determined the appropriate procedure required for dealing with this unique circumstance. Conn.
Gen. Stat. §22-329a sets forth the procedures for dealing with animals that are seized pursuant to
warrant 9 and, in a
Preview
DOCKET NO. (X06) UWY-CV21-5028294-S NANCY BURTON : SUPERIOR COURT Plaintiff : : COMPLEX LITIGATION v. : DOCKET : AT WATERBURY DAVID PHILIP MASON, Et Al. : Defendants : FEBRUARY 25, 2021 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE Defendants, State of Connecticut Department of Agriculture (“Department”), Bryan P. Hurlburt, Commissioner of Agriculture (“Commissioner”), and Charles DellaRocco, State Animal Control Officer (referred to collectively as “State Defendants”), pursuant to Practice Book § 10-39, file the present Memorandum in Support of their Motion to Strike. Plaintiff has insufficiently pled her count based on violations of 42 U.S.C. § 1983 (Count Seven). The operative complaint is Plaintiff’s Fourth Amended Complaint (“Complaint”). 1 (Entry No. 307.00.) Plaintiff’s claim for false arrest (Count Eight) fails to allege facts that could support a claim for which relief may be granted and is therefore legally insufficient. Plaintiff’s Count Eight must be stricken as it is completely unsupported by the Complaint. I. FACTS The Redding Police Department has received numerous complaints related to a herd of goats living on Plaintiff’s property and roaming the neighborhood. The Department of 1 Despite an express directive by the Court that this revision not include additional factual allegations, Plaintiff discretely inserted two paragraphs related to Officer DellaRocco. (Compl. ¶¶ 76, 77.) Additionally, Plaintiff inserted an entire count, Count Eight – False Arrest, against State Defendants that was not previously included in prior iterations as applying to them. 1 Agriculture has also received a number of complaints about the condition of the goats on Plaintiff’s property and the lack of care they were being given. In September 2017, the Town of Redding Zoning Commission issued a cease and desist order to address Plaintiff’s violation of the town’s zoning regulations related to livestock. (Compl. ¶ 24.) As a result of a motor vehicle incident involving one of Plaintiff’s roaming goats, Plaintiff was arrested. (Compl. ¶ 50, 51.) On October 7, 2020, the Department of Agriculture, State Animal Control unit received a complaint about injured and/or neglected goats on Plaintiff’s property. After a months-long investigation, including a multiday surveillance operation, Officer DellaRocco, in consultation with the Chief State Animal Control Officer, determined there was probable cause to believe the crime of animal cruelty was being committed, as defined in Conn. Gen. Stat. § 53-247. On March 9, 2021, Judge Robert A. D’Andrea approved a search and seizure warrant application sought by Officer DellaRocco. (Compl. ¶ 74, 77.) Pursuant to Conn. Gen. Stat. § 22-329a(b), the Department of Agriculture, State Animal Control Unit, with the assistance of the Redding Police Department, executed the search and seizure warrant on March 10, 2021. (Compl. ¶ 82.) The execution of the search and seizure warrant resulted in the discovery of dozens of dead goats scattered across Plaintiff’s property in tote bins, garbage bags and wooden crates. A recently deceased goat was found in one of the barns; partially eaten by rodents. A number of goats were observed to be underweight and malnourished. Many goats had untrimmed hooves that were excessively long and impacted the mobility of the animals. Some goats were limping and at least one goat was unable to walk on its own. Sixty-five goats were seized pursuant to the execution of the search and seizure warrant. The Department of Agriculture, acting through its Chief State Animal Control Officer, filed a verified petition seeking permanent custody and ownership over the sixty-five goats. 2 After two days of evidentiary hearing, Judge Susan Cobb entered a temporary order of custody to the State of Connecticut Department of Agriculture. In entering the temporary order, the Court made findings of fact that the Plaintiff neglected and treated her goats cruelly in a number of ways. The Court found that Plaintiff failed to provide her goats adequate shelter, food, water and hoof trimming. That civil action is ongoing and is presently pending in the Waterbury Judicial District on the Complex Litigation Docket. (State of Connecticut, ex rel, Jeremiah Dunn, Chief State Animal Control Officer v. Sixty-Five Goats and Nancy Burton, UWY-CV21-6064254-S.) Subsequent to the search and seizure, Plaintiff has also been charged with sixty-five counts of criminal animal cruelty related to the treatment of the goats on her property. That criminal matter is also pending and is in pre-trial status. On April 21, 2021, Plaintiff filed the present action against a number of parties under various theories. Plaintiff’s Complaint is riddled with conclusory allegations, misrepresentations, and deceptive recitations of fact. Upon information and belief, the present action is retaliatory in nature and is intended to seek retribution rather than relief for any legitimate claims. II. STANDARD “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.” Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117 (2006), quoting Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154 (2005). The purpose of a motion to strike is to contest the legal sufficiency of the allegations of the complaint. Id. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). “A complaint must fairly put the defendant on notice of the claims against him . . . The purpose of the 3 complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." (Internal quotations omitted) Fingelly v. Town of Fairfield, Docket No. FBTCV136037513, 2014 Conn. Super. LEXIS 2957, at *5 (Super. Nov. 24, 2014) (motion to strike granted where plaintiff failed to explain the manner in which the Fourteenth Amendment is relevant to her factual claims in order to provide the defendants with adequate notice of the claims against them), quoting Gilbert v. Middlesex Hospital, 58 Conn.App. 731, 734 (2000). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003) III. ARGUMENT A. PLAINTIFF HAS FAILED TO STATE A CLAIM FOR CONSTITUTIONAL INJURY BY THE COMMISSIONER OF AGRICULTURE, BRYAN P. HURLBURT Plaintiff’s Count Seven alleges a claim pursuant to 42 U.S.C. § 1983 for violations of Plaintiff’s rights under the First, Fourth and Fourteenth Amendments to the United States Constitution. That provision creates a private right of action against any person who, acting under color of state law, causes another person to be subjected to the deprivation of their rights under the Constitution or federal law. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The Commissioner is an agent of the State of Connecticut whose official acts are taken under the color of state law. Therefore, the preliminary inquiry for purposes of Plaintiff’s claim is to determine what official actions the Commissioner took that caused an alleged deprivation of her constitutional rights. 4 After thorough review of the Complaint, it is still unclear what actions, if any, were taken by Commissioner Hurlburt or what injury was suffered thereunder. Plaintiff alleges that the “defendants, some or all of them,” caused her constitutional injury. (Compl. at 18.) 2 To begin, such an ambiguous identification of the parties cannot sustain a claim under § 1983 because it does not specifically indicate that the Commissioner caused her injury. Even if it could, the allegations offered in the Complaint do not explain what actions would have implicated the Commissioner. Plaintiff alleges that, on December 2, 2020, she provided the Commissioner with a complaint demanding an investigation into the actions of some of the co-defendants. (Compl. ¶ 55.) Plaintiff concedes that an investigation was opened. (Compl. ¶ 57.) Plaintiff further acknowledges that Officer DellaRocco testified that the complaint to the Commissioner was “unfounded.” (Compl. ¶ 62.) Plaintiff goes on to allege that after asking the Commissioner to reopen the investigation, she was informed that the investigation was closed. (Compl. ¶¶ 66, 69.) The Complaint offers no other factual allegations attributable to the Commissioner. It is difficult to see how these allegations give rise to a constitutional injury cognizable under § 1983. “In order to state a cause of action under section 1983, the plaintiff must allege an abuse of governmental power which is sufficiently egregious as to be constitutionally tortious.” McLaughlin v. City of Shelton, CV92 04 03 31, 1995 Conn. Super. LEXIS 1548, at *3 (Super. May 23, 1995). Nothing in Plaintiff’s Complaint indicates any action by the Commissioner that resulted in a constitutional deprivation at all, and Plaintiff has failed to state a claim thereby. Also, if Plaintiff’s claim rests on the Commissioner’s status as the head of the Department and not for individual acts undertaken by him, this claim necessarily fails. Plaintiff 2 In Plaintiff’s Complaint, the additional allegations added and the inaccurate formatting makes it impossible to identify many allegations by paragraph. Those allegations will be referenced by page number. 5 alleges that Commissioner Hurlburt is “responsible for the agency’s lawful discharge of its statutory duties and the lawful conduct of the [DoAG’s] staff.” (Compl. ¶ 41.) This, without more, does not invoke a claim for relief under § 1983. It is well established that the doctrine of respondeat superior cannot form a basis for a claim under § 1983. Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999). This is because the alleged conduct must be specific, and the state actor must be directly involved with the constitutional violation. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) ("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”). Simply put, “liability under § 1983 turns on a defendant's personal involvement in the alleged constitutional deprivations.” Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Even if Plaintiff could allege some constitutional injury at the hands of the staff or agents of the Department, which she does not, it could not form a basis to a claim under § 1983 against the Commissioner. “A plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“each Government official, his or her title notwithstanding, is only liable for his or her own misconduct”). Because Plaintiff’s allegations directed at Commissioner Hurlburt do not identify any specific personal responsibility for any alleged injury, Count Seven, as applied to him, must be stricken. Sienkiewicz v. Ragalia, Docket No. CV030401770S, 2008 Conn. Super. LEXIS 1090, at *14-15 (Super. May 5, 2008), citing Arroyo v. Schaefer, 548 F.2d 47, 51 (2nd Cir. 1977). 6 B. PLAINTIFF HAS FAILED TO STATE A CLAIM FOR CONSTITUTIONAL INJURY BY OFFICER CHARLES DELLAROCCO a. ELEMENTS OF A CLAIM UNDER § 1983 As noted above, Plaintiff’s Count Seven alleges a claim pursuant to 42 U.S.C. § 1983 for violations of Plaintiff’s rights under the First, Fourth and Fourteenth Amendments to the United States Constitution. Plaintiff alleges that “defendants, some or all of them,” have caused her constitutional injury in violation of the first, fourth and fourteenth amendments of the United State Constitution. (Compl. at 18.) Similar to the Commissioner, this count also does not directly implicate Officer DellaRocco by name, and it is unclear as to whether this count is directed to him at all. As a result, Plaintiff cannot not sustain a claim against him pursuant to 42 U.S.C. § 1983. Addressing claims against unspecified defendants deprives all defendants of notice of alleged wrongdoing and cannot sustain a claim pursuant to § 1983. Faced with similar ambiguous pleadings, courts in other jurisdictions have determined that a claim under § 1983 cannot lie where the defendants are not specifically identified. 3 See e.g., Liera v. City of Chicago, Docket No. 13 C 9032, 2014 U.S. Dist. LEXIS 190571, at *9 (N.D. Ill. Aug. 5, 2014); Cox v. Marchant, Docket No. 2:11-2811-PMD-BHH, 2011 U.S. Dist. LEXIS 138351, at *6 (D.S.C. Oct. 31, 2011) (“[i]t is well settled that federal courts performing their duties of construing pro se pleadings are not required to be "mind readers" or "advocates" for pro se litigants”); Roberts v. Prince George's County, 157 F. Supp. 2d 607, 609 (D. Md. 2001); Nelson v. City of Los Angeles, Docket No. CV 11-5407-PSG (JPR), 2015 U.S. Dist. LEXIS 56274, at 3 Furthermore, unlike scenarios in which a plaintiff may not be able to identify the individual actors, for example where multiple officers may take some action in concert, Plaintiff has offered no explanation as to why she cannot identify the actors that allegedly deprived her of constitutional rights, in the present case. 7 *54-55 (C.D. Cal. Feb. 18, 2015) (Fifth and Fourteenth Amendment claims). Because Plaintiff has failed to identify DellaRocco, in this count, it cannot be applicable to him as he was not fairly put on notice, Fingelly v. Town of Fairfield, Docket No. FBTCV136037513, 2014 Conn. Super. LEXIS 2957, at *5 (Super. Nov. 24, 2014), and it necessarily lacks the showing of personal involvement under this count. Jamison v. Fischer, 2012 U.S. Dist. LEXIS 144307, at *7 (S.D.N.Y. Sep. 27, 2012); Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). For this reason alone, Plaintiff’s Count Seven fails to state a claim on its face. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, supra, 487 U.S. 48. "These two elements denote two separate areas of inquiry: the plaintiff must prove a constitutional or statutory violation and that violation must have been committed by the defendant acting under color of law." Wilson v. Hryniewicz, 38 Conn. App. 715, 720 (1995). Officer DellaRocco is a State Animal Control Officer and is being sued for official acts taken in furtherance of his duties. (Compl. ¶ 42.) The initial inquiry necessarily is whether Plaintiff has properly alleged a constitutional violation. Plaintiff alleges that Officer DellaRocco was assigned to and investigated a complaint requested by Plaintiff into the conduct of her neighbors. (Compl. ¶¶ 57, 59.) Plaintiff alleges that Officer DellaRocco did not update her on the status of his investigation. (Compl. ¶ 61.) Plaintiff further alleges that Officer DellaRocco stated that the phone number Plaintiff provided to him could not be traced to a co-defendant. (Compl. ¶ 65.) Plaintiff alleges that Officer DellaRocco conducted surveillance of her property from an adjacent property with the landowner’s permission. (Compl. ¶ 70.) Without identifying any false statements, Plaintiff alleges that 8 Officer DellaRocco presented an affidavit in support of a search warrant that contained “false statements.” (Compl. ¶ 75.) Plaintiff concedes that a search and seizure warrant was issued by a judge of the Superior Court “to authorize the immediate seizure of 65 goats” and “authorize a search of plaintiff’s home.” (Compl. ¶¶ 79, 81.) Plaintiff goes on to make a number of false, misleading and unsupported allegations related to her claim for animal cruelty and a baseless allegation of theft of still unknown property. (Compl. ¶¶ 84, 85.) Given that Plaintiff concedes that the search of her property and seizure of the goats were pursuant to a judicially approved search warrant, it only stands to reason that Plaintiff’s allegations of constitutional deprivation can only stand if she challenges the validity of the search and seizure warrant application and Officer DellaRocco’s involvement therein. 4 To begin, there is a presumption of validity with respect to the affidavits supporting a search warrant. Franks v. Delaware, 438 U.S. 154, 171 (1978). It is well settled law throughout the United States that a party wishing to challenge the validity of a search warrant must make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.” (Emphasis added.) Id. at 155-56. In the civil context, a plaintiff must make the same substantial showing, as required by Franks v. Delaware, in order to maintain a claim under § 1983, stemming from an allegedly unlawful search warrant. Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994). The inquiry is two-part: the plaintiff must show that the affiant knowingly and deliberately, or with reckless disregard to the 4 Because Plaintiff’s Count Seven does not specifically identify any of the relevant paragraphs of her Complaint, it is difficult to ascertain which alleged facts are related to a constitutional injury that gives rise to this count or what Plaintiff’s theory of this claim is. 9 truth, made false statements in the application for the warrant and demonstrate that said statements were necessary for a finding of probable cause. Golino v. New Haven, 950 F.2d 864, 870 (2d Cir. 1991). The burden is on Plaintiff to meet both prongs. Willocks v. Dodenhoff, 110 F.R.D. 652, 657 (D. Conn. 1986) (motion for summary judgment context). Here, Plaintiff fails to make any showing, let alone a substantial showing, in support of either prong. Under the first prong of Franks v. Delaware, Plaintiff must make a showing that the affiant (Officer DellaRocco) knowingly and deliberately, or with reckless disregard to the truth, made false statements. While Plaintiff alleges that the affidavit was “replete with knowingly false statements”, (Compl. ¶ 75), she “does not support these conclusory statements with any facts which would give rise to the inference that any misstatements were made, or that any such misstatements were knowingly made.” Soyke v. Rounds, 92-CV-856, 1993 U.S. Dist. LEXIS 3130, at *5-6 (N.D.N.Y. Mar. 8, 1993) (denying motion for reconsideration and granting motions to dismiss). The burden is on Plaintiff to provide sufficient information showing that Officer DellaRocco intentionally provided inaccurate information to the court, D’Andrea, J., in the affidavit in support of the search warrant. See United States v. Worjloh, 546 F.3d 104, 109 (2d Cir. 2008). “The error must be shown by a preponderance of the evidence to have been knowingly and intentionally false or made with reckless disregard for the truth …. Allegations of negligence or innocent mistake are insufficient to require a reevaluation of the affidavit.” (Internal quotations omitted.) State v. Stepney, 191 Conn. 233, 239, 464 A.2d 758 (1983), quoting Franks v. Delaware, supra, 438 U.S. 155. Also, Plaintiff’s allegation that Officer DellaRocco relied “on the statements of others who possess malicious motives and lack credibility” is insufficient to meet her burden. (Compl. ¶ 75.) Even if Plaintiff pointed to specific errors of fact that were provided to Officer DellaRocco by various informants, which she 10 does not, it would not provide evidence of “deliberate falsity or reckless disregard” required for a showing under Franks. Willocks v. Dodenhoff, supra, 110 F.R.D. 658. (factual errors in statement of non-governmental informant, recorded within the application, cannot support a claim of deliberate misstatements on the part of the affiant). Because Plaintiff has failed to articulate what alleged false statements are contained in the affidavit, she has failed to make the substantial showing required to challenge the lawfulness of the search and seizure warrant. Plaintiff’s conclusory allegations of false statements “must be accompanied by an offer of proof.” (Internal quotations omitted.) State v. Simmons, 10 Conn. App. 561, 563 (1987), quoting Franks v. Delaware, supra, 438 U.S. 171. Under the second prong of Franks, Plaintiff must also make a showing that the false statements were necessary to a showing of probable cause. Aside from failing to identify what false statements are contained in the affidavit, there is nothing in Plaintiff’s complaint to indicate that Judge D’Andrea relied on false statements in his finding of probable cause to issue the warrant. 5 If Plaintiff had sufficiently identified a false statement and it was set aside, her challenge to the warrant would still fail because of the substantial number of unrefuted allegations in the affidavit that could still establish probable cause. See State v. Bergin, 214 Conn. 657, 666 (1990). Judge D’Andrea’s role in issuing the warrant was “to make a practical, 5 The finding of probable cause by Judge D’Andrea was also vindicated, although with far more information, by the finding of reasonable cause that the goats should be placed in the State’s care to protect them from Plaintiff’s cruel and neglectful treatment. State ex rel. Dunn v. Sixty-Five Goats, Docket No. CV216139702S, 2021 Conn. Super. LEXIS 483, at *5 (Super. Apr. 9, 2021). The conditions described in the affidavit were in fact confirmed and the evidence obtained pursuant to the search warrant was sufficient for Judge Cobb to find reasonable cause to believe the goats needed to be placed in the State’s care for their protection. In certain circumstances, the finding of reasonable cause and probable cause are synonymous. State ex rel. Dunn v. Sixty-Five Goats, Docket No. HHDCV216139702, 2020 Conn. Super. LEXIS 2659, at *11-12 (Super. May 17, 2020), citing Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 549, 636 A.2d 1360 (1994). 11 common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Parowski, Docket Nos. AANCR110145454T, AANCR110145455T, 2012 Conn. Super. LEXIS 754, at *28-29 (Super. Mar. 16, 2012). There was ample information contained in the affidavit for Judge D’Anrea to make this decision. Even if Plaintiff could point to a Frank’s violation, which she does not, the substantial remaining content of the affidavit, would support a finding of probable cause. See Id. at *29. In addition to meeting both elements of a claim under § 1983, Plaintiff must also properly allege the elements of the underlying constitutional injury. Plaintiff must also demonstrate that she has stated a claim under the relevant law related to each specific constitutional injury, because § 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. Albright v. Oliver, 510 U.S. 266, 271 (1994); Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004); Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). b. PLAINTIFF HAS FAILED TO STATE A CLAIM UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION As part of her Count Seven, Plaintiff alleges that defendants have acted under color of state law to deprive her of the rights and protections guaranteed by the United States Constitution, including the First Amendment. (Compl. at 18.) Although this count, and the complaint in general, does not properly explain the theory behind this claim, it appears that Plaintiff is suggesting that State Defendants obtained and executed the search and seizure 12 warrant in retaliation for her religious faith, her exercise of free speech, right to assemble or her petitioning the government for a redress of grievances. US Const. Amend. I. The only plausible theory is one sounding in free speech. “As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.” (Internal quotations omitted.) Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019), quoting Hartman v. Moore, 547 U. S. 250, 256 (2006). To prevail on a retaliatory free speech claim under § 1983 Plaintiff “must prove: (1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment right.” Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (appeal from summary judgment). In order to state a claim for First Amendment retaliation under § 1983, Plaintiff must first allege speech that is protected by the First Amendment. Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008). Because Plaintiff fails to allege what speech she was engaged in, it is impossible to determine whether it is protected by the First Amendment. Plaintiff claims defendants aim to “divert her from her important public-interest endeavors” and retaliate against her “for her bold and courageous public-interest endeavors in which she has spoken truth to power.” (Compl. ¶¶ 87, 88.) Plaintiff doesn’t specifically identify what these important public- interest endeavors are, however. Because Plaintiff fails to allege with any clarity what speech she made, her claim must fail as it has not been properly pleaded. 13 If Plaintiff’s speech is protected 6 this claim still must fail as she has not alleged facts that support a finding of a retaliatory motive. “If an official takes adverse action against someone based on that forbidden motive, and non-retaliatory grounds are in fact insufficient to provoke the adverse consequences, the injured person may generally seek relief by bringing a First Amendment claim.” (Internal quotes omitted.) Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019). Simply put, Plaintiff must establish a causal connection between the government’s action and the exercise of the plaintiff’s First Amendment rights, and there must not be an alternate basis for the government action. “[I]t must be a “but-for” cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” Id., citing Hartman v. Moore, 547 U.S. 250, 260 (2006). Because Officer DellaRocco acted in good-faith and because Plaintiff fails to provide any factual allegations that Officer DellaRocco was aware of any alleged protected speech, she cannot maintain a retaliation claim against him. Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1954 (2018). The goats would have been seized, given their cruel and neglectful treatment, regardless of the protected speech she believes she is engaged in. The claim of retaliation is negated if the government action (seizure of the goats) would have been taken regardless of an alleged retaliatory motive. “An individual does not have a right under the First Amendment to be free from a criminal prosecution supported by probable cause, even if that prosecution is in reality an unsuccessful attempt to deter or silence criticism of the government.” Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012). 6 State Defendants concede that the bar for protected speech is lower, given that Plaintiff is not a government employee, and the threshold showing in employment context cases is different. See Williams v. Town of Greenburgh, 535 F.3d 71, 77 (2d Cir. 2008). However, the failure to actually identify the alleged speech in the Complaint necessarily means that Plaintiff has not met the “protected speech” prong of this analysis. 14 As part of this causation analysis, Plaintiff must also properly allege no probable cause. Hartman v. Moore, Supra, 547 U.S. 265-66. If Plaintiff fails to plead and prove the absence of probable cause, her claim must fail. See Nieves v. Bartlett, supra, 139 S. Ct. 1725 (summary judgment entered in favor of defendants in retaliatory arrest case). As noted above, Plaintiff repeatedly makes conclusory allegations that Officer DellaRocco deliberately made false statements in his affidavit but fails to provide any factual support for a lack of probable cause in the application for the search and seizure warrant. The Town of Redding and the Department received numerous complaints over many months related to the condition of the animals at Plaintiff’s property. A joint surveillance operation between the Department and Redding Police observed extensive support for probable cause to believe the crime of animal cruelty was being committed by Plaintiff. Said observations were recorded in the application for the warrant. Because Plaintiff fails to identify the causal connection between the pursuit of the search and seizure warrant and her alleged protected speech, and also fails to allege that the execution of the search warrant would not have happened absent that speech, this count is legally insufficient as pleaded. Finally, in order to state a claim for constitutional injury under the First Amendment, Plaintiff must also allege facts that demonstrated that her speech was indeed chilled by the actions of Officer DellaRocco. In other words: she must identify her injury. Because Plaintiff fails to allege facts that identify the speech she is engaged in, it is difficult to determine if she has sufficiently pled a First Amendment injury. The Complaint does not identify how her speech has been constrained. Plaintiff must allege that her speech has been effectively chilled by the government action. Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). As explained by a court of our neighboring jurisdiction, “[a] mere attempt to deprive a person of his First 15 Amendment rights is not actionable under § 1983.” Berard v. Town of Millville, 113 F. Supp. 2d 197, 203 (D. Mass. 2000), citing Andree v. Ashland County, 818 F.2d 1306, 1311 (7th Cir. 1987). Furthermore, if Plaintiff voluntarily chooses not to engage in protected speech, she cannot allege a nexus between her protected rights and the deprivation of those rights by the government. Finnucane v. Dandio, CV 0366182, 1997 Conn. Super. LEXIS 1487, at *17 (Super. Feb. 7, 1997). Additionally, Plaintiff has failed to allege a nexus between a lack of access to the goats and her ability to engage in protected speech. Given the scant factual support for this claim, it impossible to ascertain whether Plaintiff has voluntarily decided to stop her alleged public interest endeavors, if they have been effectively obstructed by some government action, or if she is still in fact engaged in the very same alleged speech. Without alleging facts to demonstrate a First Amendment injury, Plaintiff has failed to state a claim upon which relief may be granted. c. PLAINTIFF HAS FAILED TO STATE A CLAIM UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION Plaintiff’s second theory of constitutional deprivation pursuant to 42 U.S.C. § 1983 rests on an alleged violation of her rights under the Fourth Amendment. A § 1983 claim for unlawful search and seizure and false arrest rests on the Fourth Amendment guarantee that an individual be free from unreasonable seizures. See US Const. Amend. IV. “Ordinarily, an arrest or search pursuant to a warrant issued by a neutral magistrate is presumed reasonable because such warrants may issue only upon a showing of probable cause." Walczyk v. Rio, 496 F.3d 139, 155- 56 (2d Cir. 2007). A plaintiff who argues that a warrant was issued on less than probable cause faces a heavy burden." Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991). In a civil 16 rights action, to challenge the probable cause for a search warrant, the plaintiff must make a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause. Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012) (appeal from summary judgment stemming from animal cruelty seizure). The existence of probable cause will defeat a claim of malicious prosecution and unreasonable search and seizure. Id. at 215. As noted extensively above, Plaintiff has not met her burden to plead a lack of probable cause, under a Franks analysis. The warrant affidavit contained significant first- hand investigative observations as well as reports and records of credible third parties. Most importantly, Plaintiff failed to make a substantial showing that knowingly false statements were deliberately included in the affidavit in support of the warrant, and that said alleged statements were necessary to make a finding a probable cause. Absent factual allegations that meet both prongs, the probable cause determination by the issuing court should not be disturbed. Because Plaintiff has not sufficiently alleged a lack of probable, she has failed to state a claim for unreasonable search and seizure, in violation of the Fourth Amendment. d. PLAINTIFF HAS FAILED TO STATE A CLAIM UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION Plaintiff’s Count Seven also alleges a claim for constitutional deprivation, pursuant to 42 U.S.C. § 1983, for violation of the Fourteenth Amendment to the United State Constitution. The Fourteenth Amendment to the United States constitution guarantees that no state shall deprive any person of life, liberty or property, without due process of law. U.S. Const., Amend. XIV. Although this claim does not explain the theory of constitutional deprivation as it relates to 17 Office DellaRocco, it can only plausibly apply to him as it relates to the seizure of the goats and the procedural process afforded her to defend her property interest in the goats. 7 In a § 1983 suit brought to enforce procedural due process rights, a court must first determine whether a property interest is implicated, and then, if it is, determine what process is due before the plaintiff may be deprived of that interest. (Internal quotations omitted.) Hanson v. Town of East Lyme, Docket No. 3:19-cv-01856-CSH, 2021 U.S. Dist. LEXIS 16741, at *10 (D. Conn. Jan. 29, 2021), quoting Nnebe v. Daus, 931 F.3d 66, 80 (2d Cir. 2019). Due process requires that an individual be given notice and an opportunity to be heard prior to the state's permanent deprivation of his property interest. Chunn v. Amtrak, P.O., 916 F.3d 204, 207 (2d Cir. 2019), quoting, Dusenbery v. United States, 534 U.S. 161, 167 (2002). “It is generally sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination.” Id. Plaintiff has not yet been permanently deprived of her property interest in the goats and there is ongoing litigation in a proper forum to adjudicate her interest. Because Plaintiff is actively litigating and awaiting a judicial determination of the final disposition of the goats, she cannot credibly suggest that she has been denied any procedural due process rights. In the case of the present seizure, there are three points of fact worthy of additional consideration: 1) the seizure of the goats was expressly authorized by a search and seizure warrant approved by a judicial authority 8, 2) while the goats are living animals, they are none- the-less akin to evidence of criminal activity related to a pending criminal animal cruelty matter 7 Because Officer DellaRocco did not physically effectuate Plaintiff’s arrest for animal cruelty, it appears that this claim can only be related to the seizure of the goats. 8 Even “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 postdeprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533 (1984). In the present case, the intentional seizure of the goats was lawfully authorized by the court, D’Andrea, J., in the form of a warrant. 18 and 3) the post-deprivation procedures that Plaintiff has been afforded are explicitly set by statute and not by the Department. As noted extensively above, the goats were seized pursuant to a search warrant and Plaintiff has not sufficiently alleged facts to overcome the presumption of its validity. To the extent this Fourteenth Amendment claim relies on defects in the warrant, it must fail. Second, if the goats were inanimate objects, whose existence served as the basis for criminal charges, they would undoubtedly be retained as evidence and not returned to Plaintiff; otherwise, every criminal defendant could state a Fourteenth Amendment claim for being deprived of their property despite it being evidence of a crime. Lastly, the legislature has already determined the appropriate procedure required for dealing with this unique circumstance. Conn. Gen. Stat. §22-329a sets forth the procedures for dealing with animals that are seized pursuant to warrant 9 and, in a