12-2695-cv
Drew v. Connolly

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
31st day of October, two thousand thirteen.

Present:    JON O. NEWMAN,
            ROSEMARY S. POOLER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

JOHN F. DREW,

                                 Plaintiff-Appellant,

                           -v-                                                12-2695-cv

BRIAN CONNOLLY, CITY OF GROTON, GROTON POLICE
DEPARTMENT, BRUNO L. GIULINI,

                        Defendants-Appellees.*
_____________________________________________________

Appearing for Appellant:         Mary M. Puhlick, Puhlick & Cartier, P.C., Norwich, CT.

Appearing for Appellee:          James N. Tallberg, Karsten & Tallberg, LLC, West Hartford, CT.


        Appeal from the United States District Court for the District of Connecticut (Arterton,
J.).




        *
           The Clerk of the Court is directed to amend the caption as set out above.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Plaintiff-Appellant John F. Drew appeals from the July, 21, 2011 decision and order of
the United States District Court for the District of Connecticut (Arterton, J.), granting summary
judgment to Defendants-Appellees City of Groton and Bruno L. Giulini (collectively, the “City”)
on Drew’s Section 1983 claim. Drew also appeals from a decision and order of June 5, 2012,
granting a renewed Rule 50 motion for judgment to Defendant-Appellee Brian Connolly on
qualified immunity grounds. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

         Municipalities may be held liable for violations of constitutional rights under Section
1983 if “the action that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s
officers.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). Additionally, a plaintiff may
hold a municipality liable for a constitutional violation as a result of that municipality’s failure to
train its employees. City of Canton v. Harris, 489 U.S. 378, 387 (1989). A plaintiff may establish
a municipal policy or custom by showing that the municipality’s failure to train its officers
“amounts to deliberate indifference to the rights of persons with whom the police come into
contact.” Anthony v. City of New York, 339 F.3d 129, 140 (2d Cir. 2003) (citing City of Canton,
489 U.S. at 388-89).

        Drew argues that the granting of summary judgment on his claim against the City should
be vacated because the City’s incomplete response to his discovery inquiry about policies
precluded him from showing that a municipal policy concerning drivers’ licenses existed.
However, Drew’s remedy, once he became aware of the unwritten policy as a result of trial
testimony, was to move to vacate the summary judgment ruling, which the district court was
entitled to revisit at any time before final judgment. See Joseph P. Caulfield & Assocs., Inc. v.
Litho Prods., Inc., 155 F. 3d 883, 888 (7th Cir. 1998). We need not consider whether the City’s
incomplete discovery response might have entitled Drew to sanctions because no sanctions were
sought.

        Drew further argues that the district court erred in granting Connolly’s renewed motion
for judgment pursuant to Federal Rule of Civil Procedure 50. “[W]e review de novo the district
court’s decision regarding a motion for judgment as a matter of law” under Federal Rule of Civil
Procedure 50. Phillips v. Bowen, 278 F.3d 103, 108 (2d Cir. 2002). We apply the same standard
as that of the district court, and will grant a motion for judgment as a matter of law “only if,
viewing the evidence in the light most favorable to the non-moving party, a reasonable juror
would be compelled to find in favor of the moving party.” Tuccio v. Marconi, 589 F.3d 538, 549
(2d Cir. 2009).

        In this case, the district court properly granted Connolly’s motion for judgment on the
question of his qualified immunity. “A qualified immunity defense is established if (a) the
defendant’s action did not violate clearly established law, or (b) it was objectively reasonable for
the defendant to believe that his action did not violate such law.” Tierney v. Davidson, 133 F.3d
189, 196 (2d Cir. 1998) (internal quotation marks and citations omitted). Drew argues that
Connolly’s seizure of his driver’s license after his arrest violated his due process rights under the

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Fourteenth Amendment. Although the seizure of Drew’s license violated state law and the
written Departmental policy, an action that violates state law does not necessarily violate an
individual’s constitutional rights. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.
1998); Robinson v. Via, 821 F.2d 913, 922 (2d Cir. 1987). “The procedure mandated by state [ ]
law is not the benchmark for evaluating whether or not there has been a federal constitutional
violation.” Young, 160 F.3d at 902. Even if the objective reasonableness of Connolly’s action in
seizing Drew’s license was a jury question, the jury was entitled to find that it was objectively
reasonable for Connolly to believe that seizing Drew’s license did not violate due process.
Connolly was entitled to believe that Drew was under the influence of something other than
alcohol based on visual observations of Drew’s driving and field sobriety tests. There is no case
law within the Circuit or from the Supreme Court that has held to the contrary. See Okin v.
Village of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 433 (2d Cir. 2009) (noting that the
Court looks to “Supreme Court and Second Circuit precedent existing at the time of the alleged
violation to determine whether the conduct violated a clearly established right”). Connolly
violated no due process right by preventing Drew from operating a motor vehicle on the night in
question.

        Because we affirm the district court’s judgments in Connolly’s favor, Drew is not a
prevailing party and is accordingly not entitled to an award of attorney’s fees. See 42 U.S.C. §
1988(b). Accordingly, the decisions and orders of the district court are hereby AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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