Case 3:10-cv-00879-JBA Document 43 Filed 09/23/11 Page 1 of 8
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
`
`William Felix Bossie,
`Plaintiff,
`
`v.
`
`Michael J. Houle,
`Defendant.
`
`Civil No. 3:10cv879 (JBA)
`
`September 23, 2011
`
`RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`
`On September 2, 2010, Plaintiff William Felix Bossie filed a Seconded Amended
`
`Complaint [Doc. # 25] against Defendant Connecticut State Trooper Michael J. Houle
`
`alleging that Houle violated 42 U.S.C. § 1983 during his investigation of a automobile
`
`collision involving Bossie “by denying [him] the benefits of both a procedurally fair and
`
`accurate investigation into the facts and/or causes of the Collision on account of [his] race
`
`and/or national origin as a Hispanic male.” Defendant now moves [Doc. # 31] for summary
`
`judgment. For the reasons stated below, Defendant’s motion for summary judgment will
`
`be granted.
`
`I.
`
`Material Facts
`
`On April 20, 2010 at approximately 6:00 a.m., while driving westbound on Interstate
`
`84 in Waterbury, Connecticut, Mr. Bossie lost control of his car and collided with a vehicle
`
`driven by Paul Yankowski. (Accident Report, Ex. C to Def.’s Loc. R. 56(a)1 Stmt. at 2.) Mr.
`
`Bossie’s car came to rest on the left side of the highway. (Id.) Trooper Houle was dispatched
`
`to the scene of the accident and wrote in his ensuing Accident Report that when he arrived
`
`he approached Mr. Bossie’s car and spoke with Mr. Bossie. (Houle Aff. ¶ 3–4, Ex. A to Def.’s
`
`56(a)1 Stmt.) He stated in the Accident Report and in his affidavit that Mr. Bossie claimed
`
`

`
`Case 3:10-cv-00879-JBA Document 43 Filed 09/23/11 Page 2 of 8
`
`that Mr. Yankowski’s car collided with his after he attempted to change lanes into the left
`
`lane and Mr. Yankowski would not allow him to. (Id. ¶ 5; Accident Report at 2.) Mr. Bossie
`
`claims that “[t]he only words that . . . Houle stated to me at the accident scene were to ask
`
`me if I had any injuries, and to stay in my car. He refused to listen to or take my factual
`
`version of how the motor vehicle accident happened.” (Bossie Aff. ¶ 2; see also Bossie Dep.,
`
`Ex. D to Def.’s 56(a)1 Stmt. at 73:12–23.) Mr. Yankowski told Trooper Houle that after
`
`entering the highway, Mr. Bossie quickly moved into the left lane without signaling and that
`
`he was unable to avoid striking Mr. Bossie’s car. (Accident Report at 2–3; Yankowski Aff.,
`
`Ex. B to Def.’s 56(a)1 Stmt. ¶¶ 3–4.)
`
`Mr. Bossie claims that Trooper Houle’s Accident Report is “Ninety Five (95) percent
`
`factually false as written in its narrative form.” (Id.) In addition to denying that Trooper
`
`Houle listened to his version of how the collision happened, Mr. Bossie alleges that while he
`
`was on an ambulance stretcher following the accident he saw Trooper Houle, while speaking
`
`to Mr. Yankowski, “visibly laughing at me, smiling at me, joking about me, and pointing his
`
`finger at me all while doing so.” (Id. ¶ 3; Bossie Dep. at 73:12–23, 127:5–128:9.) Mr. Bossie
`
`also alleges that after he asked Trooper Houle to retrieve his cell phone from his car, he saw
`
`Trooper Houle “forcibly tear a Puerto Rican flag off of my motor vehicle.” (Bossie Aff. ¶ 3.)
`
`He testified during his deposition that Trooper Houle “pulled my Puerto Rican flag that I
`
`had on my car back on the speaker . . . and took it and threw it . . . down.” (Bossie Dep. at
`
`74:15–25.) He similarly stated at a later point in the deposition that Trooper Houle “[w]ent
`
`in the back. Grabbed my flag. Threw it on the floor, and from right there he got up. He go
`
`out of my car. Close the door. Told the tow truck, ‘Get it out of here.’” (Id. at 89:12–90:1.)
`
`2
`
`

`
`Case 3:10-cv-00879-JBA Document 43 Filed 09/23/11 Page 3 of 8
`
`Mr. Bossie also testified that when he went to pick up his car after it was towed, his flag “was
`
`on the floor with a boot footprint on it and broke—with the stick broke.” (Id. at 78:11–14.)
`
`Although Mr. Bossie did not originally claim that he saw Trooper Houle break the
`
`flag’s stick, only that Houle threw it on the floor, he later stated during his deposition that
`
`he recalled seeing Houle break the stick before throwing the flag. (Id. at 100:20–102:15.)
`
`Mr. Bossie did not hear Trouper Houle say anything about his Puerto Rican heritage at the
`
`accident scene. (Bossie Dep. at 91:5–92:5.)
`
`Mr. Bossie states in his affidavit:
`
`The Defendant Michael J. Houle did not legitimately investigate the motor
`vehicle accident which is a subject of this case. . . . He falsified all the
`narrative parts of the Police Report. I also saw him throw parts of my car
`around the roadway, and kick parts of my car in the roadway. I also saw him
`forcibly tear, brake[sic], and remove a Puerto Rican flag that I had legally
`adhered to rear part of my motor vehicle.
`
`(Bossie Aff. ¶ 4.)
`
`Trooper Houle avers that at no point during the investigation did he “laugh or point
`
`at Mr. Bossie . . . , say or do anything that reflect on Mr. Bossie’s race or ethnic status . . . ,
`
`[or] consider the race or ethnic status of any of the parties in discharging my
`
`responsibilities.” (Houle Aff. ¶¶ 13–14.) He concluded based on his investigation that Mr.
`
`Bossie violated Conn. Gen. Stat. § 14-236, failure to drive in an established lane, and cited
`
`Mr. Bossie for the violation. (Id. ¶ 12; Accident Report at 3.) Mr. Bossie entered a plea of
`
`nolo contendere to that charge. (Bossie Aff. ¶ 5.)
`
`3
`
`

`
`Case 3:10-cv-00879-JBA Document 43 Filed 09/23/11 Page 4 of 8
`
`II.
`
`Discussion1
`
`Although it is unclear from Mr. Bossie’s second amended complaint or his
`
`memorandum in opposition to Defendant’s motion to dismiss under what substantive
`2
`
`constitutional or statutory law Mr. Bossie seeks relief pursuant to 42 U.S.C. § 1983, his
`
`counsel clarified at oral argument that he claims Defendant violated Section 601 of Title VI
`
`of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the First Amendment.
`
`A.
`
`Title VI
`
`Section 601 of Title VI provides: “No person in the United States shall, on the
`
`ground of race, color, or national origin, be excluded from participation in, be denied the
`
`benefits of, or be subjected to discrimination under any program or activity receiving
`
`Federal financial assistance.” 42 U.S.C. § 2000d.
`
`Mr. Bossie’s Title VI claim against Trooper Houle necessarily fails as a matter of law
`
`because Title VI does not provide for individual liability, only liability against entities that
`
`receive federal financial assistance. Chance v. Reed, 538 F. Supp. 2d 500, 511 (D. Conn. 2008)
`
`(citing Albra v. Advan, Inc., 490 F.3d 826, 831 (11th Cir. 2007); Kelly v. Rice, 375 F. Supp. 2d
`
` “Summary judgment is appropriate where, construing all evidence in the light most
`1
`favorable to the non-moving party,” Pabon v. Wright, 459 F.3d 241, 247 (2d Cir. 2006), “the
`pleadings, the discovery and disclosure materials on file, and any affidavits show that there
`is no genuine issue as to any material fact and that the movant is entitled to judgment as a
`matter of law,” Fed. R. Civ. P. 56(c)(2). An issue of fact is “material” if it “might affect the
`outcome of the suit under the governing law,” and is “genuine” if “a reasonable jury could
`return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477
`U.S. 242, 248 (1986). “Unsupported allegations do not create a material issue of fact.”
`Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
`
` On February 22, 2011, Mr. Bossie’s counsel filed only a Local Rule 56(a)2 Statement
`2
`and Affidavit in response to Defendant’s motion for summary judgment, but after being
`granted leave by the Court, filed his memorandum in opposition on September 7, 2011.
`
`4
`
`

`
`Case 3:10-cv-00879-JBA Document 43 Filed 09/23/11 Page 5 of 8
`
`203, 208 (S.D.N.Y. 2005); Jackson v. Univ. of New Haven, 228 F. Supp. 2d 156, 158 n.4 (D.
`
`Conn. 2002)). Additionally, by its terms, Section 601 refers to exclusion from, denial of the
`
`benefits of, or discrimination under a federally–funded program. In order to successfully
`
`maintain a claim under Title VI, Plaintiff must be able to demonstrate a nexus between the
`
`federal funds provided to the program at issue and the particular activity of the program
`
`about which he complains. See Assoc. Against Discrimination in Emp’t, Inc. v. City of
`
`Bridgeport, 647 F.2d 256, 276 (2d Cir. 1981) (“[F]or a claimant to recover under Title VI
`
`against an employer for discriminatory employment practices, a threshold requirement is
`
`that the employer be the recipient of federal funds aimed primarily at providing
`
`employment.”). Mr. Bossie alleges that Trooper Houle discriminated against him in the
`
`performance of his motor–vehicle accident investigation duties as a state trooper and his
`
`counsel stated at oral argument that he assumes that the Department of Public Safety
`
`receives some form of federal aid. However, he offers no evidence that any federal funds that
`
`may be provided to the Department of Public Safety are aimed at or concern Trooper
`
`Houle’s actions in this case, i.e. the investigation and reporting of traffic accidents.
`
`Accordingly, because Mr. Bossie brings this case against Trooper Houle and not a
`
`program that receives federal financial assistance, Defendant is entitled to summary
`
`judgment in his favor on Mr. Bossie’s Title VI claim.
`
`B.
`
`First Amendment
`
`Mr. Bossie claims that by removing the Puerto Rican flag from the back speaker of
`
`his car, breaking its stick, and throwing it to the ground, Trooper Houle violated his First
`
`Amendment right to free speech in the expression of pride in his Puerto Rican heritage.
`
`5
`
`

`
`Case 3:10-cv-00879-JBA Document 43 Filed 09/23/11 Page 6 of 8
`
`Even interpreting the facts in the light most favorable to Mr. Bossie, his First Amendment
`
`claim fails as a matter of law.
`
`The display of a flag constitutes political speech protected under the First
`
`Amendment. See Spence v. Washington, 418 U.S. 405, 410 (1974); see also Barr v. Lafon, 538
`
`F.3d 554, 569 n.7 (6th Cir. 2008) (“[T]he display of the Confederate flag by a student
`
`constitutes political speech that is protected under the First Amendment.”); American Legion
`
`Post 7 of Durham, N.C. v. City of Durham, 239 F.3d 601, 607 (4th Cir. 2001) (“[T]he
`
`[American] Legion’s avowed attempt to demonstrate intensity of patriotic feeling by flying
`
`a very large flag implicates First Amendment interests.”). It appears from Mr. Bossie’s
`
`second amended complaint and his counsel’s comments at oral argument that he claims
`
`Trooper Houle restricted his speech on the basis of viewpoint by removing the Puerto Rican
`
`flag in a disrespectful manner. His claim does not fit the normal contours of a First
`
`Amendment claim based on the display of a flag or other political imagery, however, because
`
`he does not allege that Trooper Houle acted pursuant to any statute or regulation that
`
`restricted Mr. Bossie’s ability to express himself through the symbolism of his Puerto Rican
`
`flag or that Trooper Houle or any regulation prevented him from displaying his flag after
`
`retrieving his vehicle. Cf. Sons of Confederate Veterans, Inc. v. Commissioner, 288 F.3d 610,
`
`626 (4th Cir. 2002) (Virginia statute restricting members of the Sons of Confederate
`
`Veterans from receiving special license plates bearing the confederate flag, in contrast to
`
`other Virginia statutes that authorized special plates for other organizations, was viewpoint
`
`discrimination in violation of the First Amendment).
`
`In essence, what Mr. Bossie complains about in alleging that Trooper Houle removed
`
`and disrespected his Puerto Rican flag is Trooper Houle’s implied expression of disdain
`
`6
`
`

`
`Case 3:10-cv-00879-JBA Document 43 Filed 09/23/11 Page 7 of 8
`
`towards his Puerto Rican heritage as shown through his treatment of the flag. However,
`
`even taking the facts according to Mr. Bossie’s version of the events, Plaintiff fails to show
`
`that Trooper Houle’s behavior restrained or chilled Mr. Bossie’s speech on the basis of his
`
`viewpoint in any way. Cf. Byrne v. Rutledge, 623 F.3d 46, 55 (2d Cir. 2010) (government
`
`may not “regulate speech in ways that favor some viewpoints or ideas at the expense of
`
`others”) (internal quotations and citations omitted). Mr. Bossie does not claim that Trooper
`
`Houle prevented him from displaying the flag after he retrieved his vehicle, fined or
`
`punished him for displaying the flag, or threatened him in such a way that would have
`
`prevented him from displaying the flag in the future. Nor does he allege that Trooper
`
`Houle’s actions somehow chilled or deterred him from expressing his Puerto Rican pride by
`
`reaffixing his flag. Although Mr. Bossie may have been deeply offended by what he
`
`perceived as the desecration of his flag and a statement regarding his Puerto Rican heritage,
`
`the impropriety of such a statement does not constitute the regulation of his speech or a
`
`prior restraint on his speech, and nothing in the factual record demonstrates that Trooper
`
`Houle’s actions chilled, deterred, or otherwise influenced Mr. Bossie’s ability to express his
`
`viewpoint. Defendant is therefore entitled to summary judgment in his favor on Mr.
`
`Bossie’s First Amendment claim.
`
`7
`
`

`
`Case 3:10-cv-00879-JBA Document 43 Filed 09/23/11 Page 8 of 8
`
`III.
`
`Conclusion
`
`For the reasons stated above, Defendant’s motion [Doc. # 31] for summary judgment
`
`is GRANTED. The Clerk is directed to close this case.
`
`IT IS SO ORDERED.
`
`/s/
`Janet Bond Arterton, U.S.D.J.
`
`Dated at New Haven, Connecticut this 23rd day of September, 2011.
`
`8