303 F.Supp.2d 213 (2004) | Cited 8 times | D. Connecticut | February 20, 2004


Plaintiff Jose Galazo brings this action for money damages againstdefendants the City of Waterbury, Kevin Daly, Jr., Simon DelBuono, MartinToma, Michael Pieksza, Jr., Mark Santopietro, James Nardozzi, CharlesSampson, and Gary Pelosi based upon the Fourteenth Amendment to theUnited States Constitution and 42 U.S.C. § 1983. Defendants the Cityof Waterbury, Santopietro, Nardozzi, Sampson, and Pelosi (hereinafter"defendants") have filed a motion for summary judgment (dkt. # 43),which, for the reasons set forth herein, is GRANTED in part andDENIED in part.


Galazo is a resident of Waterbury, Connecticut. At all times relevantto his complaint, Galazo was employed as a dishwasher and preparationcook at The Brass Horse Bar ("Brass Horse"), which is located inWaterbury, Connecticut. DefendantsPage 2DelBuono, Toma, and Pieksza are interest-holders in M.P.S.D.M.T.,LLC, which owned the Brass Horse during the relevant time period.Santopietro, Sampson, Pelosi, and Nardozzi were police officers employedby the City of Waterbury, and Daly was a Police Legal Advisor to theWaterbury Police Department.

On March 17, 1999, an incident occurred between Galazo and certaindefendants. March 17, 1999 was St. Patrick's Day, and several off-dutyWaterbury police officers were present at the Brass Horse as patrons. Inthe evening of that day, Galazo was in the kitchen slicing corned beefwhen Pieksza entered the kitchen and slapped Galazo. When Galazoconfronted Pieksza, Pieksza told Galazo that, if Galazo did not approve,Galazo could "get the hell out of my kitchen." Galazo then left the BrassHorse, and Pieksza soon followed Galazo. Pieksza, who was accompanied byother men, called out to Galazo. Galazo turned to face Pieksza, but thenresumed walking away from the Brass Horse. As Galazo was walking away,Pieksza punched Galazo in the back of the head. The other men1 withPieksza, including Sampson, and, according to Galazo, Santopietro, alsojoined the altercation against Galazo.

Galazo managed to free himself from the fray and then ran toPage 3a nearby police car. Upon reaching the police car, Galazo wasbeaten by the two officers who were in the cruiser.2 Following thisencounter, Galazo leaned on a wall near the Brass Horse, where hisoriginal assailants were also present, and some of the originalassailants produced police identification to uninvolved individualsmulling about the scene. Galazo was then handcuffed, placed in the policecruiser, and taken to the police station.

Criminal charges were brought against Galazo arising from thisincident. On May 19, 1999, the prosecution entered nolleprosequi on the charges against Galazo. On July 23, 1999, Galazo'scounsel requested that the City of Waterbury Police Department providehim with all records concerning Galazo pursuant to the Freedom ofInformation Act. On September 16, 1999, Daly responded by stating thatthe records could not be released because the criminal charge was subjectto being reopened.

Galazo testified that, some time after the incident, Nardozzi andPelosi contacted him regarding the incident. Galazo testified that hecontacted the Mayor of Waterbury regarding the incident. According toGalazo, Nardozzi came to Galazo's house about an hour and a halffollowing Galazo's call to the mayor. Galazo alleges that Nardozziinstructed Galazo to "Stay off thePage 4phones," and then stated that Nardozzi had two checks in hispossession for Galazo from the Brass Horse, but that the only way Galazowould get the checks would be if he kept quiet. Galazo also testifiedthat Nardozzi stated to Galazo that "You have one in the well with us."Galazo also testified that Pelosi called Galazo's home and threatenedGalazo's financee, Sheri Roy.


Galazo brings this action pursuant to the Fourteenth Amendment and42 U.S.C. § 1983. The Complaint sets forth the following claims: (1)excessive force during the course of an arrest; (2) false arrest; (3)malicious prosecution; (4) violation of Galazo's substantive due processrights;3 (5) denial of the right of access to the courts; (6)intentional infliction of emotional distress; and (7) assault andbattery. Defendants argue that Galazo cannot, as a matter of law, prevailon his claims against them.


A motion for summary judgment may be granted "if the pleadings,depositions, answers to interrogatories, and admissions on file, togetherwith the affidavits, if any, show that there is no genuine issue ofmaterial fact and that the moving party is entitled to judgment as amatter of law." Fed.Page 5R. Civ. P. 56(c). Summary judgment is appropriate if, afterdiscovery, the nonmoving party "has failed to make a sufficient showingon an essential element of [its] case with respect to which [it] has theburden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986). "The burden is on the moving party `to demonstrate the absence ofany material factual issue genuinely in dispute.'" American Int'lGroup, Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir.1981) (quoting Heyman v. Commerce & Indus. Ins. Co.,524 F.2d 1317, 1319-20 (2d Cir. 1975)). A dispute concerning a material factis genuine "`if evidence is such that a reasonable jury could return averdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch.Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must viewall inferences and ambiguities in a light most favorable to the nonmovingparty. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). "Only when reasonable minds could not differ as to the import ofthe evidence is summary judgment proper." Id.


Galazo claims that the City of Waterbury should be held liable for theactions of its employees. "A municipal entity may be liable under42 U.S.C. § 1983 only if the alleged constitutional violation was causedby the entity's `policy or custom.'" Monell v. Dep't of SocialServs., 436 U.S. 658, 694Page 6(1978). Thus, in order to prevail against a municipality, aplaintiff cannot simply rest on the actions of the municipality'semployees. Instead, a plaintiff must show that any constitutionaldeprivation suffered by him was the result of a custom, policy, orpractice of such conduct within the municipality. Id. The Cityof Waterbury argues that there is no evidence in the record of a custom,policy or practice that caused the constitutional violations alleged inthe complaint. Galazo has offered no evidence that the City of Waterburyhad a custom, policy or practice in effect that caused the deprivationsof his constitutional rights alleged in the complaint. Given the absenceof any evidence in this regard, the City of Waterbury is entitled tojudgment as a matter of law on all claims against it.


Defendants argue that, because they were present at the Brass Horsewhile they were off-duty for the purpose of socializing, they did not actunder the color of law during the altercation with Galazo. The phrase"under the color of law" means "`under "pretense" of law' and that `actsof officers in the ambit of their personal pursuits are plainlyexcluded.'" Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994)(quoting Screws v. United States, 325 U.S. 91, 111 (1945)). Indetermining whether an officer was acting under the color of law, "courtslook to the nature of the officer's act, not simply hisPage 7duty status." Id.

There is evidence in the record that could allow the factfinder toconclude that the defendants who were involved in the altercation withGalazo were acting under the color of law. Specifically, defendants offerthe Incident and Offense Report, in which the writer of the reportrecounts that Pieksza, knowing that the writer was a police officer,asked the writer to intercede in an employment dispute with Galazobecause Galazo was becoming agitated. The tone of the report suggeststhat the officer was interceding in the dispute between Galazo andPieksza as a police officer, despite the fact that he or she was off-dutywhile at the Brass Horse. Police intercession prior to the altercationcould be enough to support the conclusion that the altercation wasdirectly related to the police intercession and that the officers actedwith the imprimatur of official authority when they engaged in thealtercation. Therefore, defendants' motion must be denied regardingGalazo's excessive force claim.

Certain defendants named in the complaint also argue that they may notbe held liable for using excessive force on Galazo because they were notpresent at the Brass Horse at the time of the incident on March 17, 1999.Santopietro states that he was in Florida on the night in question. Hehas also submitted a travel itinerary in his name indicating that he wasto depart Hartford on March 10, 1999 and arrive back in Hartford on MarchPage 822, 1999, and a record of a parking ticket, which he paid, from theCity of Key West, Florida, which was issued on March 13, 1999. Galazotestified that Santopietro was present at the Brass Horse on March 17,1999. The resolution of conflicting testimony is an issue for the trierof fact, and the court cannot find that Santopietro was not a participantin the altercation on March 17, 1999.4

Nardozzi also alleges that he was not present at the Brass Horse at thetime of the incident on March 17, 1999. Galazo admits Nardozzi'scontention. However, Galazo argues that Nardozzi should be held liablefor the use of excessive force on March 17, 1999 on account of his goingto Galazo's home with the two checks and suggesting to Galazo that thepolice would look favorably upon Galazo's silence regarding the incident.On the record before the court, there is no way that Nardozzi's conduct,which occurred some time after the March 17, 1999 incident, could bedeemed to have caused the use of excessive force upon Galazo on March 17,1999. Nor could Nardozzi be deemed to have ratified or allowed the use offorce upon Galazo on March 17, 1999. Therefore, Nardozzi cannot be heldliable for the use of excessive force on Galazo.Page 9


Defendants contend that Galazo has not named the officer or officerswho placed him under arrest as defendants in this action. As such,defendants argue, Galazo cannot, as a matter of law, prevail on his claimof false arrest. However, it is not clear from the record the extent towhich defendants who were present at the scene on March 17, 1999participated in the arrest. Therefore, defendants have not met theirburden of demonstrating that there is no material issue for trial on thisclaim.


"In order to prevail on a § 1983 claim against a state actor formalicious prosecution, a plaintiff must show a violation of his rightsunder the Fourth Amendment . . . and establish the elements of amalicious prosecution claim under state law. . . ." Fulton v.Robinson, 289 F.3d 188, 195 (2d Cir. 2002). Under Connecticut law, aplaintiff seeking to recover for malicious prosecution must prove thefollowing: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice.McHale v. W.B.S. Corp., 187 Conn. 444, 447 (1982).

Defendants argue that Galazo may not prevail on his claim ofPage 10malicious prosecution because the criminal proceedings against himdid not terminate in his favor. On May 18, 1999, the prosecution nolledthe criminal charge against Galazo. The entry of nolle prosequiin a criminal case is "except when limited by statute or rule ofpractice . . .; a unilateral act by a prosecutor, which ends the `pendingproceedings without an acquittal and without placing the defendant injeopardy.'" Cislo v. City of Shelton, 240 Conn. 590, 599 n.9(1997) (quoting State v. Lloyd, 185 Conn. 199, 201 (1981)).

"Where a prosecution did not result in an acquittal, it is generallynot deemed to have ended in favor of the accused, for purposes of amalicious prosecution claim, unless its final disposition is such as toindicate the accused's innocence." Fulton, 289 F.3d at 196. "Inthe absence of a decision on the merits, the plaintiff must show that thefinal disposition is indicative of innocence." Russell v.Smith, 68 F.3d 33, 36 (2d Cir. 1995). The Connecticut Supreme Courthas stated the following regarding the effect of the entry of nolleprosequi in a criminal case upon a subsequent action for maliciousprosecution:

It is not necessary that the accused should have been acquitted. It is sufficient if he was discharged without a trial under circumstances amounting to an abandonment of the prosecution without request from or by arrangement with him. . . . Such a termination of the prosecution is sufficient ground for the institution of the action, but it does not, of itself, establish want of probable cause or malice, which arePage 11 to be determined at the trial upon all the facts.

See v. Gosselin, 133 Conn. 158, 160 (1946); seeCislo, 240 Conn. at 609. In light of the Connecticut Supreme Court'sarticulation of the effect of the entry of nolle prosequi in anunderlying criminal prosecution upon a plaintiff's ability to state aclaim for malicious prosecution, the court cannot find that Galazo maynot prevail upon his claim of malicious prosecution.


Galazo claims that Daly impeded his access to this court by unlawfullyrefusing to produce, in response to Galazo's counsel's Freedom ofInformation Act request, the police records from the March 19, 1999incident. There is a constitutional right, derived from the First andFourteenth Amendments to the U.S. Constitution, to seek redress forgrievances from the Government in the judicial system. See Friedl v.City of New York, 210 F.3d 79, 86 (2d Cir. 2000). "Theconstitutional right of access is violated where government officialsobstruct legitimate efforts to seek judicial redress." Whalen v.County of Fulton, 126 F.3d 400, 406 (2d Cir. 1997); see Barrettv. U.S., 798 F.2d 565, 575 (2d Cir. 1986) ("Unconstitutionaldeprivation of a cause of action occurs when government officials thwartvindication of a claim by violating basic principles that enable civilclaimants to assert their rights effectively.").

Defendants correctly point out that Galazo's claim suffersPage 12from the same infirmity as that present in a case decided by theCourt of Appeals for the Seventh Circuit, captioned Thompson v.Boggs, 33 F.3d 847 (7th Cir. 1994). In Thompson, the Courtof Appeals affirmed the district court's dismissal of the plaintiff'sclaim of denial of access to the courts. See id. at 853. TheCourt of Appeals reasoned that the defendants could not have concealed orotherwise prevented the plaintiff from discovering the true facts thatwould support an actionable claim against them because the plaintiff waspresent during the entire incident, and therefore had ample access to thefacts necessary to file an actionable claim. See id. at 852("[T]he plaintiff Thompson herein was not deprived of adequate,effective, or meaningful access to the courts because he was personallyinvolved in the incident and thus had firsthand knowledge of all thefacts and circumstances surrounding his arrest."). Here, Galazo waspresent during the entire incident, and Daly could not, as a matter oflaw, have prevented Galazo from seeking meaningful redress in court forthe actions of the other defendants. Daly is entitled to judgment as amatter of law on Galazo's claim that Daly denied Galazo access to thecourts.


Defendants' sole basis for requesting judgment in their favor onGalazo's state law claims is that Galazo has failed to present actionablefederal claims. Because the court will notPage 13enter judgment in favor of defendants on all of Galazo's federalclaims at this time, defendants' motion for summary judgment on Galazo'sstate law claims must be denied.


For the reasons stated herein, defendants' motion for summary judgment(dkt. # 43) is GRANTED in part and DENIED in part. This matteris referred to the Honorable Thomas P. Smith, United States MagistrateJudge, for the purpose of conducting a settlement conference. The partiesshall file their joint trial memorandum on or before April 30,2004.


1. Galazo stated that a total of six men, including Pieksza,assaulted him outside the Brass Horse. Contrary to Galazo's LocalRule 9(c)2 statement, Galazo testified that Pelosi was not present during theincident at the Brass Horse. (See Dkt. # 43, Ex. 1 at40:12-14).

2. Galazo has not asserted any claims against the two officers fromthe police cruiser.

3. The papers submitted to the court do not discuss this claim.

4. Although the court cannot resolve this issue at this time, theparties are urged to ascertain whether there is any good faith basis topursue a claim against Santopietro further.

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