390 F.Supp.2d 120 (2005) | Cited 13 times | D. Connecticut | August 29, 2005


The plaintiff, Randall Holman, brought this action against thedefendants, John Cascio and Michael D'Amato, two police officersof the Town of East Haven, Connecticut, pursuant to42 U.S.C. § 1983. The defendants are sued only in their individualcapacities. The complaint sets forth claims for false arrest andmalicious prosecution in violation of the Fourth Amendment to theUnited States Constitution. This opinion considers thedefendants' motion for summary judgment.

I Background

The following facts are undisputed: On October 29, 1997, Holmanwas arrested by the defendants at a nursing home in East Havenand charged with the state offenses of breach of peace, criminaltrespass in the first degree and interfering with a policeofficer. The officers arrested Holman without an arrest warrant.In October 2000, those charges were nolled1 by an Assistant State's Attorney in the Connecticut Superior Court.Holman's false arrest claim arises from the October 29, 1997arrest, and his malicious prosecution claim arises from theresulting prosecution.

II Summary Judgment Standard

In a summary judgment motion, the burden is on the moving partyto establish that there are no genuine issues of material fact indispute and that it is entitled to judgment as a matter of law.See Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 256 (1986). A court must grant summary judgment "if thepleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if any, showthat there is no genuine issue as to any material fact." CelotexCorp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R. Civ.P. 5(c)); accord Miner v. Glen Falls, 999 F.2d 655, 661 (2dCir. 1993). A dispute regarding a material fact is genuine "ifthe evidence is such that a reasonable jury could return averdict for the nonmoving party." Anderson, 477 U.S. at 248.Thus, "[o]nly when reasonable minds could not differ as to theimport of the evidence is summary judgment proper." Bryant v.Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).

III Discussion

The defendants seek summary judgment on both the maliciousprosecution and false arrest claims.

A) Malicious Prosecution

The complaint alleges that the defendants submitted a falsewritten report to the State's Attorney Office concerning theevents of October 29, 1997, to support their view that Holman hadcommitted the charged offenses. As a result, Holman claims thathe was unlawfully prosecuted for a period of almost three yearsin the Connecticut Superior Court. The defendants seek summaryjudgment on Holman's malicious prosecution claim, arguing thatHolman cannot demonstrate that the underlying criminalprosecution terminated in his favor because those charges werenolled by the prosecutor.

It is well settled that, in order to prevail on a § 1983 claimagainst a state actor for malicious prosecution, a plaintiff mustshow a violation of his rights under the Fourth Amendment andestablish the elements of a malicious prosecution claim understate law. Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002); Christman v. Kick, 342 F.Supp.2d 82, 91 n. 9 (D.Conn.2004); Romagnano v. Town of Colchester, 354 F.Supp.2d 129, 136(D.Conn. 2004); see also Washington v. County of Rockland,373 F.3d 310, 315 (2d Cir. 2004) (While § 1983 affords plaintiffsa federal cause of action, courts generally "borrow the elementsof the underlying malicious prosecution from state law"). Toprevail upon a malicious prosecution claim under Connecticut law,a plaintiff must prove the following elements: (1) the defendantsinitiated or procured the institution of criminal proceedingsagainst the plaintiff; (2) the criminal proceedings terminatedin favor of the plaintiff; (3) the defendant acted withoutprobable cause; and (4) the defendant acted with malice,primarily for a purpose other than that of bringing an offenderto justice. QSP, Inc. v. Aetna Casualty & Surety Co.,256 Conn. 343, 360 n. 16, 773 A.2d 906 (2001). McHale v. W.B.S. Corp., 187 Conn. 444, 447,446 A.2d 815 (1982); Vandersluis v. Weil, 176 Conn. 353, 356,407 A.2d 982 (1978); Romagnano, 354 F.Supp.2d at 136 (citingcases). The pending motion for summary judgment only challengesHolman's ability to meet the second element, whether the nolle ofhis charges resulted in a favorable termination. The effect of anolle on this element has been recognized as a vexing question inmany reported decisions, and arises frequently in § 1983 actionsfor malicious prosecution.

In See v. Gosselin, 133 Conn. 158, 159, 48 A.2d 560 (1946),the Connecticut Supreme Court addressed the question of whetherthe "plaintiff's complaint contains a sufficient allegation ofthe termination of the criminal proceedings in his favor" in anaction for malicious prosecution brought by Harold See. It wasalleged that the prosecutor nolled the criminal case after theState's witnesses testified, and without a request for the nollefrom See. The Court noted that "[i]t is generally held that theplaintiff must allege and prove that the criminal actionterminated in his favor, either by his acquittal or in some othermanner equivalent thereto." Id. (emphasis added). In holdingthat the allegations of the circumstances of the nolle satisfiedthat test, and in reversing the trial court's dismissal, theConnecticut Supreme Court explained: When we made `discharge' a condition of bringing an action of malicious prosecution, it signified the termination of the particular prosecution. 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.Id. at 160. More recently, the Connecticut Supreme Court alsorejected a narrow interpretation of the "favorable termination"element in the context of a vexatious litigation claim (thecounterpart to malicious prosecution, where the underlying actionwas a civil suit rather than a criminal prosecution), andclarified that: Notwithstanding our recitation of the term `favorable termination' (emphasis added) in Vandersluis [176 Conn. 353] and a few other cases . . . we have never required a plaintiff in a vexatious suit action to prove a favorable termination either by pointing to an adjudication on the merits in his favor or by showing affirmatively that the circumstances of the termination indicated his innocence or nonliability, so long as the proceeding has terminated without consideration.

DeLaurentis v. City of New Haven, 220 Conn. 225, 251,597 A.2d 807 (1991); see also Russo v. City of Hartford,184 F.Supp.2d 169, 186 (D.Conn. 2002) ("The DeLaurentis court proceeded todistance Connecticut law from a strict interpretation of`favorable termination'"); Thayer v. Electro-Methods, Inc.,2004 Wl 3105966 at *5 (Conn.Super.Ct., Dec 7, 2004) ("OurSupreme Court has not adopted a strict interpretation of`favorable termination'").

In determining whether the element of "favorable termination"of a malicious prosecution action has been satisfied,dispositions of criminal cases other than through an acquittalhave received considerable attention from the ConnecticutSuperior Court and the federal courts. See, e.g., Roesch v.Otarola, 980 F.2d 850, 853-54 (2d Cir. 1992) (discussing whethera criminal case was favorably terminated when the defendantreceived accelerated rehabilitation under Connecticut law). Theeffect of a nolle by a prosecutor has received the mostattention, and some decisions state that the entry of a nollecannot be the basis for a plaintiff to satisfy the "favorabletermination" element of a malicious prosecution claim. SeeSimpson v. Denardo, 2004 WL 1737444 (D.Conn., July 29, 2004)("A nolle prosequi does not qualify as a favorable terminationfor purposes of a malicious prosecution claim"); Walsh v.Souza, 2004 WL 717169 (D.Conn. May 25, 2004) ("A nolleprosequi is not a favorable termination of the type required tosupport a malicious prosecution claim"). The majority ofdecisions applying Connecticut law, however, hold that a nolle ofthe criminal charge may still permit the plaintiff to satisfythat element if the circumstances of the nolle satisfy the See v. Gosselin test of"an abandonment of the prosecution without request from or by anarrangement with [the defendant]." More specifically, thedecisions hold that a nolle will preclude a subsequent case formalicious prosecution when it was made as part of a plea bargainor under other circumstances that indicate that the defendantreceived the nolle in exchange for providing something of benefitto the state or victim.2 For example, if some chargeswere nolled in exchange for a guilty plea to another offense,those nolled charges could not be the basis for a subsequentmalicious prosecution claim. If, however, a charge was nolled bythe prosecutor without the request of the defendant, that couldsatisfy the element if the circumstances of the nolle indicatedan "abandonment of the prosecution." The factual circumstancessurrounding the nolle are material and when disputed, must beresolved by the trier of fact. See, e.g., Jackson v. Smith,35 Conn. L. Rptr. 72, 2003 WL 21771938 (Conn.Super.Ct., Jul 14,2003) (nolle, which was conditioned on future noncontact betweenthe defendant and the victim, was not sufficient to constitute a"favorable" termination under See v. Gosselin); Cislo v.Pitman, 1997 WL 276410 (Conn.Super.Ct., May 15, 1997) (denyingmotion to set aside a malicious prosecution verdict in favor ofthe plaintiff on the ground that the underlying criminal case wasnot resolved in the plaintiff's favor: "Here the charges werenolled. They were not [n]olled at the instigation of theplaintiff, they were apparently nolled because the complainant did not appear in court. The latter fact alonesuggests that the failure to proceed implies a lack of reasonablegrounds for the prosecution" [quotations omitted]); Sabir v.Jowett, 214 F.Supp.2d 226, 240-41 (D.Conn. 2002) (nolles inseparate criminal case could satisfy the "favorable termination"element if unconnected to case in which plea bargain occurred);Russo, 184 F.Supp.2d at 186 (motion to dismiss maliciousprosecution claim denied when underlying criminal case"terminated based on a suppression issue with no indication of[the plaintiff's] guilt"); see also Haynes v. City of NewLondon, 2002 WL 1204956 at *2 (D.Conn., May 17, 2002) (summaryjudgment as to false arrest claim denied where facts disputed asto the circumstances surrounding the nolles").

Context matters, of course. The mere allegation of a nolle in acomplaint may be enough to withstand a motion to dismiss underFed.R.Civ.P. 12(b)(6), as the plaintiff would be able to latermeet the See v. Gosselin test with evidence of thecircumstances of the nolle. However, when faced with a motion forsummary judgment under Fed.R.Civ.P. 56, the plaintiff mustpresent some evidence that the circumstances of the nolle meetthat test. Because the plaintiff has the burden of proof on thiselement, not providing evidence of such circumstances will befatal, as the nolle itself — without more — is insufficient tocreate a genuine issue of material fact of "circumstancesamounting to an abandonment of the prosecution without requestfrom or by arrangement with him." See v. Gosselin,133 Conn. at 160.3

In this action, the plaintiff agreed in his Local Rule 56statement that the charges were nolled. (¶ 2 of Plaintiff's Local Rule 56(a)(2) statement and ¶ 1of the Plaintiff's "Claims of Fact"). A portion of theplaintiff's deposition transcript was submitted by thedefendants, and it contains the following colloquy between thedefendants' attorney and the plaintiff: Q: "Okay. Did you have a trial on any of these charges?" A: "No." Q: "What ultimately happened with the charges? Did you plea bargain out?" A: "No." Q: "Were they nolled." A. "Yes." Q: "And when were they nolled?" A: "It was at least two years later."Although a close call, the plaintiff's deposition testimonythat the nolles were not entered as part of a plea bargain, andthat the nolles were entered over two years after his arrest, isenough to withstand a motion for summary judgment. The plaintiffhas created a genuine issue of material fact whether his case wasfavorably terminated, one that a trier of fact must resolve.See Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 131(2d Cir. 1997) ("Where . . . the reasons for a dismissal ofcharges are in dispute, the matter should ordinarily be submittedto a jury") (citing Rounseville v. Zahl, 13 F.3d 625, 629 (2dCir. 1994)).

Accordingly, the motion for summary judgment as to themalicious prosecution claim is denied.

B) False Arrest

The complaint also alleges that the defendants, acting undercolor of law, violated Holman's Fourth Amendment rights byarresting him without probable cause for that arrest. In theirmotion for summary judgment, the defendants contend that Holmancannot maintain this false arrest claim because he cannot provethat the underlying criminal proceedings terminated in his favor.

To establish a claim for false arrest, a plaintiff is requiredto show that "the defendant intentionally confined him withouthis consent and without justification." Weyant v. Okst,101 F.3d 845, 852 (2d Cir. 1996) (false arrest claim brought pursuantto § 1983); accord Green v. Donroe, 186 Conn. 265, 267,440 A.2d 973 (1982) (false arrest claim brought pursuant toConnecticut law); Outlaw v. City of Meriden, 43 Conn.App. 387,392, 682 A.2d 1112, cert. denied, 239 Conn. 946, 686 A.2d 122(1996); Hunter v. City of Bridgeport, 2004 WL 1462459 (Conn.Super. Ct., June 4, 2004).4 Although the Second Circuit,in Roesch, 980 F.2d at 853-54 stated that favorable terminationof the underlying proceedings was an element of a false arrestclaim in Connecticut, that position remains unsettled. See,e.g., Weyant, 101 F.3d at 852 (noting that Connecticut law isless clear on this issue than New York, and that the Court was"not aware of any opinion by Connecticut's highest courtaddressing the issue of favorable termination in the context of aclaim for false arrest where there has been no determination asto guilt"); Conlon v. Ludemann, 283 F.Supp.2d 747, 754 (D.Conn.2003) (noting decisions that have called into question thestatements concerning Connecticut law in Roesch); Whitehorn v.City of Bridgeport, 2004 WL 1576706 at *3 (D.Conn., July 8,2004) (noting the tension between Weyant and Roesch).However, the Court need not resolve this issue at this time,because even if it is an element of a claim for false arrest,summary judgment is not appropriate for the same reason set forthin the previous section of this ruling dealing with the maliciousprosecution claim, namely a genuine issue of material fact as towhether the underlying criminal prosecution was terminated in Holman's favor. Consequently, the Court denies the defendants'motion for summary judgment on Holman's false arrest claim. SeeConlon, 283 F.Supp.2d at 754 (finding genuine issue of materialfact as to circumstances of the entry of a nolle in theunderlying criminal case, and, therefore, whether that case wasterminated in her favor for purposes of her false arrest claim);Haynes, 2002 WL 1204956 at *2 (denying motion for summaryjudgment as to the false arrest claim because "the exactcircumstances and intent behind the nolles are not entirelyclear").

IV Conclusion

For the foregoing reasons, the motion for summary judgment[Doc. #21] is DENIED.


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