Garcia v. Hebert et al

Filing 281

ORDER granting 217 Motion for Summary Judgment; granting 218 Motion for Summary Judgment; granting 220 Motion for Summary Judgment; denying 225 Motion in Limine; denying 227 Motion for Summary Judgment; denying 230 Motion for Summary Judgment; denying 233 Motion for Summary Judgment. Signed by Judge Donna F. Martinez on 3/27/13. (Nichols, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

FORTUNATO GARCIA,
Plaintiff,
v.
ROBERT HEBERT et al.,
Defendants.

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CASE NO. 3:08CV95(DFM)

RULING OF SUMMARY JUDGMENT
Plaintiff Fortunato Garcia brings this action against
police officers and courthouse employees alleging misconduct in
connection with his arrest and prosecution on state criminal
charges.

Pending before the court are plaintiff's Motion in

Limine (doc. #225), defendants' Motions for Summary Judgment
(docs. #217, #218 and #220) and plaintiff's Cross-Motions for
Summary Judgment (docs. #227, #230 and #233).

For the reasons

that follow, plaintiff's Motion in Limine is denied, the
defendants' Motions for Summary Judgment are granted and
plaintiff's Cross-Motions are denied.
I.

Procedural History
Plaintiff commenced this action in January 2008.

#1.)

(Doc.

His Second Amended Complaint alleges deprivations of his

rights under the Fourth, Fifth, Sixth and Fourteenth Amendments
pursuant to 42 U.S.C. § 1983; false arrest, malicious

prosecution, abuse of process under § 1983 and state law; and
defamation and intentional infliction of emotional distress
under state law.

(Doc. #137.)

resolved by way of rulings.

The case has been partially

In June 2008, the court granted

default judgment against defendant Robert Hebert.

(Doc. #39.)

In March 2009, the court dismissed defendant Assistant State's
Attorneys Magdalena Campos and Andrew Wittstein and dismissed
the official capacity claims against defendant Lisa Killiany.
(Docs. #94, #99.)

In April 2009, the court denied plaintiff's

motion for summary judgment against those defendants as moot.
(Doc. #100.)

In December 2009, the Second Circuit affirmed the

rulings of dismissal on interlocutory appeal.

(Doc. #127.)

In

December 2011, the court declined to vacate its ruling of
dismissal as to the official capacity claims against Killiany,
and it dismissed the official capacity claims against defendant
Jane Serafini.

(Docs. #192, #193, #202.)

In April and May

2012, the parties filed the pending cross-motions for summary
judgment, with separate statements of facts from each party
pertaining to each of the six motions.1

In September 2012, they

consented to the authority of the undersigned magistrate judge
pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

(Doc.

#276.)

1

The filings that pertain to the pending motions are
voluminous. See Appendix of Filings by ECF Number.
2

II.

Jurisdiction
Plaintiff brings both federal and state claims.

The court

has original jurisdiction over the federal claims under 28
U.S.C. § 1331.

Because the state-law claims "derive from a

common nucleus of operative fact," United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 725 (1966), and "the values of judicial
economy, convenience, fairness, and comity" militate in favor of
supplemental jurisdiction, Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 (1988), the court exercises supplemental
jurisdiction under 28 U.S.C. § 1367(a).2
III. Undisputed Facts
The following facts are undisputed.

On November 23, 2006,

a Thanksgiving holiday, defendant Robert Hebert went shopping at

2

The court is mindful that "in the usual case in which all
federal-law claims are eliminated before trial, the balance of
factors to be considered under the pendent jurisdiction doctrine
— judicial economy, convenience, fairness, and comity — will
point toward declining to exercise jurisdiction over the
remaining state-law claims." Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 n.7, (1988), quoted in Valencia ex rel. Franco
v. Lee, 316 F.3d 299, 305 (2d Cir. 2003). Here, considerations
of economy, convenience and fairness militate in favor of
supplemental jurisdiction. Discovery is complete, and all
issues are ripe for adjudication. The court has decided a
motion for default judgment and two motions to dismiss, one of
which was relitigated in an interlocutory appeal and motion to
vacate. Plaintiff also filed a prior motion for summary
judgment, which the court denied as moot. There are no novel
questions of state law. See, e.g., Raucci v. Town of Rotterdam,
902 F.2d 1050, 1055 (2d Cir. 1990) (exercising supplemental
jurisdiction where discovery was complete; the court had decided
three dispositive motions; the case was trial-ready; and the
state-law claims involved only settled principles).
3

a Kmart in Torrington with defendant Lisa Killiany.

The two

were married at the time, and Hebert recently had begun working
as a police officer in the Town of Winchester.

(Hebert Dep. at

7; Pl.'s 56(a)(1), doc. #230-1 at ¶2; Killiany's 56(a)(2), doc.
#259 at ¶2.)

A store surveillance video from that day shows

that Hebert reached the cash register at 12:49 p.m.

He handed

his wallet to Killiany, who removed cash, handed it back and
walked away.

Hebert placed his wallet on a side counter and

proceeded to unload the shopping cart.

After the cashier had

scanned all his purchases, Hebert paid with a credit card and
walked away without retrieving his wallet.
#223 at 12:49-51.)

(Kmart Video, doc.

customer in line.

Plaintiff Fortunato Garcia was the next
(Garcia Dep., doc. #222-11 at 105.)

Plaintiff placed his wallet on the main counter in front of him.
Then he took Hebert's wallet from the side counter, placed it on
top of his own wallet and covered it with his hand, concealing
it from the cashier.

(Kmart Video, doc. #223 at 12:52.)

Plaintiff handed cash to the cashier and, when she turned to the
cash register, he put both wallets in his jacket pocket.
Simultaneously, Hebert appeared at the end of the checkout line,
looking all around.

(Kmart Video at 12:52.)

Hebert panicked

because his wallet contained money, credit cards and his police
badge.
do."

He said to Killiany: "I don't know what I'm going to
(Hebert Dep. at 12; Pl.'s 56(a)(1), doc. #230-1 at ¶3;
4

Killiany's 56(a)(2) at ¶3.)

Plaintiff received change from the

cashier and walked away with his receipt and purchases.
Video, doc. #223 at 12:53.)

(Kmart

As plaintiff walked toward the

exit, Hebert and Killiany stopped him and asked in in English,
"Did you see a wallet on the counter?"
walked out of the store.

Plaintiff said "No" and

(Hebert Dep. at 12; Killiany Dep. at

10-11; Garcia Dep. at 105-106.)
Defendant Hebert had only been employed as a police officer
for a short while and was anxious that his employer would "bust
his stones" for losing his badge.

(Hebert Dep. at 13; Pl.'s

56(a)(1), doc. #230-1 at ¶3; Killiany's 56(a)(2) at ¶3.)
could have been written up.

(Hebert Dep. at 29-32.)

He

He

notified the Winchester Police Department, which logged the
incident as "Officer lost wallet."
Log, doc. #233-11.)

(Hebert Dep. at 13; Activity

Hebert then reported the incident to the

Torrington Police Department.

The duty officer was defendant

Officer John Guerrera, who was in his seventh year as a police
officer with the Torrington Police Department.
at 6; Pl. 56(a)(1), doc. #233-1 at ¶ 1.)

(Guerrera Dep.

Officer Guerrera met

Hebert at Kmart, where they viewed a surveillance video of the
incident.

((Pl.'s 56(a)(1), doc. #233-1 at ¶¶2-3; Guerrera's

56(a)(2), doc. #254 at ¶¶2-3; Killiany's 56(a)(1), doc. #219 at
¶¶7-8, Pl.'s 56(a)(2), doc. #229 at ¶¶7-8.)

Officer Guerrera

took the video to the Torrington Police Department, where it was
5

viewed by another police officer.
at ¶4; Killiany's 56(a)(1) at ¶13.)

(Pl.'s 56(a)(1), doc. #230-1
That officer thought he

recognized the man who took the wallet as someone named Weston,
and he went out in a patrol car to look for him.

(Pl.'s

56(a)(1), doc. #233-1 at ¶¶3-4; Guerrera's 56(a)(2), doc. #254
at ¶¶3-4.)
Later that afternoon, plaintiff and a relative brought
Hebert's wallet to the Torrington Police Department.
Killiany and Hebert were there.

Defendants

On seeing plaintiff, Killiany

said "Remember me, motherf---er?"

(Killiany Dep. at 33; Pl.'s

56(a)(1), docs. #233-1 at ¶5, #230-1 at ¶5.)

She was angry and

frustrated because she and Hebert had missed their Thanksgiving
dinner while looking for Hebert's wallet.

(Killiany Dep. at

132; Pl.'s 56(a)(1), doc. #230-1 at ¶21.)

Defendant Officer

Guerrera knew that Killiany worked at the Superior Court in
Bantam because he occasionally delivered paperwork to her
office.

(Pl.'s 56(a)(1), doc. #233-1 at ¶6, Guerrera's 56(a)(2)

at ¶6.)
Plaintiff was wearing the same brown jacket he had worn at
Kmart, with the same maroon cap in his pocket.
he did not speak English.
Spanish.

He stated that

Another policeman spoke with him in

(Incident Report, doc. #222-5 at 2; Guerrera Dep. at

20-21, 26, 36.)

Officer Guerrera was not aware that plaintiff

had made any attempts to return the wallet prior to arriving at
6

the police station.3

(Pl.'s 56(a)(1), doc. #233-1 at ¶8;

Guerrera's 56(a)(2) at ¶8.)
Defendant Officer Guerrera arrested plaintiff on a charge
of larceny in the 6th degree.

(Guerrera's 56(a)(1), doc. #222

at ¶19; Pl.'s 56(a)(1), doc. #233-1 at ¶15.)

Other officers

processed the arrest (Guida Dep. at 62-65; Pl.'s 56(a)(1), doc.
#233-1 at ¶11) and seized a Kmart receipt from plaintiff's
wallet.

(Seizure Inventory, doc. #222-3.)

Hebert signed a

victim statement positively identifying plaintiff as the man
that was in line behind them at Kmart and stating: "I wish to
press charges against this male for the theft of my wallet."
Killiany signed the statement as a witness.

(Doc. #222-6.)

Guerrera worked an extra half-hour after the end of his shift to
complete the investigative paperwork.
Pl.'s 56(a)(1) doc. #233-1 at ¶16.)

(Guerrera Dep. at 54;
Police returned the wallet

to Hebert, and he found nothing missing.

(Pl.'s 56(a)(1), doc.

#230-1 at ¶9; Killiany's 56(a)(2) at ¶9.)

3

Plaintiff alleges that after he left Kmart, he attempted to
return the wallet at a condominium address listed on Hebert's
driver's license. No one answered the door, so plaintiff left a
note with his sister's phone number. On his way home, his
sister informed him that the resident of the condominium had
called to say that he had not lost a wallet. Plaintiff's
relative then telephoned the Winchester Police Department and
reported that plaintiff had found Hebert's wallet. The duty
officer told them to take the wallet to the Torrington Police
Department. (Second Am. Compl., doc. #137 at 4-5.)
7

In a letter to the Torrington police chief dated November
30, 2006, defendant Killiany commended the police officers for
their efforts.

Her letter states:

"I heard several times from

your officers that they wanted to 'help one of their own.'"
(Doc. #233-4.)
On December 4, 2006, plaintiff went to the Bantam
courthouse for his first court date on the larceny charge.
Defendant Killiany worked at the Bantam courthouse in the Family
Services Unit.

(Killiany Dep. at 5-7; Pl.'s 56(a)(1), doc.

#230-1 at ¶1; Killiany's 56(a)(2), doc. #259 at ¶1.)

When she

saw plaintiff, she pointed him out to her friend, Assistant
State's Attorney Magdalena Campos.
at ¶18; Killiany's 56(a)(2) at ¶18.)

(Pl.'s 56(a)(1), doc. #230-1
Attorney Campos conversed

with plaintiff in the vestibule of the prosecutor's office.4
(Campos Dep. at 91-97, 150-53.)
plaintiff left the courthouse.

After the conversation,
(Serafini's 56(a)(1), doc. #217-

1 at ¶5; Pl.'s 56(a)(2), doc. #226 at ¶5.)

As plaintiff was

leaving the courthouse, Killiany told him, "I wish you would say
you were sorry.

I missed my Thanksgiving."

Plaintiff's sister

informed Killiany they had tried to return the wallet to
defendant Hebert's prior residence.

(Killiany Dep. at 69-70,

121; Pl.'s 56(a)(1), doc. #230-1 at ¶17.)
4

Campos testified that she gave plaintiff a continuance date
of January 5, 2007. (Campos Dep. at 150-53). Plaintiff
disputes that testimony.
8

After plaintiff left the building, State's Attorney Campos
called his case in court.

She requested a continuance date, and

Superior Court Judge Richard M. Marano granted it.
12/4/06, doc. #28 at 3-4.)

(Tr.

Defendant Jane Serafini, who was

acting as courtroom clerk that day, marked the court file "NG"
to indicate a plea of not guilty, checked the box for jury
election and wrote "1-5" as the continuance date.

(Court File,

doc. #150 at 6; Serafini's 56(a)(1) at ¶7; Pl.'s 56(a)(2), doc.
#226 at ¶7.)
Serafini had been working as an administrative assistant
for the Superior Court at Bantam for fourteen years.

(Serafini

Dep. at 6-8; Pl.'s 56(a)(1), doc. #227-1 at ¶¶3-4.)

She has no

formal legal education.

(Serafini Aff., #217-4 at ¶2;

Serafini's 56(a)(1), doc. #217-1 at ¶3; Pl.'s 56(a)(2), doc.
#226 at ¶3.)

Her work required her to attend court proceedings

and make notations in the court file of procedural developments.
(Serafini Dep. at 6-8; Pl.'s 56(a)(1), doc. #227-1 at ¶¶3-4.)
Serafini did not witness plaintiff's conversation with Assistant
State's Attorney Campos.

(Serafini's 56(a)(1), doc. #217-1 at

¶5; Pl.'s 56(a)(2), doc. #226 at ¶5.)

When she entered

notations in plaintiff's case file on December 4, 2006, Serafini
assumed that Attorney Campos had informed him of the continuance
date.

It was common practice at the Bantam courthouse for the

state's attorney to meet with a criminal defendant on the first
9

appearance date and give him a continuance date, after which the
state's attorney would announce the continuance date in court in
the defendant's absence.
per week.

This practice occurred multiple times

(Serafini Dep. at 119-29; Wittstein Dep. at 57;

Serafini's 56(a)(1) at ¶¶12-13; Pl.'s 56(a)(2), doc. #226 at
¶¶12-13.)
On January 5, 2007, defendant Serafini again was acting as
courtroom clerk when plaintiff's case was called by Superior
Court Judge Charles D. Gill.

Plaintiff did not appear, and the

judge ordered his rearrest on a charge of failure to appear.
Supervising State's Attorney Andrew Wittstein recommended a
"substantial bond," and the judge set a $5000 cash or surety
bond.5

(Tr. 1/5/07, doc. #28 at 7-8.)

On January 29, 2007, the

order of rearrest and bond was noted in the police blotter of a
local newspaper, the Torrington Register-Citizen.

(Doc. #231-

8.)
On January 10, 2007, defendant Serafini generated an arrest
warrant application on the failure to appear charge.

The

application included a form affidavit stating that "the accused"
was "directed to appear" and "failed to appear . . . when

5

Sometimes when a defendant missed a court appearance,
judges at the Bantam courthouse ordered a warning to be mailed
(called a bail notice) in lieu of immediate rearrest. (Campos
Dep. at 54-56.) Plaintiff alleges that Attorney Wittstein
advocated for rearrest and substantial bond in this case at
Killiany's behest.
10

legally called according to terms of his/her bail bond promise
to appear" and that the court "ordered that a warrant be issued
for the arrest of the accused for failure to appear and set the
following conditions for release."

Serafini filled in

plaintiff's case data including the charge of larceny in the 6th
degree, the date on which he failed to appear (January 5, 2007),
the $5000 cash or surety bond and the new charge of Failure to
Appear in the 2nd degree.
affidavit.

She then dated and signed the

(Arrest Warrant, doc. #150 at 9.)

In a typical

week, Serafini signs ten such affidavits after confirming the
data in the case file, after which a state's attorney signs the
warrant application and submits it to a judge.

(Serafini's

56(a)(1) at ¶20; Pl.'s 56(a)(2), doc. #226 at ¶20.)

On January

11, 2007, a state's attorney signed the application portion of
the document, and Judge Marano signed the warrant.
at 9.)

(Doc. #150

Plaintiff was arrested and charged with failure to

appear in the 2nd degree.

(Serafini's 56(a)(1) at ¶22; Pl.'s

56(a)(2), doc. #226 at ¶22.)
On March 1, 2007, at a hearing before Judge Marano at which
defendant Serafini was acting as courtroom clerk, plaintiff
argued through counsel that he had not been arraigned properly.
At the judge's request, Serafini read her notations from the
court file.

State's Attorney Wittstein then explained that

plaintiff had not physically appeared before a judge on December
11

4, 2006 but instead had spoken to Attorney Campos, who gave
plaintiff a continuance date.

Judge Marano asked Serafini to

read the charges, took plaintiff's not-guilty pleas and jury
election and set a continuance date.

(Tr. 3/1/07 at 9-10, 13.)

On April 17, 2007, at his next appearance before Judge
Marano, plaintiff moved to dismiss the failure to appear charge,
arguing that on December 4, 2006 he had neither appeared before
a judge nor received notice of the January 5th continuance date.
(Tr. 4/17/07, doc. #88-6 at 43-44.)

The State objected that

Attorney Campos had orally conveyed the continuance date to
plaintiff on December 4th, after which the court "entered a not
guilty plea automatically as it does for statistical purposes."
(Id. at 45-46.)

Judge Marano indicated that he understood the

parties' positions.

(Id. at 48-50.)

On May 8, 2007, in a

written ruling, Judge Marano found probable cause to sustain the
failure to appear charge and denied plaintiff's motion to
dismiss.

(Doc. #88-12 at 22-25.)

On May 24, 2007, Judge Marano

denied plaintiff's motion for reconsideration.

(Doc. #88-12 at

32-33, 41.)
On September 25, 2007, the State entered a nolle prosequi,
explaining that difficulties with witnesses made it unwise to
proceed with the prosecution.
charges were dismissed.

On plaintiff's motion, the

(Tr. 9/25/07, doc. 88-6 at 62.)

12

During the pendency of the criminal case, defendants
Killiany and Officer Guerrera had contact with the prosecuting
attorneys.

Defendant Killiany spoke to Assistant State's

Attorney Campos four times about the case.

(Killiany Dep. at

61; Pl.'s 56(a)(1), doc. #230-1 at ¶21; Killiany's 56(a)(2) at
¶21.)

She spoke to Supervisory Assistant State's Attorney

Wittstein about the case three times.

The first time was during

a court recess6 when she described the Thanksgiving Day incident
to him.

The second time he informed her that plaintiff had been

rearrested, and the third time he informed her that the case
would be dismissed.

Attorney Wittstein made notes on the

prosecutor's file including "Do Not Nolle," and "speaks
English."

He also wrote "Victim Pissed" in reference to

Killiany.

He assumed that she was speaking both for herself and

for Hebert and thought of her as the "combined victim."
(Prosecutor's File, doc. #230-9; Wittstein Dep. at 28-41; Pl.'s
56(a)(1), doc. #230-1 at ¶21; Killiany's 56(a)(2) at ¶21.)

The

prosecutor's file also contained an undated, typed victim's
letter with Hebert's name listed at the bottom.
Killiany "contributed" to this letter.
letter.

(Doc. #230-5.)

Hebert did not write the

(Killiany Dep. at 118-20; Hebert Dep. at 47-48, 86-90;

6

Killiany was often in court because it was her duty to make
recommendations to the court during arraignment proceedings on
domestic violence charges. (Killiany Dep. at 5-7; Pl.'s
56(a)(1), doc. #230-1 at ¶1.)
13

Pl.'s 56(a)(1), doc. #230-1 at ¶24; Killiany's 56(a)(2) at ¶24.)
The letter included the following statement: "Given
[plaintiff's] skillful and swift actions, I am certain this is
not the first time this man has stolen from someone.

What was

also concerning was that the arresting police officer stated
that Mr. Garcia is employed as a CNA.

It is frightening to

think that a thief could be working [with] elderly and sick
people who are easy targets for being victimized."

(Doc. #230-

5.)
At some point while the criminal case was pending, Attorney
Wittstein asked defendant Officer Guerrera to contact
plaintiff's employer to ask whether plaintiff understood and
spoke English.

The employer responded that plaintiff needed to

speak and understand English for his job.

Guerrera verbally

informed Attorney Wittstein, who asked him not to generate a
supplemental written report.

(Guerrera Letter, doc. #222-7;

Guerrera Dep. at 85-86; Pl.'s 56(a)(1), doc. #233-1 at ¶35.)
During the period in which she took clerical actions in
plaintiff's criminal case, defendant Serafini did not speak to
anyone about the larceny charge or the underlying incident.
(Serafini Dep. at 33-34; Serafini Aff., doc. #217-4 at 3-4;
Serafini's 56(a)(1) at ¶24; Pl.'s 56(a)(2), doc. #226 at ¶24.)

14

IV.

Standard of Review
A party is entitled to summary judgment if the record,

including pleadings, depositions, answers to interrogatories,
admissions and affidavits, establishes that there is no genuine
dispute as to any material fact and that the party is entitled
to judgment as a matter of law.

See Fed. R. Civ. P. 56.

The

moving party has the initial burden of showing an absence of
evidence to support an essential element of the opposing party's
claim.

See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

To overcome this showing, the party opposing summary judgment
"bears the burden of going beyond the pleadings, and
'designating specific facts showing that there is a genuine
issue for trial.'"

Amnesty Am. v. Town of W. Hartford, 288 F.3d

467, 470 (2d Cir. 2002) (quoting Celotex, 477 U.S. at 324).

The

court must view the evidence in the record in the light most
favorable to the nonmoving party, drawing all reasonable
inferences in that party's favor.

See Weinstock v. Columbia

Univ., 224 F.3d 33, 41 (2d Cir. 2000).

On cross motions for

summary judgment, the same standard applies.

Morales v. Quintel

Entertainment, Inc., 249 F.3d 115, 121 (2d Cir. 2001).

Each

party's motion is examined on its own merits, and the court need
not enter judgment for either party.

Id.; Marcoux v. American

Airlines, Inc., 645 F. Supp. 2d 68 (E.D.N.Y. 2008).

15

"On a summary judgment motion, the district court properly
considers only evidence that would be admissible at trial."
Nora Beverages v. Perrier Group of Am., 164 F.3d 736, 746 (2d
Cir. 1998).
V.

Plaintiff's Motion in Limine (doc. #225)
As a preliminary matter, plaintiff seeks to exclude from

consideration the Kmart surveillance video offered by defendants
Officer Guerrera and Killiany.

(Docs. #93, #223.)

He argues

that it is inadmissible on two grounds.
Plaintiff's first ground for exclusion is authenticity.

He

argues that the video cannot be properly authenticated because
it is a duplicate copy.

Rule 1002 of the Federal Rules of

Evidence provides that "[a]n original writing, recording, or
photograph is required in order to prove its content unless
these rules or a federal statute provides otherwise."

However,

Rule 1003 provides that "[a] duplicate is admissible to the same
extent as the original unless a genuine question is raised about
the original's authenticity or the circumstances make it unfair
to admit the duplicate."

At his deposition, plaintiff admitted

that the video shows him taking defendant Hebert's wallet.
(Garcia Dep. at 96-105.)

The police evidence custodian affirmed

that the exhibit is an authentic copy of that video.
Aff., doc. #251-1 at ¶¶ 18-19.)

(Murphy

In view of this evidence, there

is no genuine question as to authenticity.
16

Plaintiff's second ground for exclusion of the video is
based on a series of suppositions.

When defendants showed the

video to plaintiff at his deposition, he admitted that it shows
him taking defendant Hebert's wallet.

He agreed that he saw a

video of these events on a prior occasion but thought it had
been shot from a different angle.
96-102.)

(Garcia Dep., doc. #222-11 at

From that testimony, plaintiff speculates that there

must have been two videos, one shot from the other angle (which
he labels the "original" video) and the one defendants offer
into evidence (which he labels the "substitute" video).
Plaintiff next seizes on a notation in the evidence log stating
"Destroy per Kmart."

(Doc. #225-6 at 3.)

Although other pages

in the evidence file clarify that the video was not among the
items destroyed (docs. #225-9, #251-3), plaintiff advances an
argument that defendants destroyed the alleged "original" video
because the so-called "substitute" was more favorable to their
case.

(Pl.'s Mem., doc. #225-1 at 4-5.)

The court is not persuaded that defendants have concealed,
destroyed or substituted video evidence.

The affidavit of the

police evidence custodian affirms that he destroyed other
evidence but not the surveillance video.7

7

(Murphy Aff., doc.

The full inventory of evidence was two Kmart receipts and
one surveillance video. The receipts were destroyed pursuant to
a state court order because they were not claimed after six
months. (Docs. #225-6, #225-9, #251-3.)
17

#251-1 at ¶¶ 9-12.)

The custodian adds: "I made two true and

accurate DVD copies of the [original video]tape for Officer
Guerrera for use in this case.
never existed.

A second or substitute tape has

The original VHS tape was not destroyed.

remains in my custody."

(Id. at ¶¶ 18-19.)

It

In light of the

foregoing, the exhibit is admitted for purposes of summary
judgment.
VI.

Guerrera Cross Motions (docs. #220, #233)
As to defendant Officer John (Giovanni) Guerrera, plaintiff

claims false arrest, malicious prosecution and other Fourth
Amendment violations under 42 U.S.C. § 1983 (Counts Two and
Four) and state law (Counts One and Three).

He also brings a

state-law claim of intentional infliction of emotional distress
(Count Twelve).
A.

False Arrest and Malicious Prosecution

To prevail on a § 1983 claim for either false arrest or
malicious prosecution, a plaintiff must show a violation of his
rights under the Fourth Amendment by establishing the elements
of the parallel claim under state law.8

8

Fulton v. Robinson, 289

The Connecticut Supreme Court has articulated the elements
of these claims as follows. To prevail on a claim of false
arrest, a plaintiff must prove that "his physical liberty has
been restrained by the defendant and that the restraint was
against his will, that is, that he did not consent to the
restraint or acquiesce in it willingly." Berry v. Loiseau, 223
Conn. 786, 820 (1992). With respect to malicious prosecution, a
plaintiff must prove that: "(1) the defendant initiated or
18

F.3d 188, 195 (2d Cir. 2002) (false arrest); Davis v. Rodriguez,
364 F.3d 424, 433-34 (2d Cir. 2004) (malicious prosecution).
Claims of false arrest and malicious prosecution implicate the
Fourth Amendment right to be free from unreasonable seizures.
Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003).

Under

Connecticut law, a plaintiff claiming false arrest or malicious
prosecution has the burden of proving the absence of probable
cause.

Estrada v. Torres, 646 F. Supp. 2d 253, 257 (D. Conn.

2009) (citing Bhatia v. Debek, 287 Conn. 397, 410-11 (2008)
(malicious prosecution); Beinhorn v. Saraceno, 23 Conn. App.
487, 491 (1990) (false arrest)).

The existence of probable

cause is an absolute defense to claims of false arrest and
malicious prosecution.

Ruttkamp v. De Los Reyes, No.

3:10cv392(SRU), 2012 WL 3596064, at *5 (D. Conn. Aug. 20, 2012)
(citing Caldarola v. Calabrese, 298 F.3d 156, 161 (2d Cir.
2002)).
Officer Guerrera seeks summary judgment on the ground that
he had probable cause to arrest and charge plaintiff with

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).
19

larceny in the 6th degree.9

"Probable cause to arrest exists

when the officers have knowledge of, or reasonably trustworthy
information as to, facts and circumstances that are sufficient
to warrant a person of reasonable caution in the belief that an
offense has been or is being committed by the person to be
arrested."
2007).

Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.

In other words, the court must assess "whether the facts

known by the arresting officer at the time of the arrest
objectively provided probable cause to arrest."

Jaegly v.

Couch, 439 F.3d 149, 153 (2d Cir. 2006) (citing Devenpeck v.
Alford, 543 U.S. 146, 153 (2004)).

Because probable cause

"requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity," it is a lower
standard than preponderance of the evidence.

United States v.

Juwa, 508 F.3d 694, 701 (2d Cir. 2007) (quoting Illinois v.
Gates, 462 U.S. 213, 243 n. 13 (1983)).
Plaintiff offers several arguments against probable cause.
He argues that because one form of larceny, a charge of larceny
of mislaid property, requires "fail[ure] to take reasonable

9

Officer Guerrera urges the court to apply the doctrine of
collateral estoppel to bar plaintiff from challenging probable
cause, an issue that the state court addressed in the criminal
case. Plaintiff responds that collateral estoppel should not
apply because he did not receive a full and fair hearing in the
Superior Court. (Pl's Mem., doc. #237 at 35-36.) Because the
court finds that Officer Guerrera had probable cause, it need
not reach collateral estoppel.
20

measures to restore the property to a person entitled to it,"
Conn. Gen. Stat. § 53a-119(4), his alleged attempt to return the
wallet to Hebert's home address and his eventual delivery of the
wallet to the police station insulated him from liability.10

He

also accuses Officer Guerrera of failing to investigate
thoroughly, making the arrest without a positive identification,
and basing the probable cause determination on "false material"
and "omitted information."
None of these arguments is availing.

When plaintiff

arrived at the police station, he had the wallet in his
possession, Officer Guerrera recognized his jacket from the
surveillance video, and Killiany verbally identified him as the
man she had seen earlier.11

On the video, Officer Guerrera saw

10

"A person commits larceny when, with intent to deprive
another of property or to appropriate the same to himself or a
third person, he wrongfully takes, obtains or withholds such
property from an owner. Larceny includes, but is not limited
to: . . . (4) Acquiring property lost, mislaid or delivered by
mistake. A person who comes into control of property of another
that he knows to have been lost, mislaid, or delivered under a
mistake as to the nature or amount of the property or the
identity of the recipient is guilty of larceny if, with purpose
to deprive the owner thereof, he fails to take reasonable
measures to restore the property to a person entitled to it."
Conn. Gen. Stat. § 53a-119. "A person is guilty of larceny in
the sixth degree when he commits larceny as defined in section
53a-119 and the value of the property or service is five hundred
dollars or less." Conn. Gen. Stat. § 53a-125b.
11

After Officer Guerrera brought the surveillance video to
the police station, another police officer misidentified the man
on the video as a transient named "Weston." That officer then
went out looking for Weston. (Guida Dep. at 49-60.) Plaintiff
21

plaintiff concealing the wallet from the cashier, and he was
aware that plaintiff, regardless of his English proficiency, had
declined an opportunity to interact with Hebert as he exited the
store with Hebert's wallet.

These facts were sufficient for a

person of reasonable caution to believe that plaintiff had
committed larceny.

Once he had probable cause to arrest,

Officer Guerrera was not required to investigate whether
plaintiff had attempted to return the wallet, nor was he
required to believe to a certainty that the charge would be
successfully prosecuted despite plaintiff's delivery of the
wallet to the police station.

As the Second Circuit has

instructed, once a police officer has probable cause, he is not
"required to explore and eliminate every theoretically plausible
claim of innocence" before arresting a suspect.

Panetta v.

Crowley, 460 F.3d 388, 398 (2d Cir. 2006) (quoting Curley v.
Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001)).

In fact,

he is "neither required nor allowed" to continue investigating,
sifting and weighing information.

Id. (quoting Krause v.

Bennett, 887 F.2d 362, 372 (2d Cir. 1989)).

Nor is the officer

required to "believe with certainty that the arrestee will be
successfully prosecuted."

Id. at 396 (quoting Curley, 268 F.3d

appears to argue that he was arrested on the basis of his
resemblance to Weston and/or because he is "a dark-skinned
Hispanic." (Pl.'s Mem., doc. #237 at 11-12, 28-29.) The
argument is unpersuasive in light of the facts known to Officer
Guerrera at the time of plaintiff's arrest.
22

at 70).

See also Southerland v. City of New York, 681 F.3d 122,

127 (2d Cir. 2012) ("[w]hile probable cause requires more than
'mere suspicion,' . . . it does not demand 'hard certainties'")
(citations omitted); cf. Dawkins v. Williams, 511 F. Supp. 2d
248, 276 (N.D.N.Y. 2007) (no probable cause to charge where
evidence before police investigator included "conspicuous
exculpatory statements").
Finally, plaintiff's argument that the probable cause
determination was based on "false material" and "omitted
information" is inapt.

He bases his argument on case law

involving issues of false statements or material omitted from
arrest warrant affidavits presented to a magistrate.

See, e.g.,

Golino v. New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (summary
judgment properly denied where arrest warrant affidavit
contained false statements and omitted information that was
critical to finding of probable cause).

Here, Officer Guerrera

effected a warrantless arrest, so case law regarding the content
of a warrant affidavit does not apply.
Because Officer Guerrera had probable cause to arrest and
charge him, plaintiff cannot prevail on his claims of false
arrest and malicious prosecution under § 1983.

23

B.

Other § 1983 Fourth Amendment Claims12

Plaintiff next maintains that Officer Guerrera violated his
Fourth Amendment rights when he searched his wallet and seized
the Kmart receipt after plaintiff was arrested.

The claim

cannot be levied at Officer Guerrera given plaintiff's
concession that his wallet was searched by a different police
officer.

(Doc. #237 at 12, 29-30.)

Regardless, "it is well

settled that a search incident to a lawful arrest is a
traditional exception to the warrant requirement of the Fourth
Amendment."

United States v. Robinson, 414 U.S. 218, 224

(1973).
In addition, plaintiff argues that Officer Guerrera
handcuffed him unreasonably.

There is no evidence to support

the claim that Officer Guerrera handcuffed him.13

Nonetheless,

12

Besides his Fourth Amendment allegations, plaintiff
contends that Officer Guerrera violated his "Fifth and Sixth
[A]mendment guarantees against self-incrimination and right to
counsel." (Pl.'s Mem., doc. #237 at 18.) Because he supplies
no evidence or argument to substantiate the contentions, the
court does not address them. Plaintiff also argues that
procedural deficiencies in the April 17, 2007 court proceeding
deprived him of his right to confront witnesses under the Sixth
Amendment. (Id. at 37.) This is a futile argument. The state
court, not Officer Guerrera, decided how the criminal case would
proceed.
13

Plaintiff testified that "another policeman came, a
younger guy. He cuffed me, and took me to the back." (Garcia
Dep. at 80.) Officer Guerrera testified that he could not
recall who processed the arrest. (Guerrera Dep. at 38-39.) In
deposition testimony, a different police officer inferred from
24

even assuming that Officer Guerrera did handcuff him and that a
jury could find this use of force unreasonable, Officer Guerrera
is entitled to qualified immunity.

Qualified immunity shields

government officials from liability for civil damages unless (1)
viewed in the light most favorable to the party asserting the
injury, the facts as alleged amount to a violation of a
constitutional or statutory right, and (2) the right was
"clearly established" at the time of the alleged misconduct.
Saucier v. Katz, 533 U.S. 194, 201 (2001).

At the time of

plaintiff's arrest, "'[n]either the Supreme Court nor the Second
Circuit [had] established that a person has a right not to be
handcuffed in the course of a particular arrest.'"

Warner v.

Gyle, No. 3:09-CV-199(RNC), 2010 WL 3925211, at *2 (D. Conn.
Sept. 30, 2010) (quoting Soares v. Connecticut, 8 F.3d 917, 922
(2d Cir. 1993)).
C.

Intentional Infliction of Emotional Distress

Plaintiff also claims intentional infliction of emotional
distress (Count Twelve) in connection with his arrest.

To

prevail on a claim of intentional infliction of emotional
distress in Connecticut, a plaintiff must prove:
(1) that the actor intended to inflict emotional
distress; or that he knew or should have known that
emotional distress was a likely result of his conduct;
(2) that the conduct was extreme and outrageous; (3)
the paperwork that he (not Guerrera) had booked plaintiff but
could not recall handcuffing him. (Guida Dep. at 62-64.)
25

that the defendant's conduct was the cause of the
plaintiff's distress and (4) that the emotional
distress sustained by the plaintiff was severe.
Petyan v. Ellis, 200 Conn. 243, 253 (1986).

"Liability has been

found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community."

Appleton v.

Board of Educ. of Town of Stonington, 254 Conn. 205, 210-11
(2000) (citing 1 Restatement (Second), Torts § 46, comment (d),
p. 73 (1965)).

This is initially a question for the court and

becomes a factual issue only where reasonable minds disagree.
Id. at 210.
As a matter of law, absent other factors that may
constitute "extreme and outrageous" conduct, a routine arrest
will not be considered intentional infliction of emotional
distress if the arresting officer has probable cause to arrest.
Moreno v. City of New Haven Dept. of Police Service, 604 F.
Supp. 2d 364, 376 (D. Conn. 2009).

Here, Officer Guerrera had

probable cause to effect the routine arrest, and he is entitled
to summary judgment on the intentional infliction claim.
VII. Killiany Cross-Motions (docs. #218, #230)
With respect to defendant Lisa Killiany, plaintiff claims
false arrest and malicious prosecution in connection with the
larceny charge under 42 U.S.C. § 1983 (Counts Two and Four) and
26

state law (Counts One and Three).

He brings the same claims

under § 1983 (Counts Six and Eight) and state law (Counts Five
and Seven) in connection with the failure to appear charge.
Finally, he brings state-law claims of defamation (Count Eleven)
and intentional infliction of emotional distress (Count Twelve).
A.

False Arrest and Malicious Prosecution

Although defendant Killiany did not directly arrest or
charge plaintiff with larceny and failure to appear, plaintiff
alleges that she collaborated with defendant Officer Guerrera,
defendant Serafini and State's Attorneys Campos and Wittstein to
trump up charges against him as revenge for ruining her
Thanksgiving dinner and to shield defendant Hebert from
discipline for losing his police badge.14

14

"Claims for false

Plaintiff alleges without further explanation that
Killiany was acting under color of state law. Although Killiany
was a state employee, "mere employment by the state does not
mean that the employee's every act can properly be characterized
as state action." Patterson v. County of Oneida, N.Y., 375 F.3d
206, 230 (2d Cir. 2004) (citing West v. Atkins, 487 U.S. 42, 4950 (1988) ("generally, a public employee acts under color of
state law while acting in his official capacity or while
exercising his responsibilities pursuant to state law")).
Alternatively, a private individual may be deemed a state actor
for § 1983 purposes "if he or she willfully collaborated with an
official state actor in the deprivation of the federal right."
Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993); see
also Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254, 316 (2d
Cir. 2007) (private actor "must jointly participate in the
wrongful conduct, pursuant to a common design or plan");
Shattuck v. Town of Stratford, 233 F. Supp. 2d 301, 313 (D.
Conn. 2002) (private actor may be liable for § 1983 false arrest
or malicious prosecution if she instigated the arrest or
27

arrest or malicious prosecution, brought under § 1983 to
vindicate the Fourth and Fourteenth Amendment right to be free
from unreasonable seizures, are 'substantially the same' as
claims for false arrest or malicious prosecution under state
law."15

Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003).

Under Connecticut law, a plaintiff claiming false arrest or
malicious prosecution has the burden of proving the absence of
probable cause.

Estrada v. Torres, 646 F. Supp. 2d 253, 257 (D.

Conn. 2009) (citing Bhatia v. Debek, 287 Conn. 397, 410-11
(2008) (malicious prosecution); Beinhorn v. Saraceno, 23 Conn.
App. 487, 491 (1990) (false arrest)).

The existence of probable

cause is an absolute defense to claims of false arrest and
malicious prosecution.

Ruttkamp v. De Los Reyes, No.

3:10cv392(SRU), 2012 WL 3596064, at *5 (D. Conn. Aug. 20, 2012)
(citing Caldarola v. Calabrese, 298 F.3d 156, 161 (2d Cir.
2002)).
In light of the court's finding supra that Officer Guerrera
had probable cause to arrest plaintiff, Killiany is entitled to
summary judgment on the claims of false arrest and malicious
prosecution regarding the larceny charge.

As for the failure to

appear charge, that was a secondary development in the criminal
commenced the proceedings). Because the claim fails on other
grounds, the court need not linger on this issue.
15

See elements of false arrest and malicious prosecution
supra at n.8.
28

case for which no reasonable jury would find Killiany
responsible.

She was not present when Attorney Campos allegedly

gave plaintiff a continuance date or at any of the subsequent
court proceedings.

There is no evidence that she sought

rearrest or encouraged prosecution on the failure to appear
charge.

She did not discuss plaintiff's case with Serafini, the

administrative assistant who prepared the rearrest warrant.

In

fact, Killiany first learned of the failure to appear charge in
a passing conversation with Attorney Wittstein after rearrest
already had been ordered.

Negative inferences from Killiany's

thank-you letter to the Torrington Police Department, friendship
with Attorney Campos and communication with the prosecution as a
purported victim are not sufficient to establish that she
instigated plaintiff's rearrest and prosecution on the charge of
failure to appear.

For these reasons, she is entitled to

summary judgment on the claims of false arrest and malicious
prosecution.16
B.

Defamation

Killiany is also entitled to summary judgment on
plaintiff's claim that she defamed him by calling him "motherf--

16

In Counts Four and Eight, plaintiff appears to allege that
Killiany is responsible for the fact that he was not informed on
December 4, 2006 of an indigent's Sixth Amendment right to
appointed counsel. (Second Am. Compl., doc. #137 at ¶¶ 19B, 36,
54.) Because he supplies no evidence or argument to
substantiate the contentions, the court does not address it.
29

-er" at the police station in Torrington.17

To establish a prima

facie case of defamation, a plaintiff must demonstrate that (1)
the defendant published a defamatory statement; (2) the
defamatory statement identified the plaintiff to a third person;
(3) the defamatory statement was published to a third person;
and (4) the plaintiff's reputation suffered injury as a result
of the statement.
210, 217 (2004).

Cweklinsky v. Mobil Chemical Co., 267 Conn.
A communication injures a plaintiff's

reputation if it "tends to . . . lower him in the estimation of
the community or to deter third persons from associating or
dealing with him."

3 Restatement (Second), Torts § 559, quoted

in QSP, Inc. v. Aetna Cas. and Sur. Co., 256 Conn. 343, 356
(2001).

No reasonable jury could find that directing a general

17

In his brief, plaintiff also claims that he was defamed by
the mention of his rearrest in the newspaper's police blotter
(doc. #234-8) and by Killiany's statements in the victim letter
in his court file (doc. #230-5). These claims were not alleged
in the complaint (doc. #137) and cannot be raised for the first
time on summary judgment. Regardless, Killiany is not liable
for the newspaper's statement because she did not make it. Nor
for that matter could any party be liable for publishing the
fact of plaintiff's rearrest. Holmes v. Town of East Lyme, 866
F. Supp. 2d 108, 133 (D. Conn. 2012) ("truth is a complete
defense to a claim of defamation"). As for Killiany's
contributions to the victim letter, those statements are
privileged from a claim of defamation because they were made for
the purpose of marshaling the state's evidence for a judicial
proceeding. See Rioux v. Barry, 283 Conn. 338, 343 (2007)
(public policy justifies immunity from defamation suit for
"those who provide information in connection with judicial and
quasi-judicial proceedings"); Kelley v. Bonney, 221 Conn. 549,
572-74 (1992) (communications made to discrete group for purpose
of marshaling evidence for quasi-judicial proceeding were
privileged from defamation suit).
30

expletive at plaintiff in the presence of his relative and
several police officers caused an actionable injury to his
standing in the community or would deter third persons from
associating or dealing with him.
C.

Intentional Infliction of Emotional Distress

Plaintiff next claims of intentional infliction of
emotional distress (Count Twelve).

To prevail on a claim of

intentional infliction of emotional distress in Connecticut, a
plaintiff must prove:
(1) that the actor intended to inflict emotional
distress; or that he knew or should have known that
emotional distress was a likely result of his conduct;
(2) that the conduct was extreme and outrageous; (3)
that the defendant's conduct was the cause of the
plaintiff's distress and (4) that the emotional
distress sustained by the plaintiff was severe.
Petyan v. Ellis, 200 Conn. 243, 253 (1986).

"Liability has been

found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community."

Appleton v.

Board of Educ. of Town of Stonington, 254 Conn. 205, 210-11
(2000) (citing 1 Restatement (Second), Torts § 46, comment (d),
p. 73 (1965)).

This is initially a question for the court and

becomes a factual issue only where reasonable minds disagree.
Id. at 210.

31

Plaintiff contends that Killiany exploited her connections
as a courthouse employee and wife of a police officer to
convince the police, the prosecutors and the courtroom clerk to
prosecute him with unusual vigor.

He theorizes that she wanted

revenge because her Thanksgiving holiday was ruined and her
husband was embarrassed in front of his brother officers, citing
circumstantial evidence such as Killiany's use of an expletive
at the police station, her thank-you note to the Torrington
police for treating Hebert as "one of your own," her
conversations with prosecutors and her drafting of a letter to
the prosecutor over Hebert's name.
Although the circumstances of plaintiff's initial
appearance at the Bantam courthouse are disturbing,18 Killiany's
own conduct was not extreme or outrageous.

With respect to the

expletive, "[c]onduct on the part of the defendant that is
merely insulting or displays bad manners or results in hurt
feelings is insufficient to form the basis for an action based
upon intentional infliction of emotional distress."

Appleton v.

Board of Educ. of Town of Stonington, 254 Conn. 205, 211 (2000).

18

The Second Circuit affirmed this court's dismissal of
plaintiff's claims against the state's attorneys on the basis of
absolute prosecutorial immunity but noted that it was "disturbed
by the allegations of prosecutorial conduct" and described the
practices as "if not unconstitutional, likely illegal and
certainly improper." Garcia v. Hebert, No. 09-1615-CV, 352 Fed.
Appx. 602 (unpublished), 2009 WL 3765549 (2d Cir. Nov. 12,
2009).
32

As for her communication with prosecutors, Article 1, § 8 of the
Constitution of the State of Connecticut gives a victim of a
crime the right to communicate with the prosecution and the
right to notification of court proceedings.

See also Conn. Gen.

Stat. § 1-1k ("crime victim" means an individual who suffers
direct or threatened physical, emotional or financial harm as a
result of a crime).

It is apparent by their notations on the

case file that Assistant State's Attorneys Campos and Wittstein
considered Killiany to be a crime victim.

As a result, her

communications with the state's attorneys were within the
"bounds of deceny" as expressed in the state constitution.

To

the extent that plaintiff might be contending that the state's
attorneys gave Killiany a degree of access to which she was not
entitled by statute, the responsibility for that decision is
theirs.

In sum, Killiany is entitled to summary judgment on the

claim of intentional infliction of emotional distress.
VIII. Serafini Cross-Motions (docs. #217, #227)
Turning to the allegations against defendant Jane Serafini,
plaintiff claims false arrest, malicious prosecution and abuse
of process19 under 42 U.S.C. § 1983 (Counts Six, Eight and Ten)
and state law (Counts Five, Seven and Nine) in connection with
19

See elements of false arrest and malicious prosecution
supra at n.8. To prevail on a claim of abuse of process, a
plaintiff must prove that the defendant used a legal process
against another primarily to accomplish a purpose for which it
was not designed. Mozzochi v. Beck, 204 Conn. 490, 494 (1987).
33

his arrest and prosecution on the failure to appear charge.

He

also claims intentional infliction of emotional distress (Count
Twelve) under state law.
The relevant undisputed facts are as follows.

Although

plaintiff was not present when his case was called on his
initial court date, courtroom clerk Serafini entered a
continuance date, not-guilty plea and jury election in the court
file on December 4, 2006.

After he failed to appear on the

continuance date and the judge ordered his rearrest, Serafini
generated an arrest warrant affidavit stating that he had been
"directed to appear" on the continuance date.

Finally, she read

the contents of the court file when so ordered by the judge
during a subsequent proceeding.

Both the notations in the file

and the generation of the affidavit were undertaken pursuant to
established courthouse practices.

Plaintiff urges the court to

infer from Serafini's actions that she deliberately misled the
court so as to trump up charges against plaintiff at defendant
Killiany's behest.
Serafini maintains that she is entitled to absolute quasijudicial immunity because her actions were part of the judicial
process.

Judicial immunity does not attach per se.

It depends

on "the nature of the function performed, not the identity of
the actor who performed it."

Forrester v. White, 484 U.S. 219,

34

229 (1988).

Under this functional approach,20 court clerks are

immune from suit "for performance of tasks which are judicial in
nature and an integral part of the judicial process."
v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997).

Rodriguez

Specifically, quasi-

judicial immunity attaches when a court clerk undertakes
"discretionary acts that implement judicial decisions or that
are performed at the discretion or under the supervision of a
judge."

Bliven v. Hunt, No. 05-CV-4852 (SJF/LB), 2005 WL

3409620, *2 (E.D.N.Y. Dec. 12, 2005) (citations omitted).
Additionally, court clerks are absolutely immune from suit for
"functions which are administrative in nature if the task was
undertaken pursuant to the explicit direction of a judicial
officer or pursuant to the established practice of the court."21

20

Whether quasi-judicial immunity attaches under the
functional approach may be determined by the so-called
Cleavinger factors:
(a) the need to assure that the individual can perform
his functions without harassment or intimidation; (b)
the presence of safeguards that reduce the need for
private damages actions as a means of controlling
unconstitutional conduct; (c) insulation from
political influence; (d) the importance of precedent;
(e) the adversary nature of the process; and (f) the
correctability of error on appeal.
Cleavinger v. Saxner, 474 U.S. 193, 202 (1985), cited in Gross
v. Rell ("Gross II"), 695 F.3d 211 (2d Cir. 2012).
21

By contrast, court officers are not entitled to quasijudicial immunity when they perform "purely ministerial and
administrative" tasks that are non-judicial in nature or when
they act outside the scope of her official duties. Quitoriano
35

Humphrey v. Court Clerk for the Second Circuit, No. 5:08–CV–
0363, 2008 WL 1945308, at *2 (N.D.N.Y. May 1, 2008).

The

Connecticut state courts apply the same "functional approach" to
determine whether quasi-judicial immunity attaches to state-law
claims.

See Gross v. Rell ("Gross I"), 585 F.3d 72, 81-82 (2d

Cir. 2009) (citing Carrubba v. Moskowitz, 274 Conn. 533, 542-43
(2005)), question certified to Gross v. Rell, 304 Conn. 234,
273-281 (2012) (applying Cleavinger factors).
Defendant Serafini's actions in this case were an integral
part of the judicial process.

Her notations in the court file,

generation and signing of an affidavit and recitation of the
file contents were done either at a judge's direction or
pursuant to established practices of the state court at Bantam.
See, e.g., McKnight v. Middleton, 699 F. Supp. 2d 507, 525-26
(E.D.N.Y. 2010) (court clerk immune from claim that he "failed
to process" plaintiff's submissions), Humphrey v. Court Clerk
for the Second Circuit, No. 5:08–CV–0363, 2008 WL 1945308, at *2
(N.D.N.Y. May 1, 2008) (court clerk immune from claim that she
failed to timely inform plaintiff that his appeal was dismissed

v. Raff & Becker, LLP, 675 F. Supp. 2d 444, 450 (S.D.N.Y. 2009).
See, e.g., Forrester v. White, 484 U.S. 219, 229 (1988) (judge
not entitled to absolute immunity for decision to demote and
fire probation officer); Atherton v. D.C. Office of Mayor, 567
F.3d 672, 683–86 (D.C. Cir. 2009) (court officer's dismissal of
allegedly disruptive grand juror was administrative, not
adjudicative, and not subject to absolute quasi-judicial
immunity).
36

and neglected to update him on status of appeal); Pikulin v.
Gonzales, No. 07-CV-412, 2007 U.S. Dist. LEXIS 25551, *6, 2007
WL 1063353 (E.D.N.Y. April 5, 2007) (filing and docketing tasks
are integral part of judicial process); Humphrey v. Court Clerk,
NDNY, No. 5:05-CV-1159 (NAM), 2005 WL 2490155, * (N.D.N.Y. Oct.
7, 2005) (court clerks immune from claim that they failed to
advise plaintiff that e-mail address was not acceptable under
local rule for purposes of service and correspondence).

The

fact that Serafini's actions were subject to review by the judge
— and, moreover, were reviewed — is further indication of their
quasi-judicial nature.

See Gross v. Rell ("Gross II"), 695 F.3d

211, 213-14 (2d Cir. 2012) (citing Cleavinger factors including
"the presence of safeguards that reduce the need for private
damages actions as a means of controlling unconstitutional
conduct"); Bimler v. Crouch, No. 3:04CV1478 (WWE), 2005 WL
1074419, at *3 (D. Conn. May 02, 2005) (support enforcement
officer immune from claim that he "misrepresented material
facts" when drafting order because family support magistrate
reviewed the order).
For these reasons, Serafini is entitled to absolute quasijudicial immunity on all claims.
IX.

Civil Conspiracy
Finally, plaintiff claims that Officer Guerrera, Killiany

and Serafini are civil conspirators and therefore liable for the
37

tortious acts of the other defendants.
an independent cause of action.

Civil conspiracy is not

Under § 1983, a claim of civil

conspiracy requires proof of an underlying violation of a
federal right.

Singer v. Fulton County Sheriff, 63 F.3d 110,

119 (2d Cir. 1995) ("the [conspiracy] lawsuit will stand only
insofar as the plaintiff can prove the sine qua non of a § 1983
action: the violation of a federal right").

Similarly, under

Connecticut law, "a claim of civil conspiracy must be joined
with an allegation of a substantive tort."

Master-Halco, Inc.

v. Scillia, Dowling & Natarelli, LLC, 739 F. Supp. 2d 104, 106107 (D. Conn. 2010) (quoting Macomber v. Travelers Property &
Casualty Corp., 277 Conn. 617, 636 (2006)).

Because the

defendants are entitled to summary judgment on all underlying
substantive claims, the civil conspiracy claims fail as a matter
of law.

DeStefano v. Duncanson, No. 08 CIV. 3419 (GBD), 2011 WL

651452, at *4 (S.D.N.Y. Feb. 10, 2011) (dismissing § 1983
conspiracy claim); Presley v. Pepperidge Farm, Inc., 356 F.
Supp. 2d 109, 136-37 (D. Conn. 2005) (summary judgment on state
conspiracy claim).
X.

Conclusion
For the foregoing reasons, plaintiff's Motion in Limine

(doc. #225) is DENIED; defendants' Motions for Summary Judgment
(docs. #217, #218, #220) are GRANTED; and plaintiff's CrossMotions (docs. #227, #230, #233) are DENIED.
38

This is not a recommended ruling.

The parties have

consented to the authority of a magistrate judge in all
proceedings in this case including the entry of final judgment
pursuant to 28 U.S.C. 636(c) and Fed. R. Civ. P. 73.

(Doc.

#276.)
SO ORDERED at Hartford, Connecticut this 27th day of March,
2013.
________________/s/_______________
Donna F. Martinez
United States Magistrate Judge

39

APPENDIX of Filings by ECF Number

P's Motion in Limine

#225

P's Memo

#225-1

Ds' Responses

#251, 261

P's Reply

#267 (268)

Serafini

Killiany

Guerrera

D's SJ

#217

#218

#220

D's 56(a)(1)

#217-1

#219

#222

D's Memo

#217-2

#219-8

#221

P's 56(a)(2)

#226

#229

#232-1

P's Cross-SJ

#227

#230

#233

P's 56(a)(1)

#227-1

#230-1

#233-1 (232)

P's Memo/Response

#236 (239)

#235 (238)

#237 (240)

D's Response/Reply

#256

#258 (260)

#252 (253)

D's 56(a)(2)

#257

#259

#266 (254)

P's Reply

#270

#271

#269

40