Garcia v. Hebert et al
SUPPLEMENTAL RULING re 281 Order on Motion for Summary Judgment. Signed by Judge Donna F. Martinez on 3/28/14. (Nichols, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROBERT HEBERT et al.,
CASE NO. 3:08CV95(DFM)
SUPPLEMENTAL RULING ON CROSS-MOTIONS FOR 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
The court assumes familiarity with the facts set forth
in its ruling on the parties' cross-motions for summary judgment
concerning plaintiff's arrest for larceny after he picked up a
police officer's wallet at a Kmart on Thanksgiving Day in 2006.
Garcia v. Hebert, No. 3:08CV95(DFM), 2013 WL 1294412 (D. Conn.
Mar. 28, 2013).
In that ruling, the court granted the motion
for summary judgment filed by defendant Lisa Killiany and denied
For the reasons that follow, the
court issues this supplemental ruling regarding the claim of
civil conspiracy against Killiany.1
Judgment has not entered yet because claims are still
pending against another defendant. Federal Rule of Civil
Procedure 54(b) provides, in relevant part, that "any order or
other decision . . . that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties does
This action has been partially resolved by rulings on
dispositive motions, two of which are relevant here.
2009, the court dismissed plaintiff's claims of false arrest,
malicious prosecution and due process violations against state
prosecutors Magdalena Campos and Andrew Wittstein on grounds of
(Docs. #94, #99.)
affirmed on interlocutory appeal.
The Second Circuit
Garcia v. Hebert, 352 Fed.
Appx. 602 (unpublished), No. 09-1615-CV, 2009 WL 3765549 (2d
Cir. Nov. 12, 2009).
In March 2013, the court determined that defendant Jane
Serafini was entitled to quasi-judicial immunity on plaintiff's
claims of false arrest, malicious prosecution and due process
violations and granted summary judgment in her favor.
Hebert, No. 3:08CV95(DFM), 2013 WL 1294412 (D. Conn. Mar. 28,
The court also granted summary judgment to defendants
not end the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment adjudicating
all the claims and all the parties' rights and
responsibilities." Fed. R. Civ. P. 54(b); see, e.g., Lawrence
v. Richman Group Capital Corp., No. 3:03CV850(JBA), 2005 WL
1949864 (D. Conn. Aug. 11, 2005) (sua sponte reconsideration of
motion to dismiss certain counts following amendment of
complaint); Enron Power Marketing, Inc. v. Nevada Power Co., No.
01–16034AJG et al., 2004 WL 3015256 (S.D.N.Y. Dec. 28, 2004)
(supplemental ruling on bankruptcy appeal "in the interest of
clarity"); Nabisco v. Warner-Lambert Co., 32 F. Supp. 2d 690
(S.D.N.Y. 1999) (sua sponte reconsideration of ruling on motion
for summary judgment).
Lisa Killiany and Officer John Guerrera on the merits of the
constitutional and tort claims against them.
court determined that because plaintiff could not prevail on his
constitutional or tort claims, he could not prevail on his claim
that defendants conspired to inflict the alleged injury.
id. (citing 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")); Master–Halco, Inc.
v. Scillia, Dowling & Natarelli, LLC, 739 F. Supp. 2d 104, 106–
107 (D. Conn. 2010) (under state law, "claim of civil conspiracy
must be joined with an allegation of a substantive tort")).
In its ruling on the civil conspiracy claim against
defendant Killiany, the court did not include an analysis of her
interactions with the immune state defendants.
In Dennis v.
Sparks, 449 U.S. 24 (1980), the Supreme Court held that a § 1983
conspiracy claim may proceed against private parties even if the
state official with whom they allegedly conspired is immune from
Accord. Contreras v. Perimenis, No. 3:12CV1770(AWT), 2013
The plaintiff in Dennis brought § 1983 due process and
conspiracy claims against a state court judge and private
parties who allegedly bribed him. The Supreme Court held that
although the judge had been properly dismissed from the suit on
the immunity grounds, "[i]t does not follow . . . that the
action against the private parties accused of conspiring with
the judge must also be dismissed." Dennis v. Sparks, 449 U.S.
24, 27 (1980). The Court reasoned that private defendants who
WL 4494315, at *2 (D. Conn. Aug. 20, 2013) ("A non-state actor
could be subject to liability under section 1983 if she
conspires with state actors ‒ even state actors immune from
liability under § 1983 ‒ because 'an otherwise private person
acts "under color of" state law when engaged in a conspiracy
with state officials to deprive another of federal rights.'").
Applying that holding here, the immunity of prosecutors Campos
and Wittstein and court clerk Serafini does not foreclose
plaintiff's claim that Killiany conspired with them to violate
his rights or act unlawfully.
The following analysis of that
claim supplements the previous ruling.
To prevail on a § 1983 conspiracy claim, a plaintiff must
show (1) an agreement between two or more state actors or
between a state actor and a private entity; (2) to act in
concert to inflict an unconstitutional injury; and (3) an overt
act done in furtherance of that goal causing damages.
v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
[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."
119 (2d Cir. 1995).
Singer v. Fulton County Sheriff, 63 F.3d 110,
The plaintiff must show that the defendants
bribe a judge are acting under color of law and that judicial
immunity does not extend to private persons who corruptly
conspire with a judge. Id. at 27-30.
acted in a willful manner, culminating in an agreement,
understanding, or meeting of the minds to violate his
plaintiff's constitutional or statutory rights.
Wilkinson, 540 F. Supp. 2d 501, 507–08 (S.D.N.Y. 2008).
conspiracies are secretive operations, a conspiracy may be
proved by circumstantial, rather than direct, evidence.
Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994).
Similarly, under Connecticut law, a plaintiff claiming
civil conspiracy must show (1) a combination between two or more
persons, (2) to do a criminal or an unlawful act or a lawful act
by criminal or unlawful means, (3) an act done by one or more of
the conspirators pursuant to the scheme and in furtherance of
the object, (4) which act results in damage to the plaintiff.
Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617,
Civil conspiracy is not an independent claim but
an action for damages against those who agree to join in a
"[M]ere association with a
tortfeasor, or even knowledge of wrongdoing, without more, is
insufficient to support a civil conspiracy claim."
Halco, Inc. v. Scillia, Dowling & Natarelli, LLC, 739 F. Supp.
2d 104, 107 (D. Conn. 2010).
"To say that individuals 'join' a
conspiracy, thereby exposing them to liability, is to say that
they agree to participate, in some manner, in the object of the
Id. (citing Macomber, 277 Conn. at 636).
Plaintiff alleges that Killiany exploited her connections
as a courthouse employee and wife of a police officer to
convince the prosecutors and the courtroom clerk to injure him
because he ruined her Thanksgiving holiday and embarrassed her
husband in front of his brother police officers.
circumstantial evidence including 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.
The evidence shows that
Killiany wanted plaintiff to be punished for his conduct but it
falls short of establishing that she conspired to violate his
rights or act unlawfully.
Plaintiff maintains that, at Killiany's behest, the
prosecutors and court clerk "set [him] up" to miss a court date
so that they could arrest and charge him with Failure to Appear.
(Pl.'s Br., doc. #235 at 9.)
Although both this court and the
Court of Appeals inveighed against the procedural shortcuts
taken by prosecutors during plaintiff's initial appearance at
the Bantam courthouse,3 the evidence demonstrates that the
See Recommended Ruling, Garcia v. Hebert, No.
3:08CV95(RNC)(DFM) (D. Conn. March 12, 2009), doc. #94
(prosecutorial conduct was "troubling"), aff'd by Summary Order,
No. 09-1615-cv, 2009 WL 3765549 (2d Cir. Nov. 12, 2009)
practices were routine and commonplace and not the product of a
conspiracy to injure him.
The same is true of the court clerk's
actions, which were routine and consistent with courthouse
practices at the time.
Finally, there is no dispute that
Killiany communicated to prosecutors her desire to see plaintiff
punished; however, 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.
The prosecutors considered Killiany to be
a crime victim and communicated with her for purposes ordained
by state law, as opposed to some illegal objective.
In sum, the
undisputed facts do not show an agreement, understanding, or
meeting of the minds to violate his rights or act unlawfully.
The foregoing analysis supplements the court's prior ruling
in favor of defendant Killiany on the civil conspiracy claims.
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
(describing prosecutorial conduct as "if not unconstitutional,
likely illegal and certainly improper" and ordering state
attorney general to investigate). The Office of the State's
Attorney responded that it had effected policy changes that
would alleviate the Second Circuit's concerns. See Letter from
Maite Baranca, Garcia v. Hebert, No. 09-1615-cv (2d Cir. Dec.
pursuant to 28 U.S.C. 636(c) and Fed. R. Civ. P. 73.
SO ORDERED at Hartford, Connecticut this 28th day of March,
Donna F. Martinez
United States Magistrate Judge
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