Palkimas v. Bella et al
RULING granting the Motion for Summary Judgment (Doc. No. 30 ). Signed by Judge Alvin W. Thompson on 3/28/2012. (Gallagher, Robyn)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICHARD R. PALKIMAS
KATHY BELLA, ANDREW WHELAN,
ROBERT HALL, and
Civil No. 3:08cv01836 (AWT)
RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Richard R. Palkimas brought this action pursuant to 42
U.S.C. § 1983 against Kathy Bella (“Bella”), Andrew Whelan
(“Whelan”), Robert Hall (“Hall”), and Ricki Goldstein
(“Goldstein”), claiming violation of his constitutional right to
privacy, and also brings a claim for violation of his right to
privacy under Connecticut common law.
The court granted the
defendants’ motion to dismiss as to defendants Hall and
The remaining defendants, Bella and Whelan, have
filed a motion for summary judgment.
For the reasons set forth
below, the motion is being granted.
“On April 30, 2005 . . . the [plaintiff] was arrested and
charged with conspiracy to commit assault for allegedly punching
his pregnant girlfriend in the face.” State v. Palkimas, 116
Conn. App. 788, 790 (2009).
The police report stated that “her
injuries consisted of a broken nose that will need plastic
surgery to reconstruct because it was ‘flattened.’” (Def. Ex. H.)
The plaintiff’s girlfriend was pregnant at the time of the
During the altercation the plaintiff’s seven year old
daughter entered the room.
As a result of this alleged incident, on May 2, 2005, the
court issued a family violence protective order. . . .
The protective order required, among other things, that
the defendant refrain from entering the home where the
victim resided and refrain from any threatening behavior.
On June 4, 2005 . . . , the defendant was arrested and
charged with violating the protective order on the basis
of allegations that he was seen jumping from the window
of the victim’s residence.
Palkimas, 116 Conn. App. at 790-91.
On June 28, 2005, the plaintiff applied for entry into the
one-year Family Violence Education Program.
He was granted entry
into the program on July 26, 2005, at which time the court
indicated that the previously issued protective order would stay
On July 13, 2005, after the plaintiff had applied for
the program but before his application was granted, the
Connecticut Superior Court entered an Order of Temporary Custody,
placing the plaintiff’s three minor children under the
guardianship of the Department of Children and Families (“DCF”)
for an indefinite period.
The court found “as to all three
children . . . that each is in immediate physical danger [from
their] surroundings and that continuation in their home is
contrary to their welfare.”
(Def. Ex. T ¶ 10 (alterations in
Shortly thereafter, on September 7, 2005 the
plaintiff pled guilty to neglect in juvenile court.
As a result,
DCF placed the family under protective supervision for the
maximum period of time allowable, one year.
“On November 4, 2005, the [plaintiff] was arrested and
charged with threatening in the second degree and violating a
criminal protective order on the basis of an allegation that he
telephoned his girlfriend . . . and threatened to physically harm
or even kill her.”
Palkimas, 116 Conn. App. at 791-92.
Shortly after the November 4th incident, defendant Bella was
approached by Assistant State’s Attorney Ricki Goldstein, who was
seeking input from DCF regarding the plaintiff’s case.
DCF liason to the Stamford Superior Court for the domestic
violence docket, Bella is often called upon to provide input on
behalf of DCF in domestic violence cases.
She participates in
weekly meetings with the Stamford/Norwalk Judicial District
State’s Attorneys Office (“State’s Attorneys Office”), victim
advocates from two private agencies, local law enforcement
officers, adult probation officers, a representative from the
Alternatives to Incarceration program, and a representative from
the Family Violence Education Program.
At these meetings, Bella
“make[s] recommendations with the safety of children in mind.”
(Def. Ex. B ¶ 6.)
She also “provide[s] information about the
status of any DCF investigation or case, service plans DCF has
established with families, and programming that has been put in
place with parents, such as anger management, substance abuse,
and parenting classes.”
“Input is sought from DCF at
these meetings on cases involving charges for criminal conduct
directed solely at an adult victim if that conduct has potential
repercussions for children in the household or environment.”
(Id. at ¶ 8.)
Bella approached defendant Whelan and Ondrea Faillace, i.e.
the supervisor and social worker then assigned to the Palkimas
case, and instructed them to contact Assistant State’s Attorney
Goldstein regarding how DCF could best assist the State’s
Faillace prepared an eight page letter
detailing DCF’s interactions with the Palkimas family, including
incidents occurring before April 30, 2005 and continuing through
November 10, 2005.
DCF recommended that, due to the seriousness
of the domestic violence, Palkimas receive the most serious
consequence possible to ensure that his children and their
mother, as well as members in the community at large, would be
After drafting the letter, which was dated December 2,
2005, Faillace left an unsigned copy in Whelan’s mailbox.
expedite compliance with the State’s Attorneys Office’s request
for the letter, Whelan quickly read it and then signed “Ondrea
Faillace/ADW” to indicate that while Faillace had drafted the
letter Whelan was signing her name.
Whelan then contacted Bella
because he was unsure where the letter should be sent.
faxed the letter to Assistant State’s Attorney Hall at the
State’s Attorneys Office.
“On June 2, 2006, the [plaintiff] was arrested and charged
with having a weapon in a motor vehicle and possession of drug
Palkimas, 116 Conn. App. at 792.
At a July 11,
2006 hearing, the State orally moved to revoke the plaintiff’s
participation in the Family Violence Education Program based on
the November 2005 and June 2006 arrests.
On July 26, 2006, Judge
Tobin granted the State’s written motion to revoke the
plaintiff’s participation in the program.
At the July 26, 2006
hearing, the court admitted as an exhibit the eight-page DCF
letter written by Faillace. The plaintiff’s counsel argued that
DCF employees had improperly disclosed to the prosecutor
information contained in the letter in violation of Connecticut
state law, and therefore the letter should not have been
submitted to the court.
The court decided to proceed over the
The plaintiff again raised the issue of the DCF letter at a
hearing held on October 19, 2006 to discuss the plaintiff’s
motion to reargue the revocation of his participation in the
Family Violence Education Program.
The plaintiff argued that
Judge Grogins, i.e. a different judge than the one who had made
the decision to revoke the plaintiff’s participation in the
Family Violence Education Program, should recuse himself because
he had read the letter.
The judge indicated that he did not
remember reading the letter and continued the hearing until he
could get a transcript.
At the continued hearing on October 25,
2006, the plaintiff again stated that the judge had been exposed
to a DCF report that should not have been available and the judge
should therefore recuse himself.
Ultimately the motion to recuse
Several weeks later, the plaintiff filed a new motion to
The matter was continued until December 12, 2006.
the December 12, 2006 hearing, the motion to recuse was denied.
The plaintiff filed another motion to reconsider the rulings on
the motion to recuse.
On July 10, 2007 the plaintiff pled “nolo contendere” to a
charge of felony violation of a protective order.
for his plea, the remaining charges were nolled.
A motion for summary judgment may not be granted unless the
court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such issue
warrant judgment for the moving party as a matter of law.
R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Gallo v. Prudential Residential Servs., 22 F.3d
1219, 1223 (2d Cir. 1994).
Rule 56(c) “mandates the entry of
summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”
Celotex Corp., 477 U.S. at 322.
When ruling on a motion for summary judgment, the court must
respect the province of the jury.
try issues of fact.
The court, therefore, may not
See, e.g., Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986); Donahue v. Windsor Locks Bd. of Fire
Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v. Commerce &
Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975).
well-established that “[c]redibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of the judge.”
477 U.S. at 255.
Thus, the trial court’s task is “carefully
limited to discerning whether there are any genuine issues of
material fact to be tried, not to deciding them.
Its duty, in
short, is confined . . . to issue-finding; it does not extend to
Gallo, 22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.
An issue is “genuine
. . . if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248
(internal quotation marks omitted).
A material fact is one that
would “affect the outcome of the suit under the governing law.”
As the Court observed in Anderson: “[T]he materiality
determination rests on the substantive law, [and] it is the
substantive law’s identification of which facts are critical and
which facts are irrelevant that governs.”
Thus, only those
facts that must be decided in order to resolve a claim or defense
will prevent summary judgment from being granted.
confronted with an asserted factual dispute, the court must
examine the elements of the claims and defenses at issue on the
motion to determine whether a resolution of that dispute could
affect the disposition of any of those claims or defenses.
Immaterial or minor facts will not prevent summary judgment.
Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990).
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant and . . . draw all reasonable
inferences in its favor.”
Weinstock v. Columbia Univ., 224 F.3d
33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v.
Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)).
credibility is not an issue on summary judgment, the nonmovant’s
evidence must be accepted as true for purposes of the motion.
Nonetheless, the inferences drawn in favor of the nonmovant must
be supported by the evidence.
“[M]ere speculation and conjecture
is insufficient to defeat a motion for summary judgment.”
v. Trustees of Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997)
(internal quotation marks omitted) (quoting Western World Ins.
Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d. Cir. 1990)).
Moreover, the “mere existence of a scintilla of evidence in
support of the [nonmovant’s] position will be insufficient; there
must be evidence on which [a] jury could reasonably find for the
Anderson, 477 U.S. at 252.
Finally, the nonmoving party cannot simply rest on the
allegations in its pleadings since the essence of summary
judgment is to go beyond the pleadings to determine if a genuine
issue of material fact exists.
See Celotex Corp., 477 U.S. at
“Although the moving party bears the initial burden of
establishing that there are no genuine issues of material fact,”
Weinstock, 224 F.3d at 41, if the movant demonstrates an absence
of such issues, a limited burden of production shifts to the
nonmovant, who must “demonstrate more than some metaphysical
doubt as to the material facts, . . . [and] must come forward
with specific facts showing that there is a genuine issue for
Aslanidis v. United States Lines, Inc., 7 F.3d 1067,
1072 (2d Cir. 1993)(quotation marks, citations and emphasis
omitted). Furthermore, “unsupported allegations do not create a
material issue of fact.”
Weinstock, 224 F.3d at 41.
nonmovant fails to meet this burden, summary judgment should be
Defendants Whelan and Bella contend that they are entitled
to qualified immunity.
Our analysis of a qualified immunity claim consists
of a three step inquiry.
First, we must determine
whether plaintiff has alleged a violation of a
constitutional right. Then we consider if the violated
right was clearly established at the time of the conduct.
Finally, if plaintiff had a clearly established,
constitutionally protected right that was violated by the
actions of the [public employees], he or she must
demonstrate that defendants’ actions were not objectively
reasonable. This three step inquiry should typically be
done in sequential order.
Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 203, 211 (2d
“This approach, however, is not mandatory.”
v. Rocque, 228 F. Supp. 2d 142, 146 (D. Conn. 2002) (citing
African Trade & Info. Ctr. v. Abromaitis, 294 F.3d 355, 359 (2d
“[A] court can often avoid ruling on the
plaintiff’s claim that a particular right exists,” if that right
has not been clearly established and therefore qualified immunity
Camreta v. Green, 131 S. Ct. 2020, 2031 (2011).
Because the court concludes that the plaintiff did not have a
clearly established privacy right that was violated by submission
of the DCF letter to the State’s Attorneys Office, it declines to
address either whether there was a violation of a constitutional
right or whether it was objectively reasonable for defendants
Bella and Whalen to believe their actions were consistent with
the plaintiff’s constitutional rights.
The plaintiff argues that “[t]he right to be free from the
disclosure of intimate personal information” has been clearly
established under the Fourteenth Amendment. (Pl. Mem. in Opp. 18,
Doc. No. 32)
“For a constitutional right to be clearly
established, its contours ‘must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002).
To determine whether a right is clearly established, the court
(1) whether the right in question was defined with
(2) whether the decisional law of the Supreme Court and
the applicable circuit court support the existence of
the right in question; and
(3) whether under preexisting law a reasonable
defendant official would have understood that his or
her acts were unlawful.
Dean v. Blumenthal, 577 F.3d 60, 68 (2d Cir. 2009) (quoting
Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991)).
case law has not clearly settled the right, and so given
officials fair notice of it, the court can simply dismiss the
claim . . . .”
Camreta, 131 S. Ct. at 2031.
“As a general matter, ‘there exists in the United States
Constitution a right to privacy protecting the individual
interest in avoiding disclosure of personal matters.’ ‘More
precisely, this right to privacy can be characterized as a right
to confidentiality.’” Matson v. Bd. of Educ. of City School Dist.
of New York, 631 F.3d 57, 63-64 (2d Cir. 2011).
In Matson, the Second Circuit addressed whether there was a
right to confidentiality that protects against disclosure of the
fact that one suffers from fibromyalgia.
The court held first,
that there is a right to confidentiality protecting against
disclosure of certain medical information.
However, then the
court went on to consider the facts and circumstances specific to
the confidentiality interest asserted in that case.
medical determination or acknowledgment that a disease is serious
does not give rise ipso facto to a constitutionally-protected
privacy right.” Id. at 65.
“In considering claims that a
constitutional right of privacy attaches to various serious
medical conditions, we also proceed on a case-by-case basis.
doing so, we examine all the relevant factors that cut both in
favor of and against extending privacy protection to such medical
Id. at 66-67.
The plaintiff asserts a right to “be free from the
disclosure of intimate personal information under . . . the
(Pl. Mem. in Opp. 18).
contained in the DCF letter was information obtained during an
ongoing investigation by DCF to ensure the safety of the
plaintiff’s children and to investigate whether the plaintiff had
a penchant for violence towards his girlfriend.
During the time
the investigation was ongoing, the family was under protective
supervision by DCF and the plaintiff was participating in the
Family Violence Education Program, a program for which he had
Representatives of the Family Violence Education
Program and the State’s Attorneys Office were part of the group
with which Bella regularly met and to which she made
recommendations with the safety of children in mind and reported
on the status of, inter alia, DCF investigations.
The DCF letter
was disclosed by Bella and Whalen to Assistant State’s Attorney
Goldstein for use in a domestic violence case against the
plaintiff in Connecticut Superior Court.
The letter contains
details regarding the interactions between the plaintiff, his
family, and DCF, and also makes a recommendation regarding an
appropriate sentence that would protect the plaintiff’s children,
the plaintiff’s girlfriend, and the public.
In support of his assertion of a right to privacy, or more
precisely, a right to confidentiality, the plaintiff cites
Ferguson v. City of Charleston, 532 U.S. 67 (2001) (disclosure of
blood or urine tests); Whalen v. Roe, 429 U.S. 589 (1977)
(disclosure of name on a list of medical drug users); Paul v.
Davis, 424 U.S. 693 (1976) (plaintiff listed on “Active
Shoplifters” flyer); O’Connor v. Pierson, 426 F.3d 187 (2d Cir.
2005) (release of past medical records); Hunnicutt v. Armstrong,
152 Fed. Appx. 34 (2d Cir. 2005) (disclosure of mental health
issues); Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999)
(disclosure of prisoner as transsexual); Doe v. City of New York,
15 F.3d 264 (2d Cir. 1994) (disclosure of HIV status); and Barry
v. City of New York, 712 F.2d 1554 (2d Cir. 1983) (inspection of
annual financial reports).
These cases support the proposition
that an individual enjoys Constitutional protection from
disclosure of certain intimate personal information.
none of the cases cited from the Supreme Court or the Second
Circuit defines that right with reasonable specificity for
purposes of applicability to the facts and circumstances of this
None of these cases states the contours of such a right in
terms that are sufficiently clear such that Bella and Whalen
would have understood that disclosure of the information in the
DCF letter to the State’s Attorneys Office would violate the
plaintiff’s constitutional rights.
Because the plaintiff has failed to show that he had a
clearly established privacy right with respect to the information
disclosed by defendants Bella and Whalen to the State’s Attorneys
Office, those defendants are entitled to qualified immunity.
Therefore, the motion for summary judgment is being granted as to
the plaintiff’s § 1983 claim.
Connecticut Common Law
The plaintiff claims that his privacy rights under
Connecticut common law were violated.
He contends that “[u]nder
Connecticut law, the common law right to privacy can be violated
in four distinct ways: (1) unreasonable intrusion upon the
seclusion of another; (2) appropriation of the other’s name or
likeness; (3) unreasonable publicity given to the other’s private
life; (4) ‘widespread’ publicity that unreasonably places the
other in a false light before the public.”
(Pl.’s Mem. in Opp’n
He does not state which of the four categories he is relying
As to (2) and (4), however, there is no assertion by the
plaintiff that anyone appropriated the plaintiff’s name or that
he was painted in a false light by the DCF letter.
As to (1):
[t]he invasion of privacy by unreasonable intrusion upon
the seclusion of another has been defined as “One who
intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs
or concerns, is subject to liability to the other for
invasion of his privacy if the intrusion would be highly
offensive to a reasonable [person].”
Schmidt v. Devino, 206 F. Supp. 2d 301, 309-10 (D. Conn. 2001)
(quoting In re State Police Litig., 888 F. Supp. 1235, 1270 (D.
Conn. 1995)) (alterations in original).
Here the plaintiff is
not claiming that the defendants intruded upon his privacy by
intrusion upon his seclusion; rather his claim relates to the
transmission of the information in the DCF letter.
To the extent
there had been any intrusion upon his seclusion that occurred in
the context of the DCF investigation, given the circumstances
surrounding the defendant’s nolo contendre plea, see State v.
Palkimas, 116 Conn. App. 788 (2009), it cannot be disputed that
DCF’s conducting an investigation was a reasonable intrusion.
Therefore, the plaintiff has not produced evidence that could
support a claim for unreasonable intrusion upon the seclusion of
Finally, as to (3), the tort of “unreasonable publicity
given to the other’s private life” “requires ‘publicity,’ which
means ‘a communication that reaches, or is sure to reach, the
public at large.’ It is ‘not an invasion of privacy to
communicate a fact concerning the plaintiff’s private life to a
single person or even to a small group of persons.’” In re
Cordier, Bankruptcy No. 08-20298 (ASD), 2009 WL 890604, at *6
(Bankr. D. Conn. March 27, 2009) (quoting Sidiropoulos v.
Bridgeport Hospital, No. CV030401830S, 2004 WL 202256, at *2
(Conn. Super. Jan. 9, 2004)).
The plaintiff’s claim is based on
the fact that Bella and Whalen provided the DCF letter to the
State’s Attorneys Office, which caused it to be provided to the
This was a small group of persons. The plaintiff
has failed to create a genuine issue of material fact as to
whether the DCF letter was a communication that reached or was
about to reach the public at large, and also failed to create a
genuine issue of material fact as to whether any publicity that
occurred here was unreasonable given the purpose for which the
DCF letter was submitted to the State’s Attorneys Office.
Thus, the plaintiff has failed to create a genuine issue of
material fact as to whether Bella and/or Whalen violated his
right of privacy with respect to any of the four categories of
invasion of privacy under Connecticut common law.
Bella and Whalen are entitled to judgment as matter of law on
For the reasons set forth above, the Motion for Summary
Judgment (Doc. No. 30) is hereby GRANTED, and the Clerk shall
enter judgment in favor of defendants Bella and Whalen with
respect to all claims against them.
The Clerk shall close this case.
It is so ordered.
Dated this 28th day of March at Hartford, Connecticut.
Alvin W. Thompson
United States District Judge
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