Gagain v. Scirpo

Filing 33

ORDER (see attached) - GRANTING 22 Defendant's Motion for Summary Judgment and DISMISSING the case WITH PREJUDICE. The Clerk is directed to close the file. Signed by Judge Charles S. Haight, Jr. on 12/27/13. (Hornstein, A)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
ROSEMARIE GAGAIN,
Plaintiff,
v.

3:09-cv-00571 (CSH)

PAUL A. SCIRPO, JR.,
Defendant.

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
HAIGHT, Senior District Judge:
I.

Introduction and Summary of Facts
Plaintiff Rosemarie Gagain (hereinafter "Plaintiff"), a resident of Wolcott, Connecticut,

brings this action against Defendant Paul A. Scirpo, Jr. (hereinafter "Defendant"), who was at all
times relevant to this lawsuit Chief of Police of the Wolcott Police Department, over incidents
stemming from Plaintiff's arrest on criminal charges by the Wolcott Police Department. Plaintiff
states that "[i]n the year 2007, officers of the Wolcott Police Department arrested [her] on criminal
charges of which she was innocent," and on March 14, 2008 such "criminal charges were dismissed
by a Judge of the Superior Court." [Doc. 1] at 2.
Exactly a month after that date, i.e., on April 14, 2008, Plaintiff avers that she requested
through counsel "copies of all records concerning her aforesaid false arrest so she could identify the
person or persons who violated her rights under the Fourth Amendment to the United States
Constitution and seek redress for such violation in court." Id. She claims that "[t]hereafter
[Defendant] ... wrongfully and tortiously concealed and/or destroyed the said evidence for the

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purpose of depriving [Plaintiff] of her right of access to the courts of the United States to obtain
redress of her grievances," and, as a result, she "has been deprived of her right to seek redress for
constitutional violations in this [C]ourt, which right is secured to her by the First Amendment to the
United States Constitution as enforced through Sections 1983 and 1988 of Title 42 of the United
States Code." Id. Accordingly, Plaintiff "claims judgment against ... [D]efendant for compensatory
damages, punitive damages, attorney fees, costs and such equitable relief ... as this [C]ourt shall
deem fair and appropriate." Id. at 2-3.1
Defendant has moved for Summary Judgment in this action. See [Doc. 22]. In support of
this Motion, Defendant contends that Plaintiff's First Amendment Claim fails as a matter of law as:
(1) Plaintiff's claim was not frustrated or impeded due to Defendant's actions; (2) Defendant did not
act deliberately or maliciously; and (3) Plaintiff's legal claim was not actually frustrated or impeded.
[Doc. 24] at 2-8. Defendant also contends that he is entitled to qualified immunity from Plaintiff's
claims, as his actions did not violate clearly established law and, moreover, it was objectively
reasonable for him to have believed that his actions did not violate any such state law. Id. at 8-10.
Plaintiff filed a brief in opposition; Defendant filed a reply to Plaintiff's opposition brief; and
Plaintiff filed a Sur-Reply brief in response to Defendant's reply. See [Doc. 27], [Doc. 31], and
[Doc. 32]. Defendant's Motion for Summary Judgment is now ripe for adjudication.
II.

Standard of Review
The standards for summary judgment are familiar. Summary judgment is appropriate when

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Plaintiff also claims that "[p]rior to the dismissal" of the aforementioned criminal
charges by a Superior Court Judge in March of 2008, "on numerous occasions and with the
assistance of her husband [she] attempted to obtain a copy of the police record for the incident in
question." [Doc. 27] at 2.
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"there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment
as a matter of law." F. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). The role of a district court in considering a motion for summary judgment is therefore "not
to resolve disputed questions of fact but only to determine whether, as to any material issue, a
genuine factual dispute exists." In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009). The moving
party, in this case the Defendant, bears the burden of showing that he is entitled to summary
judgment. Once he has satisfied this burden, in order to defeat the motion the party opposing
summary judgment, in this case the Plaintiff, "must set forth specific facts demonstrating that there
is a genuine issue for trial." Wright v. Goord, 554 F.3d 255, 266 (2d Cir 2009) (internal quotation
marks omitted). A dispute about a genuine issue of fact exists for summary judgment purposes
where the evidence is such that a reasonable jury could decide in the non-movant's favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
In making its determination on a summary judgment motion, a trial court will resolve all
ambiguities and draw all inferences in favor of the party against whom summary judgment is sought
– here, Plaintiff. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir. 2009). It is
"[o]nly when reasonable minds could not differ as to the import of the evidence" that summary
judgment is proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). When "a motion for
summary judgment is properly supported by documentary and testimonial evidence ... the nonmoving
party may not rest upon the mere allegations or denials of his pleadings, but rather must present
significant probative evidence to establish a genuine issue of fact." Marczeski v. Gavitt, 354 F.Supp.
2d 190, 193 (D. Conn. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).
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In order to present a "genuine issue of material fact" the nonmoving party – i.e., Plaintiff –
must therefore present contradictory evidence "such that a reasonable jury could return a verdict for
the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. Consequently the
nonmoving party must present affirmative evidence in order to defeat a properly supported summary
judgment motion. As the "mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment," if the nonmoving party
submits evidence that is "merely colorable," summary judgment may be granted. Id. at 247-50. In
sum, a "complete failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. at 322.
III.

Legal Discussion
Defendant has moved for Summary Judgment in this action, averring that Plaintiff's First

Amendment Claim fails as a matter of law as: (1) Plaintiff's claim was not frustrated or impeded due
to Defendant's actions; (2) Defendant did not act deliberately or maliciously; and (3) Plaintiff's legal
claim was not actually frustrated or impeded. [Doc. 24] at 2-8. Defendant also contends that he is
entitled to qualified immunity from Plaintiff's claims, as his actions did not violate clearly
established law and, moreover, it was objectively reasonable for him to have believed that his actions
did not violate any such state law. Id. at 8-10.
A.

Section 54-142a and the Erasure of Records

A key aspect of this case involves Defendant's actions within the context of C.G.S.A. § 54142a, which provides that "[w]henever in any criminal case ... the accused, by a final judgment, is
found not guilty of the charge or the charge is dismissed, all police and court records and records of
any state's attorney pertaining to such charge shall be erased upon the expiration of the time to file
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a writ of error or take an appeal," should "an appeal ... not [be] taken, or upon final determination
of the appeal sustaining a finding of not guilty or a dismissal, if [such] an appeal is [indeed] taken."
C.G.S.A. § 54-142a(a). Section 63-1 of the Connecticut Practice Book provides that "[u]nless a
different time period is provided by statute, an appeal must be filed within twenty days of the date
notice of the judgment or recision is given." Connecticut Practice Book § 63-1(a). While such an
appeal period "may be extended" under certain circumstances pursuant to Section 66-1 of the
Connecticut Practice Book, no party claims that such circumstances were here present. See id.; see
also Connecticut Practice Book § 66-1.
Defendant thus contends that, as Plaintiff's "charges were dismissed on March 14, 2008, and
the appeal period expired on April 3, 2008[,] the records were erased on April 3, 2008," and,
accordingly, Defendant was "forbid[den] ... from disclosing the records" – and, as such, cannot be
held "responsible for actions that hindered [Plaintiff's] efforts to pursue her claim, ... since at the time
she requested the records from him (April 14, 2008), they were erased and pursuant to State Statute,
could not be disclosed." [Doc. 24] at 6.2
However, it is unclear from the record whether Defendant actually had physical possession
of such records at the time of Plaintiff's April 14, 2008 request for them through her attorney. While
the above-quoted section of Defendant's Memorandum of Law in Support of his Motion for
Summary Judgment – which discusses whether Defendant could disclose such records – appears to

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Assuming that notice of judgment or decision was issued on the same day on which the
final decision was rendered – i.e., March 14, 2008 – the Court notes that April 3, 2008 would
have been the last day of the twenty-day appeal period which began on March 14, 2008, and
therefore the records in question ought not to have been erased under the plain language of
C.G.S.A. § 54-142a until the following day, i.e., April 4, 2008. See, e.g., C.G.S.A. § 54-142a;
Connecticut Practice Book § 66-1.
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suggest that Defendant and others in the Wolcott Police Department did in fact possess the records
at such time but felt that they could not divulge them to Plaintiff or her attorney, a signed Affidavit
of Dominic Angiolillo, at the time a Captain of the Wolcott Police Department, states that "[t]he
Wolcott Police Department researched" Plaintiff's attorney's April 14, 2008 request for Plaintiff's
arrest and criminal records and then "determined that no such records exist[ed] as they were erased
pursuant to [C.G.S.A.] § 54-142a," and accordingly Plaintiff's counsel's letter requesting these
records was returned Plaintiff's counsel "with a stamp on it indicating that no such records exist."
[Doc. 23-4] at 1 (emphasis added). In addition, Defendant's Local Rule 56(a)(1) Statement of
Materials Facts, [Doc. 23], restates and cites Mr. Angiolillo's statement that "[t]he Wolcott Police
Department researched [Plaintiff's attorney's] request and determined that no such records exist as
they were erased pursuant to [C.G.S.A.] § 54-142a." See [Doc. 23] at 2 (emphasis added).
The Court finds statements suggesting that Plaintiff's arrest records did not exist at all on
April 14, 2008 to be somewhat puzzling, and at odds with the referenced state statute and its
interpreting caselaw. For example, in State v. Anonymous, 237 Conn. 501 (Conn. 1996), the
Connecticut Supreme Court explicitly noted that the term "erasure" as used in C.G.S.A. § 54-142a
"does not mean physical destruction of the records," but "rather[] it involves sealing the files and
segregating them from materials which have not been erased and protecting them from disclosure,
except that disclosure is permitted in a few, very limited circumstances described in the statutes."
State v. Anonymous, 237 Conn. 501, 513 (Conn. 1996) (emphasis added) (internal quotation marks
and citations omitted). Other state courts have echoed this interpretation of the statute, repeatedly
holding that "[f]or purposes of § 54-142a, [e]rasure alone does not mean the physical destruction of
the documents.'" State v. Weber, 49 Conn. Supp. 530, 531 n.1 (Conn. Super. 2004) (emphasis added)
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(quoting Doe v. Manson, 183 Conn. 183, 185 (Conn. 1981) and Ruggiero v. Fuessenich, 237 Conn.
339, 348 (Conn. 1996)). Consequently any alleged contention by the Wolcott Polce Department that
on April 14, 2008 the records Plaintiff sought simply did not physically exist cannot be supported
under a reasonable reading of C.G.S.A. § 54-142a.
If there were any lingering question about whether Section 54-142a(e) intends for erased
records to be physically destroyed such that they no longer exist, the statute also "designates the
manner in which erased records shall be protected: 'The clerk of the court or any person charged
with retention and control of such records in the records center of the judicial department or any law
enforcement agency having information contained in such erased records ... shall provide adequate
security measures to safeguard against unauthorized access to or dissemination of such records or
upon the request of the accused cause the action physical destruction of such records, except that
such clerk or such person shall not cause the actual physical destruction of such records until three
years have elapsed from the date of the final disposition of the criminal case to which such records
pertain." State v. Anonymous, 237 Conn. at 513 (emphasis added) (quoting C.G.S.A. § 54142a(e)(1)). Clearly neither this statute nor its subsequent interpreting caselaw require that "erased"
records, barring additional circumstances, be physically destroyed within a month of the conclusion
of a criminal case.
On the contrary, the statute makes provisions for limited access to such "erased" records,
access which includes requests from the subject of such documents, providing that once these
records have been erased, "[t]he clerk of the court or any person charged with retention and control
of such records in the records center of the Judicial Department or any law enforcement agency
having information contained in such erased records shall not disclose to anyone, except the subject
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of the record, upon submission pursuant to guidelines prescribed by the Office of the Chief Court
Administrator of satisfactory proof of the subject's identity, information pertaining to any change
erased." C.G.S.A. § 54-142a(e)(1) (emphasis added). Further, as evidenced above, the statute
explicitly provides that it is only "upon the request of the accused" that "actual physical destruction
of such records" should or could take place, and even then such "actual physical destruction of such
records [shall not occur] until three years have elapsed from the date of the final disposition of the
criminal case to which such records pertain." Id. (emphasis added).
Thus while it is true that under the circumstances of Plaintiff's final judgment, "[s]tate statute
required that the subject records be erased, and therefore not available for public disclosure," [Doc.
24] at 5, it is not the case that they should have ceased to exist altogether less than two weeks after
they were erased under the state statute, as Defendant has suggested. See, e.g., [Doc. 23] at 2.
Further, assuming that these records did still exist at the time of Plaintiff's counsel's request
for them on April 14, 2013, it does not stand to reason that disclosing them to Plaintiff's counsel
would constitute a public disclosure. The request in question, as discussed supra, came in the form
of a letter from Plaintiff's attorney, John R. Williams, dated April 14, 2008. See [Doc. 23-3].
Addressed to the "Chief of Police" of the Wolcott Police Department and bearing a subject heading
that included both Plaintiff's full name and date of birth, the letter's substantive text is as follows:
Dear Sir:
Please provide me with copies of any and all records – including erased records –
concerning my captioned client. She was arrested by officers of your department pursuant
to warrant last year and her case was dismissed very recently. I shall be happy to pay any
costs involved and expect your full response within four business days as required by the
Freedom of Information Act. A release and authorization executed by my client is enclosed.

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Sincerely yours,
John R. Williams
Id. Enclosed with this letter was an Authorization and Release form signed by Plaintiff and
addressed to the Wolcott Police Department, stating that Plaintiff "authorize[d] and direct[ed]" the
Wolcott Police Department "to provide any and all records concerning [Plaintiff] to [her] attorney:
John R. Williams, Esq." [Doc. 23-4]. The Authorization and Release form, dated April 14, 2008,
also included Plaintiff's date of birth, home address, and social security number, along with her
attorney's full work address and contact information. Id.
It is implausible, given the contents and nature of both Plaintiff's hand-signed Authorization
and Release form and Plaintiff's attorney's letter to the Wolcott Police Department, that the Wolcott
Police Department would have doubted that the records request was from and for Plaintiff – i.e., the
subject of the erased records. Furthermore, had the Wolcott Police Department not believed that the
April 14, 2008 records request from Plaintiff's attorney, who was clearly acting as an agent for his
client in this respect, fully met the erased record disclosure requirements contained within C.G.S.A.
§ 54-142a(e)(1), the Wolcott Police Department ought to have – and presumably would have –
indicated as much, rather than indicating and stating that "no such records exist[ed]." See [Doc. 23]
at 2. The Court therefore finds Defendant's many contentions that because "[P]laintiff herself, being
the 'subject of the record[,]' never requested the records[,] ... [D]efendant is entitled to summary
judgment," see, e.g., [Doc. 31] at 1, to be unconvincing and without merit.
B.

Plaintiff's First Amendment Right-of-Access Claim

Plaintiff avers that Defendant "has wrongfully and tortiously concealed and/or destroyed the
said evidence for the purpose of depriving [Plaintiff] of her right of access to the courts of the United

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states to obtain redress of her grievances," and that as a result Plaintiff "has been deprived of her
right to seek redress for constitutional violations in this court, which right is secured to her by the
First Amendment to the United States Constitution as enforced through Sections 1983 and 1988 of
Title 42 of the United States Code." [Doc. 1] at 2.
As the Second Circuit noted in 2012, "Courts of Appeals have recognized two variants of
right-of-access claims. First, plaintiffs may allege that systemic official action frustrated their ability
to file a suit. The object of this type of suit is to place the plaintiff in a position to pursue a separate
claim for relief once the frustrating condition has been removed. Such suits are therefore labeled
'forward-looking.'" Sousa v. Marquez, 702 F.3d 125, 127 (2d Cir. 2012) (some internal quotation
marks and citations omitted). In contrast, "[t]he second variant of right-of-access claims is
'backward-looking access claims,' covering suits that cannot now be tried (or tried with all the
material evidence), no matter what official action may be in the future." Id. at 127-28 (some internal
quotation marks and citations omitted). "This may occur, for instance, if the official action caused
the loss or inadequate settlement of a meritorious case. In either circumstance, however, the right
is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being
shut out of court." Id. at 128 (internal quotation marks and citations omitted).
While the Second Circuit has not officially "followed other circuits in recognizing a
backward-looking right of access," it has made clear that "[s]uch claims, if recognized, would be
available only if the governmental action caused the plaintiff's suit to be dismissed as untimely, or
if the official misconduct was so severe as to render[] hollow his right to seek redress," a
circumstance which might arise "for example, if public officials withheld from the plaintiff key facts
which would form the basis of the ... claims for redress;" however, "such claims are available only
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if a judicial remedy was completely foreclosed by the false statement or nondisclosure." Id. (internal
quotation marks and citations omitted) (emphasis added).
Plaintiff avers that a potential "underlying action ... has been lost" to her, as she requested
her arrest records at least in part "so that she could identify the person or persons who provided false
and misleading information which led to her wrongful arrest," as "[t]his individual or individuals
violated [her] Fourth Amendment rights and without the documentation of which she was legally
entitled from [Defendant]," she "lost her opportunity to pursue this Fourth Amendment cause of
action." [Doc. 27] at 8. As a result, she claims, she "has been effectively and meaningfully denied
access to the courts." Id.
Given that Plaintiff describes her opportunity to proceed with any possible underlying action
as having been "lost," and that she states that she has been "deprived ... [of] her right of access to the
courts of the United States" – statements and phrasing which contain a substantial degree of
permanence – the Court assumes that Plaintiff intended her right of access claims to be backwardlooking. The Court also infers as much because of the relief Plaintiff seeks: "judgment against ...
[D]efendant for compensatory damages, punitive damages, attorney fees, costs and such equitable
relief ... as this court shall deem fair and appropriate." See [Doc. 1] at 2-3. These claims fall within
the rubric of those brought in a backward-looking right of access law suit. In contrast, claims
brought in a forward-looking right of access lawsuit seek "to place the plaintiff in a position to
pursue a separate claim for relief once the frustrating condition has been removed." Sousa v.
Marquez, 702 F.3d at 127.
As an initial matter, however, the Court notes that at the time at which Plaintiff's Complaint
was filed in this matter – i.e., April 8, 2009 – the Connecticut statute of limitations for false arrest,
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which is three years, had not yet run. In general, "[a] federal court must look to state law to
determine the applicable statute of limitations in a section 1983 suit. The general three-year
personal-injury statute of limitations period set forth in [C.G.S.A. § 52-77] has been uniformly found
to be the appropriate one for federal civil rights actions." Pinkston v. Connecticut, 3:09-CV-00633,
2009 WL 2852907 at *2 (D.Conn. Sept. 2, 2009) (citations omitted); see also, e.g., Lounsbury v.
Jeffries, 25 F.3d 131, 133-34 (2d Cir. 2004) (applying Connecticut's three-year statute of limitations
to actions brought pursuant to Section 1983).
Further, as the Second Circuit has made clear, to the extent that a backward-looking right of
access claim is recognized at all in this circuit, it is available only in circumstances in which "the
official misconduct was so severe as to render[] hollow [a Plaintiff's] right to seek redress." Sousa
v. Marquez, 702 F.3d at 128. Where a public official has withheld facts from a Plaintiff in such a
way as to"form the basis of the ... claims for redress," a backward-looking right of access claim
would be "available only if a judicial remedy was completely foreclosed by ... [such] nondisclosure."
Id. (internal quotation marks and citations omitted) (emphasis added). The Second Circuit has noted
a common and "sensible recognition" across various appellate opinions from around the country "that
when a plaintiff in a backward-looking access suit alleges that the government concealed or
manipulated relevant facts," as Plaintiff alleges was the case here, "the claim may not proceed if the
plaintiff was, at the time of the earlier lawsuit" – or, presumably, at the time of any potential earlier
lawsuit – "aware of the facts giving rise to his claim." Id. (citations omitted). The appellate court
has explicated that this is "because a plaintiff who has knowledge of the facts giving rise to his claim
... does have adequate access to a judicial remedy," and, indeed, the very "point of the backwardlooking right of access recognized by other circuits is to ensure that plaintiffs have that
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opportunity...." Id. at 128-29 (some emphasis added; some emphasis in original).
Defendant contends that in the case at bar that, even if Plaintiff did not have copies of her
arrest records, Plaintiff did have "all of the applicable information she needed to file her false arrest
claim," and that "[t]herefore, her claim was not actually frustrated," as she was aware that, among
other things, her arrest by the Wolcott Police Department; her charges having been dismissed on
March 14, 2008; and certain police officers – named by Defendant as Malloy, Gorman, Gullick and
Captain Angiolillo – were involved in the investigation and arrest.3 [Doc. 31] at 1-2. Defendant
concludes that accordingly Plaintiff "had all the pertinent information to file a claim for false arrest,"
and, given that, any such claim "was not actually frustrated or impeded," particularly as "once she
filed her false arrest lawsuit, she would have been able to obtain the records through discovery and/or
other various mechanisms." Id. at 2.
Although the Court is sympathetic to Plaintiff's claims, and certainly does not endorse all of
Defendant's actions or apparent interpretation of the Connecticut erasure statute, the Court agrees
with Defendant's assessment of Plaintiff's options at the time her lawsuit was filed. It was not
necessary for Plaintiff to know all potential defendants in an action for false arrest stemming from
the events that took place in March of 2008 at the time at which she brought such an action. It was
also not necessary, for that matter, that Plaintiff include all possible claims in an initial complaint.
As addressed by the Federal Rules of Civil Procedure, additional defendants or claims may be added
to a lawsuit as they are identified through discovery. See Fed. R. Civ. P. 15 and Fed. R. Civ. P. 21.

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The Court notes that there is dispute between the Parties' pleadings as to whether
Plaintiff's arrest was made pursuant to a warrant. See, e.g., [Doc. 31] at 2 n.1 (discussing this
difference of opinion). This is a question that could and should have been resolved through
discovery.
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Further, whether Plaintiff's arrest records were in actuality destroyed or whether they were
merely not revealed, Plaintiff could have attempted to obtain "the identity or identities of her
accuser(s) and the statement(s) they made to the Wolcott Police," see [Doc. 32] at 1, through
discovery made pursuant to a lawsuit brought against, for example, the Wolcott Police Department
or certain Wolcott Police officers. It is true that in this instance Plaintiff was apparently informed
that her arrest records did not exist at all, an assertion which, if taken as true, might have discouraged
Plaintiff from pursuing such paper records through discovery even had she brought a lawsuit for
false arrest. However, there are other ways via discovery Plaintiff could have obtained or attempted
to obtain this information, for example through depositions and other forms of testimony.
Further, were it to have become clear, in an action for false arrest, that Plaintiff's arrest
records had been destroyed, Plaintiff could have sought a court's adverse instruction or sanctions for
spoliation. "Spoliation is the destructive or significant alteration of evidence, or the failure to
preserve property for another's use as evidence in pending or reasonably forseeable litigation." West
v. Goodyear Tire and Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (citation omitted). A party's
"obligation to preserve evidence arises when the party has notice that the evidence is relevant to
litigation or when [that] party should have known that the evidence may be relevant to future
litigation." Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001). I n o r d e r t o
establish that spoliation has occurred, three elements must be established: "(1) that the party having
control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the
evidence was destroyed with a 'culpable state of mind;' and (3) that the destroyed evidence was
relevant to the party's claim or defense such that a reasonable trier of fact could find that it would
support that claim or defense." Dall v. Certified Sales, Inc., 3:09-CV-00019, 2011 WL 572366 at
14

*1 (D.Conn. Feb. 15, 2011) (citations omitted); see also, e.g., Residential Funding Corp. V.
DeGeorge Fin. Corp., 306 F.3d 99, 208 (2d Cir. 2002). As addressed supra, a backward-looking
right of access claim would be "available only if a judicial remedy was completely foreclosed by ...
[such] nondisclosure." Sousa v. Marquez, 702 F.3d at 128 (internal quotation marks and citation
omitted).
For the facts and reasoning articulated supra, the Court cannot conclude, even interpreting
the evidence before it in favor of the Plaintiff – as the Court must for purposes of summary judgment
– that Plaintiff was not "aware of the facts giving rise to [her] claim." See id. (citations omitted).
On the contrary, Plaintiff was aware of these facts and, moreover, did "have adequate access to a
judicial remedy," see id.; for whatever reason, Plaintiff opted not to utilize such access, but such a
decision does not constitute a successful backward-looking right of access claim.
The case at bar is governed by the Second Circuit's holding and reasoning in Sousa v.
Marquez, in which the court of appeals stated that "[i]f a party is aware of the basic facts
undergirding his claim but fails to make his case, whether through inadequate discovery or
otherwise, [that party] may not relitigate" or, presumably, litigate "that dispute through a denial-ofaccess claim." 207 F.3d at 129. The court of appeals further said:
In sum, [the plaintiff] has not shown a genuine dispute of material
fact with respect to his access-to-courts claim because he has not even
stated a claim upon which relief could be granted. As other courts of
appeals have recognized, and as we now hold, backward-looking
access claims are not cognizable if the plaintiff, claiming that the
government concealed or manipulated relevant facts, was aware at the
time of the earlier lawsuit [or, presumably, at the time of a potential
earlier lawsuit] of the facts giving rise to his claim.
Id. Ms. Gagain's case presents the same circumstances.

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IV.

Conclusion
The Court accordingly GRANTS Defendant's Motion for Summary Judgment, [Doc. 22], and

DISMISSES the case WITH PREJUDICE. The Clerk is directed to close the file.
It is SO ORDERED.
Dated: New Haven, Connecticut
December 27, 2013
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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