Pearson et al v. Lorancaitis et al
Filing
74
ORDER granting 53 Motion for Summary Judgment. See attached memorandum of decision. The Clerk is directed to close the file. Signed by Judge Vanessa L. Bryant on 1/19/2012. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN PEARSON, AND
LESLEY PEARSON
PLAINTIFFS,
v.
BART LORANCAITIS ET AL.,
DEFENDANTS.
:
:
: CIVIL ACTION NO. 3:09cv1641(VLB)
:
: JANUARY 19, 2012
:
:
:
MEMORANDUM OF DECISION GRANTING DEFENDANTS LORANCAITIS and
VANGHELE’S [DKT. #53] MOTION FOR SUMMARY JUDGMENT
Before the Court is a motion for summary judgment filed by the Defendant
Police Officers Bart Lorancaitis and Christopher Vanghele (collectively referred to
herein as the “Defendant Officers”). The Plaintiffs, John Pearson (“Pearson”) and
his wife Lesley Pearson, brought this suit pursuant to 42 U.S.C. § 1983 for false
arrest and malicious prosecution in violation of the Fourth Amendment, and for
unlawful retaliation in violation of the First Amendment against the Defendant
Officers as well as Jeffrey J. Engler (“Engler”), Plaintiffs’ neighbor. Plaintiffs
also allege Connecticut common law defamation and intentional and negligent
infliction of emotional distress. For the reasons stated hereafter, the Defendant
Officers’ motion for summary judgment is granted as to the Plaintiffs’ federal law
claims and the Court declines to exercise its supplemental jurisdiction over
Plaintiffs’ state law claims.
Facts and Procedural Background
1
The following facts relevant to Defendants’ motion for summary judgment
are undisputed unless otherwise noted. On December 21, 2008 at approximately
3:18 p.m., the Newtown Police Department (“NPD”) received a complaint by
Engler that his neighbor, Pearson, had used profanity towards him, was verbally
abusive and caused annoyance by revving the engine of his ATV. [Dkt. #53, Ex.
A. Aff. of Lorancaitis and Vanghele ¶1, 4 and Ex. C, Arrest Warrant Application
¶2].
It is undisputed that there is a long history of disputes between the
Pearson and Engler families. Plaintiffs allege that the inter-family feud began in
the summer of 2000, when Lesley Pearson’s minor son was accused of stealing a
quarter by Engler’s wife. [Dkt. #64, Ex. #6, Dep. of Lesley Pearson at 31-32].
From that time forward, Plaintiffs allege that the Englers took part in a “decade
long persecution” of the Pearsons, effectuated by continuous harassment and
false complaints. [Dkt. #64, Pl. Opposition to Summary Judgment at 2]. Prior to
the December 21, 2008 incident, Plaintiffs allege that the Englers filed numerous
false complaints to NPD in an attempt to have Plaintiffs and other residents
arrested. [Dkt. #64, Pl. Rule 56 Stmt. ¶7]. The alleged false complaints involve
accusations of unsafe driving, placing a raccoon carcass in the Englers’ mailbox,
dog bites among other miscellaneous accusations. [Dkt. #64, Ex. #8].
Defendant Officers Lorancaitis and Vanghele, along with one Officer
Borges, responded to Engler’s complaint. [Dkt. #53, Ex. C, Arrest Warrant
Application]. First, the Defendants Officers interviewed Engler at his residence
2
who reported that Pearson while riding his ATV on his own property, stopped and
screamed profanities at him and revved his engine and continued. [Id.].
After interviewing Engler, the three officers proceeded to the Pearson
residence to interview Pearson. [Dkt. #53, Def. Rule 56 Stmt. ¶7]. A conversation
between the Defendant Officers and Pearson ensued. [Dkt. #53, Ex. C, Arrest
Warrant Application ¶3]. The Defendant Officers allege that Pearson was not
cooperative with their efforts to investigate the complaint and declined to give a
sworn statement about the incident. [Dkt. #53, Def. Rule 56 Stmt. ¶7]. Shortly
afterward, Pearson called 911 to report that he was being harassed by three
Newtown Police officers and asked to speak with the Connecticut State Police.
[Dkt. 53, Ex. A].
Pearson asserts that the Defendant Officers did not attempt to take a
statement from him and harassed him. [Dkt. #64, Pl. 56(a)2 Stmt., disputed issues
of material fact at ¶11]. In support of this assertion, Pearson testified at length in
his deposition recounting his interaction with the Defendant Officers. [Dkt. #64,
Ex. 1, Pearson Dep. 56-59]. Pearson testified that upon seeing Defendant
Lorancaitis approach him, he stopped his ATV and stated “Oh, no, what did I do
now?” [Id. at 56]. According to Pearson, Lorancaitis then stated “[t]hat’s not a
very good way to start a conversation.” Lorancaitis asked Pearson “what did
you say” and he responded “I didn’t say anything.” [Id.]. Pearson testified that
Lorancaitis then looked at him and started to point his finger and said “what
exactly did you say?” [Id. at 57]. Pearson responded “I haven’t said anything.
I’m going around my house in circles having fun, a good time.” [Id.]. Pearson
3
testified that Vanghele interrupted him and said “I know you fucking said
something” in a “loud, angry, and belligerent” manner. [Id.]. Pearson then
testified that he told his wife who just come out of their house that “this is
unbelievable. I’m being harassed.” [Id.]. Afterward, he told Vanghele “do you
have an arrest warrant? Are you here on official police business? Are you doing
an investigation?” [Id.]. Vanghele then asked Pearson “what the F did you say.
I am sick of this.” Pearson testified that he ended the encounter by stating to the
Defendant Officers that “you don’t have an arrest warrant for me. You’re not here
on official police business. I am asking you to leave my property and get out of
here.” [Id. at 58]. Pearson testified that Lorancaitas told him that he was being a
“wise ass” and afterward Pearson instructed his wife to call 911. [Id.]. Lastly,
Pearson testified that before the Defendant Officers left his residence Vanghele
told him that they would be back and that he would be arrested. [Id. at 59].
After the Defendant Officers left Pearson’s residence, they obtained a
sworn statement from Engler. In his statement, Engler alleges that Pearson was
riding his ATV approximately four to five feet from Engler’s property line and
stopped and screamed “you’re a fucking dick head you asshole, make sure you
have your phone on record you fuckin’ prick.” [Dkt. #53, Ex. B, Stmt. of Jeffrey
Engler at 1]. Engler then alleges that Pearson revved his engine then continued
to drive his ATV. Id. He further alleges that he heard Pearson scream more
profanity at him, but that he could not make out the precise words. Id. After the
officers obtained the sworn statement from Engler, they left the scene.
4
On December 28, 2008, Officer Lorancaitis prepared an arrest warrant
application for Pearson for violation of Conn. Gen. Stat. §53a-181, Breach of the
Peace in the Second Degree. [Dkt. #53, Ex. C, Arrest Warrant Application]. The
warrant included a description of the Defendant Officers’ encounter with Pearson.
The Defendant Officers asserted in the warrant that “Pearson drove up, stepped
off the ATV and stated ‘[w]hat did I do wrong this time?’” [Id. at ¶3]. Vanghele
then asked Pearson what he had said to Engler and Pearson stated “not a single
word.” [Id.]. Vanghele asked again what Pearson had said to which Pearson
responded “[d]o you have a warrant? I don’t have to talk to you guys.” [Id.].
Pearson then stated that “I want your name and badge number, Sgt. Vanghele”
and shouted to his wife “[t]hese cops are harassing me, this Sgt. Venghele.” [Id.].
The Defendant Officers asserted that Pearson referred to Vanghele with a
profanity and went inside his residence.
[Id.].
The warrant also included a
detailed description of Engler’s sworn statement.
The warrant indicated that the Defendant Officers provided Pearson with
an opportunity to provide a statement, but that he refused to cooperate. It also
noted that Pearson had been previously arrested by the NPD “on a warrant for an
incident involving Engler and [that] a history of disputes exists between the
families.” Pearson was arrested on August 11, 2007 “for driving his unregistered
ATV in front of the Engler’s residence and obscenely gesturing in the direction of
the residence. Pearson was recorded by Engler on video tape, driving the ATV
and giving an obscene gesture.” [Id.]. The warrant also indicated that “Engler
made a verbal statement to Loracaitis about the outcome of the previous cases…
5
[and] stated a judge placed a no contact order on Pearson” but that “Lorancaitis
was unable to locate an active protective or restraining order.” [Id.].
The warrant was issued, and Pearson was arrested and prosecuted for the
crime of disorderly conduct, in violation of General Statutes §53a-182. [Dkt. #64,
Pl. Opposition to Summary Judgment at 5]. On July 2, 2009, a jury acquitted
Pearson of all charges arising out of the December 21, 2008 incident. [Id.].
Pearson alleges that he did not have any interaction with any member of
the Engler Family on December 21, 2008 and that he never revved his engine on
his ATV as it “was technically impossible to do so as his ATV does not have a
clutch.” [Dkt. #64, Pl. Rule 56 Stmt. ¶¶9-10,16]. He also alleges that he installed
security cameras on his property prior to December 2008 that were visible
outside his home and captured him riding his ATV that day but that the Defendant
Officers never requested copies of such footage. [Id. at ¶18].
Standard
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.,
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita
6
Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If there is any
evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v.
Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006) (internal
quotation marks and citation omitted).
Analysis of False Arrest and Malicious Prosecution Claims
Defendant moves for summary judgment as to the Plaintiffs’ false arrest
and malicious prosecution claims arguing that the Defendant Officers had
probable cause to arrest Pearson. In analyzing a Section 1983 claim of false
arrest or imprisonment, federal courts generally look to the law of the state where
the arrest occurred. Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004). Under
Connecticut law, “‘[f]alse imprisonment, or false arrest, is the unlawful restraint
by one person of the physical liberty of another,’” Russo v. City of Bridgeport,
479 F.3d 196, 204 (2d Cir. 2007) (quoting Outlaw v. City of Meriden, 43 Conn. App.
387, 392 (1996)).
“The existence of probable cause to arrest constitutes
justification and is a complete defense to an action for false arrest, whether that
action is brought under state law or under § 1983.” Walczyk v. Rio, 496 F.3d 139,
152 n.14 (2d Cir. 2007) (internal quotation marks and citation omitted).
Connecticut law places the burden on the false arrest plaintiff to prove the
absence of probable cause. See Davis, 364 F.3d at 433 (citing Beinhorn v.
Saraceno, 23 Conn.App. 487, 491, 582 A.2d 208 (1990)); Vangemert v. Strunjo, No.
3:08CV00700 (AWT), 2010 U.S. Dist. LEXIS 29881, 2010 WL 1286850, at *4 (D.
Conn. Mar. 29, 2010).
7
In order to prevail on a § 1983 claim against a state actor for malicious
prosecution, a plaintiff must show a violation of his rights under the Fourth
Amendment, and establish the elements of a malicious prosecution claim under
state law.” Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (citations
omitted). “To prevail on a malicious prosecution claim under Connecticut law, a
plaintiff must prove the following elements: (1) the defendant initiated or
continued criminal proceedings against the plaintiff; (2) the criminal proceeding
terminated in favor of the plaintiff; (3) ‘the defendant acted without probable
cause‘; and (4) ‘the defendant acted with malice.’” Roberts v. Babkiewicz, 582
F.3d 418, 420 (2d Cir. 2009) (quoting McHale v. W.B.S. Corp., 187 Conn. 444, 446
(1982)). The existence of probable cause therefore also constitutes a defense
against a malicious prosecution claim.
“Whether probable cause existed is a question that may be resolved as a
matter of law on a motion for summary judgment if there is no dispute with regard
to the pertinent events and knowledge of the officer.” Weinstock v. Wilk, 296 F.
Supp.2d 241, 256 (D. Conn. 2003) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
2003)).
Probable cause to arrest exists where an officer has “knowledge or
reasonably trustworthy information sufficient to warrant a person of reasonable
caution in the belief that an offense has been committed by the person to be
arrested.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal quotation
marks and citations omitted). Moreover, “a claim for false arrest turns only on
whether probable cause existed to arrest a defendant, and ... it is not relevant
whether probable cause existed with respect to each individual charge, or,
8
indeed, any charge actually invoked by the arresting officer at the time of arrest.”
Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006).
The Second Circuit has explained that "probable cause is a fluid concept . .
. not readily, or even usefully, reduced to a neat set of legal rules . . . While
probable cause requires more than a mere suspicion of wrongdoing, its focus is
on probabilities, not hard certainties." Walczyk, 496 F.3d at 156 (internal quotation
marks and citation omitted). Moreover, the Second Circuit has instructed that
"[i]n assessing probabilities, a judicial officer must look to the factual and
practical considerations of everyday life on which reasonable and prudent men,
not legal technicians, act." Id. In sum, probable cause "requires only such facts
as make wrongdoing or the discovery of evidence thereof probable." Id. at 157.
“Probable cause is to be assessed on an objective basis.”
Zellner v.
Summerlin, 494 F.3d 344, 369 (2d Cir. 2007). “Whether probable cause exists
depends upon the reasonable conclusion to be drawn from the facts known to the
arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152
(2004) (citation omitted). “Other than the facts known to the arresting officer at
the time of arrest, an officer’s state of mind is irrelevant.” Id. at 153. That is to
say, “his subjective reason for making the arrest need not be the criminal offense
as to which the known facts provide probable cause.” Id. Thus, “the fact that the
officer does not have the state of mind which is hypothecated by the reasons
which provide the legal justification for the officer's action does not invalidate the
action taken as long as the circumstances, viewed objectively, justify that
action.” Id. (internal quotation marks omitted).
9
The issuance of a warrant by a neutral magistrate “is presumed reasonable
because such warrants may issue only upon a showing of probable cause.” See
Walczyk, 496 F.3d at 155-56. To rebut this presumption, the plaintiff must show
that "the officer submitting the probable cause affidavit knowingly and
intentionally, or with reckless disregard for the truth, made a false statement in
his affidavit or omitted material information, and that such false or omitted
information was necessary to the finding of probable cause." Soares v. State of
Conn., 8 F.3d 917, 920 (2d Cir. 1993) (internal quotations omitted). “If, after
restoring the omitted information, probable cause remains, no constitutional
violation of the plaintiff's Fourth Amendment rights has occurred. Summary
judgment on this element is appropriate where the evidence, viewed in the light
most favorable to the plaintiffs, discloses no genuine dispute that a magistrate
would have issued the warrant on the basis of the corrected affidavits. [T]here
can be no such dispute where a court is able to determine, as a matter of law, that
the corrected affidavit would have been sufficient to support a finding of probable
cause.” Smolicz v. Borough/Town of Naugatuck, 281 Fed.Appx. 32, 33 (2d Cir.
2008) (internal quotation marks and citation omitted). Reviewing courts properly
accord "considerable deference to the probable cause determination of the
issuing magistrate." Walczyk at 157 (citing Illinois v. Gates, 462 U.S. 213, 238-39,
103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)). “[A] Plaintiff who argues that a warrant
was issued on less than probable cause faces a heavy burden.” Golino v. City of
New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (internal citations omitted).
10
The Defendant Officers argue that the undisputed facts demonstrate that
there was probable cause to arrest Pearson. In their view, probable cause was
predicated on the following undisputed facts: (1) the statements the complainant,
Jeffrey Engler, made at the scene that Pearson revved his ATV close to the
Englers’ property line and swore at him; (2) Engler’s sworn written statement to
the same effect; (3) the Defendant Officer’s interaction with and observation of
Pearson in which he was uncooperative and acted in a threatening manner
towards the officers; and (4) Pearson’s prior arrest for driving an unregistered
ATV and obscenely gesturing at Engler.
Plaintiffs argue that these facts cannot establish probable cause. First,
they contend that the Defendant Officers knew that Engler’s statements were not
credible or reliable and therefore could not support a probable cause
determination. Plaintiffs argue that Engler’s veracity was called into question
first by the well-known and long history of unsubstantiated complaints against
the Pearsons by the Englers and second by the fact that Engler told the
Defendant Officers there was a restraining order against Pearson that the
Defendant Officers admittedly were unable to locate.
Id. at 13-14.
Second,
Plaintiffs contend there could be no probable cause to arrest Pearson for breach
of the peace because the alleged conduct did not take place in public which is a
central element to the offense. Third, Plaintiffs argue that the Defendant Officers
unreasonably ignored Pearson’s statement of his innocence and his denial of any
wrongdoing towards Engler. Fourth, Plaintiffs argue that probable cause should
not have been found where the Defendant Officers failed to further investigate
11
Engler’s accusations by (1) failing to obtain a written statement from Pearson or
his wife or interview Pearson’s wife; (2) failing to request the potentially
exculpatory videotape from Pearson’s surveillance camera; (3) failing to examine
Pearson’s ATV which would have demonstrated that the ATV was mechanically
unable to “rev” as Engler had claimed. Lastly, Plaintiffs argue that Pearson’s
prior arrest cannot corroborate Engler’s accusations as his prior arrest was not
based on similar conduct.
Plaintiffs also argue that the Defendant Officers recklessly omitted crucial
information from the Arrest Warrant and if such information had been included
the corrected warrant could have not supported a finding of probable cause.
Plaintiffs reiterate their prior arguments and argue that arrest warrant should
have included the following information: (1) that the Engler family have made
previous false complaints; (2) that Defendant Vanghele threatened Pearson; (3)
that Pearson and his wife had not been given a chance to provide a written
statement; (4) that both the Engler and Pearson family “run constant video
surveillance of their property and that the Officers made no efforts to secure such
footage;” (5) that the warrant application contained a false statement regarding a
restraining order on Pearson; and (6) that the warrant application contained false
information that Pearson was arrested for similar conduct. [Dkt. #64, Pl. Mem. at
24].
It has long been recognized that “probable cause is based on the facts
warranting arrest and not the statute pursuant to which a plaintiff was charged”
and the fact that the “actual charges were brought under a difference statute
12
does not defeat a finding of probable cause.” Dickerson v. Napolitano, 604 F.3d
732, 752 (2d Cir. 2010); Jaegly, 439 F.3d at 153 (“The [Supreme] Court [has]
rejected the view that probable cause to arrest must be predicated upon the
offense invoked by the arresting officer, or even upon an offense ‘closely related’
to the offense invoked by the arresting officer....”); Rutigliano v. City of New York,
326 Fed. Appx. 5, 7 (2d Cir. 2009) (“[O]ur Court has held that a claim for false
arrest turns only on whether probable cause existed to arrest a defendant, and
that it is not relevant whether probable cause existed with respect to each
individual charge, or, indeed, any charge actually invoked by the arresting officer
at the time of arrest.”) (internal quotation marks and citation omitted); see also
Zellner, 494 F.3d at 369 (“[A]n arrest is not unlawful so long as the officer has
knowledge of, or reasonably trustworthy information as to, facts and
circumstances sufficient to provide probable cause to believe that the person
arrested has committed any crime.”).
Therefore the charge invoked by the
arresting officer is not dispositive or always even relevant to the probable cause
analysis.
Plaintiffs argue that “[t]here was no probable cause to arrest John
Pearson for beach of the peace because the conduct described in the warrant did
not take place in a public place.” [Dkt. #64, Pl. Mem. 26]. Under Conn. Gen. Stat.
§53a-181(b), a person is guilty of breach of the peace only if their conduct occurs
in a public place. However as explained above, Plaintiff’s argument is erroneous
in light of well-established Supreme Court and Second Circuit law as the probable
cause inquiry is not limited to the charges invoked by the arresting officer.
13
Pearson was prosecuted for disorderly conduct, an offense which is
substantially similar to breach of the peace under Connecticut law, but does not
require that the alleged violation occur in a public place. The Court will therefore
analyze whether probable cause in the instant case can be predicated on a
disorderly conduct charge. Under Connecticut law:
A person is guilty of disorderly conduct when, with intent to cause
inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
such person: (1) Engages in fighting or in violent, tumultuous or
threatening behavior; or (2) by offensive or disorderly conduct, annoys or
interferes with another person; or (3) makes unreasonable noise[.]”
Violation of the statute is a class C misdemeanor.
Conn. Gen. Stat. §53a-182(b). A person of reasonable caution would conclude
that Pearson’s alleged conduct of screaming profanities at Engler while revving
his ATV qualified as disorderly conduct under Conn. Gen. Stat. §53a-182(b) as
such behavior was threatening, offensive and annoying and done with the intent
to cause annoyance or inconvenience. Therefore, the Defendant Officers, as will
be discussed in more detail below, had knowledge sufficient to warrant a person
of reasonable caution in the belief that disorderly conduct in violation of Conn.
Gen. Stat. §53a-182(b) had been committed by Pearson.
i.
Pearson’s arrest was supported by probable cause
The Court is mindful that since the Defendant Officers obtained a warrant
to arrest Pearson in this case that the Court must accord deference to the
probable cause determination of the issuing magistrate. When viewing the facts
in the light most favorable to the Plaintiffs and taken into consideration Pearson’s
account of his interaction with the Defendant Officers, the Court finds that a
14
person of reasonable caution would believe that Pearson had engaged in
disorderly conduct.
First, the Defendant Officers interviewed Engler, the alleged victim of
Pearson’s conduct, and then obtained a sworn statement under penalty of perjury
from him that Pearson revved his ATV close to the Englers’ property line and
swore at him. Typically, a “police officer may rely upon the statements of victims
or witnesses to determine the existence of probable cause for the arrest,
regardless of the ultimate accurateness or truthfulness of the statements.”
Bourguignon v. Guinta, 247 F.Supp.2d 189, 193 (D. Conn. 2003) (internal quotation
marks and citation omitted); Stampf v. Long Island R.R. Authority, No.CV-07-3349,
2010 WL 2517700, at *3 (E.D.N.Y. June 13, 2010) (alleged victim’s signed
statement under penalty of perjury and subsequent personal report of the
allegation to defendant officer “sufficient to lead a reasonable police officer to
conclude there was probable cause” for arrest).
Second, the Defendant Officers observations of and interactions with
Pearson corroborated Engler’s account of Pearson’s allegedly belligerent and
threatening behavior. It is undisputed that the Defendant Officers approached
Pearson while he was riding his ATV to interview him regarding Engler’s
complaint and that Pearson engaged in a heated discussion with the Defendant
Officers in which he denied that he said anything to Engler, accused the
Defendant Officers of harassing him and threatened to call 911 to report the
Officers for their harassment. See [Dkt. #64, Ex. 1, Pearson Dep. 56-59]. It is also
undisputed that Engler instructed the Defendant Officers to leave his property
15
and for his wife to call the police.
Based on Pearson’s own account of his
behavior towards the Defendant Officers, a reasonable person would view
Pearson’s behavior towards the Officers as corroborative of Engler’s accusation
that he had behaved in a hostile and threatening manner towards him.
Third, the Defendant Officers investigated Pearson’s prior criminal history
and learned that he had been previously arrested by the NPD on a warrant for a
similar incident involving Engler. See [Dkt. #53, Ex. C, Arrest Warrant
Application]. “Information concerning prior arrests, when combined with other
factors, also may constitute a basis for probable cause to arrest a suspect.” Doe
v. Immigration and Customs Enforcement, No.M-54(HB), 2004 WL 1469464, at *6
(S.D.N.Y. June 29, 2004); Richards v. Gasparino, 374 Fed.Appx. 135, 136-137 (2d
Cir. 2010) (finding that police officer’s knowledge of arrestee’s past behavior
based on a prior arrest along with the officer’s observations at the scene
provided sufficient information to lead an objectively reasonable officer to believe
that a crime had been committed). The Defendant Officers learned that Pearson
was previously arrested for similar conduct, namely driving his unregistered ATV
in front of Engler’s residence and obscenely gesturing in the direction of the
residence.
The Defendant Officers also learned that Engler had videotaped
Pearson riding his ATV and obscenely gesturing at him during that prior incident.
Contrary to the Plaintiffs’ contention, a reasonable person would view
Pearson’s prior arrest as involving conduct that is substantially similar and thus
corroborative. Plaintiffs note that Pearson’s previous arrest occurred on August
11, 2007 when he was charged with operation of ATV on a roadway, creating a
16
public disturbance and excessive noise. Plaintiffs argue that since Pearson’s
prior arrest was for illegal operation of his ATV, his arrest was too dissimilar to
corroborate Engler’s accusation. [Dkt. #63, Def. Mem. 12-13]. Plaintiffs suggest
that the only similarity between the two arrests was that Pearson was riding his
ATV. [Id.]. However, Plaintiffs have tried to hide the fact that Pearson was not
only arrested for the illegal operation of his ATV but also for creating a public
disturbance. The elements of the offense of creating a public disturbance under
Conn. Gen. Stat. § 53a-181a1 are substantially similar to both the elements of
disorderly conduct under Conn. Gen. Stat. § 53a-182 and breach of the peace
under Conn. Gen. Stat. §53a-181(a). The fact that Pearson was riding his ATV was
therefore not the only similarity between the two arrests. In fact, it appears the
only major difference between Engler’s prior complaint which was the basis for
Pearson’s prior arrest and his current complaint was that Pearson was driving his
ATV on the street in front of Engler’s residence as opposed to Pearson driving
his ATV on his own property abutting Engler’s residence.
In both incidents,
Engler accused Pearson of harassing him while on his ATV. Accordingly, the
Court finds Plaintiffs’ argument that Pearson’s prior arrest was too dissimilar to
support a probable cause finding to be unpersuasive.
The facts and
circumstances of Pearson’s prior arrest was therefore an additional source of
trustworthy information sufficient to warrant a person of reasonable caution in
the belief that an offense had been committed.
1
“A person is guilty of creating a public disturbance when, with intent to cause inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent,
tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive
conduct; or (3) makes unreasonable noise.” Conn. Gen. Stat. §53a-181a.
17
Plaintiffs argue that the Defendant Officers knew that Engler’s statements
were not reliable and therefore his statements could not constitute reasonably
trustworthy information to warrant a person of reasonable caution in the belief
that an offense had been committed. Generally, an “arresting officer advised of a
crime by a person who claims to be the victim, and who has signed a complaint
or information charging someone with the crime, has probable cause to effect an
arrest absent circumstances that raise doubts as to the victim's veracity.” Singer
v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). “The most common
situation in which doubts as to veracity arise is when there exists a prior
relationship between the victim and the accused that gives rise to a motive for a
false accusation.” Mistretta v. Prokesch, 5 F. Supp. 2d 128, 133 (E.D.N.Y. 1998).
Here when viewing the facts in the light most favorable to the non-moving party,
the Court must assume that the Defendant Officers were aware of the long history
of unsubstantiated complaints against the Pearsons by the Englers. In fact, the
Defendant Officers included in the warrant that a “history of disputes exists
between the families.” [Dkt. #53, Ex. C, Arrest Warrant Application]. In addition,
the Defendant Officers also included in the warrant that they were unable to
locate the restraining order that Engler stated a judge had placed on Pearson.
[Id.]. Therefore on the face of the information provided in the arrest warrant, the
Defendant Officers appeared to have been aware and in fact informed the judicial
officer that there existed a prior relationship between Engler and Pearson that
gave rise to a motive for false accusation.
18
Where a victim’s veracity has been called into question, courts have “not
require[d] that the victim’s statement be wholly ignored, but that the police have
additional information to buttress the victim’s statement.” Williams v. City of New
York, No.02Civ.3693(CBM), 2003 WL 22434151, at *5 (S.D.N.Y. Oct. 23, 2003)
(internal quotation marks and citation omitted); Jovanovic v. City of New York,
No.04 Civ.8437(PAC), No.04Civ.8437(PAC), 2006 WL 2411541, at *7 (S.D.N.Y. Aug.
17, 2006) (holding that when circumstances call a victim's veracity into doubt
“[an] officer has a duty to assess the reliability of the victim and ... to investigate
the allegations and corroborate them,” before his statement can serve as a basis
for probable cause); McBride v. City of New Haven, No.3:97CV1475, 2000 WL
559087, at *11-12 (D. Conn. Mar. 30, 2000) (holding that the defendant officers had
to “do more” than rely solely on the statements of a victim whose veracity had
been called into question and where police did more “the fact that the [victim’s]
veracity may be questioned does not indicate that probable cause was lacking.”).
Here the Defendant Officers did not simply rely on Engler’s version of the
events. After speaking with Engler, they did not just arrest Pearson but instead
proceeded to the Pearson residence to interview Pearson and get his side of the
story.
As discussed above during that encounter, the Defendant Officers
observed Pearson’s behavior and demeanor which corroborated Engler’s
account of Pearson’s allegedly threatening and hostile conduct. In addition, as
discussed above the Defendant Officers investigated Pearson’s prior criminal
history and learned that he had been previously arrested on a warrant for a
substantially similar incident in which Engler had complained that Pearson had
19
harassed him while riding on his ATV. The Defendant Officers further learned
that Engler had videotaped Pearson harassing him during this earlier incident.
Therefore Engler’s statements were corroborated or buttressed by the Defendant
Officers’ own observations of and interaction with Pearson as well as the facts
and circumstances of Pearson’s prior arrest.
Accordingly, such information
could be considered “reasonably trustworthy” information sufficient to warrant a
person of reasonable caution in the belief that Pearson had committed an offense
and was therefore properly considered when the Defendant Officers made their
probable cause determination.
Even if Engler was lying as Pearson contends it is well recognized that
probable cause can “exist even where it is based on mistaken information, so
long as the arresting officer acted reasonably and in good faith in relying on that
information.” Bernard v. U.S., 25 F.3d 98, 102 (2d Cir. 1994).
Here since the
Defendant Officers sought to obtain Pearson’s perspective to no avail and later
corroborated Engler’s statements they acted reasonably and in good faith in
relying on such information regardless of its ultimate accurateness and
truthfulness.
In addition, the Defendant Officers obtained a warrant to arrest Pearson
which meant that a neutral magistrate also came to a determination that there
was sufficient probable cause to support Pearson’s arrest. As noted above, the
warrant application included and did not omit the facts which called into question
Engler’s veracity for the neutral magistrate’s consideration. Therefore since the
warrant included such facts which called into question Engler’s veracity, the
20
Court must give "considerable deference to the probable cause determination of
the issuing magistrate.”
The Court will now address Plaintiffs’ specific
arguments that probable cause was lacking.
ii.
The Defendant Officers had no duty to investigate further once there
was a reasonable basis to believe there was probable cause
First, Plaintiffs argue that probable cause cannot be supported in light of
Pearson’s denial of any wrongdoing to the Defendant Officers and that the
Defendant Officers unreasonably relied on Engler’s account over his statements
to the contrary. It is undisputed that Pearson told the police that he had said
nothing to Engler that day.
However, it is well established that “a finding of
probable cause is not foreclosed where a police officer is presented with different
stories from an alleged victim and an arrestee.” Oblio v. City University of City of
New York, No.CV-01-5118, 2003 WL 1809471, at *7 (E.D.N.Y. April 7, 2003) (citing
Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001)). “[A]n officer’s failure
to investigate an arrestee’s protestations of innocence generally does not vitiate
probable cause.” Panetta, 460 F.3d at 395-96; Mistretta v. Prokesch, 5 F. Supp. 2d
128, 135 (E.D.N.Y. 1998) (“[Law enforcement officers] have no duty to investigate
an exculpatory statement of the accused, and their refusal to do so does not
defeat probable cause.”) (citations omitted); De Santis v. City of New York,
No.10CIV.3508(NRB), 2011 WL 4005331, at 7 (S.D.N.Y. Aug. 29, 2011) (“the
protestations of innocence by an arrestee are so common as to be virtually a
matter-of-course”). Contrary to Plaintiffs’ argument, once the Defendant Officers
had a sufficient basis to believe there was probable cause, they were not
obligated to further investigate Pearson’s protestations of innocence.
21
The Defendant Officers were likewise not obligated to request the
potentially exculpatory videotapes from either Pearson or Engler’s surveillance
cameras, obtain a sworn statement from either Pearson or his wife, interview
Pearson’s wife, or examine Pearson’s ATV to determine if it could rev as Plaintiffs
contend in order to establish probable cause.
“[O]nce a police officer has a
reasonable basis for believing there is probable cause, he is not required to
explore and eliminate every theoretically plausible claim of innocence before
making an arrest.”
Curley, 268 F.3d at 70.
As explained above, once the
Defendant Officers had a reasonable basis to believe there was probable cause
based on Engler’s sworn statement buttressed by their observations and
interactions with Pearson and Pearson’s prior arrest, the Defendant Officers were
not required to further investigate or take any additional steps before applying for
a warrant and arresting Pearson.
“Once officers possess facts sufficient to
establish probable cause, they are neither required nor allowed to sit as
prosecutor, judge or jury. Their function is to apprehend those suspected of
wrongdoing, and not to finally determine guilt through a weighing of the
evidence.” Krause v. Bennet, 887 F.2d 362, 372 (2d Cir. 1989); Kilburn v. Vill. of
Saranac Lake, 413 Fed. Appx. 362, 363-364 (2d Cir. 2011) (An officer need not
“prove plaintiff's version wrong before arresting him, even if an investigation
might have cast doubt upon the basis for the arrest.") (internal citations and
quotations omitted); see also Carson v. Lewis, 35 F. Supp. 2d 250, 261-62
(E.D.N.Y. 1999) (citing cases holding “once probable cause established the police
do not have to endeavor to negate it.”).
22
The facts and holdings of the Second Circuit’s recent decisions in Gleis v.
Beuhler, 374 Fed. Appx. 218 (2d Cir. 2010) and Jean v. Montina, 412 Fed. Appx.
352, (2d Cir. 2011) are instructive to the present case. In Gleis, the defendant
officer arrested the plaintiff pursuant to an arrest warrant in which the plaintiff
argued the officer recklessly omitted any reference to the existence of
surveillance tapes of the incident. Gleis, 374 Fed. Appx. at 220. The Second
Circuit held that the defendant officer had probable cause to arrest the plaintiff
based on the victim’s sworn statement describing the incident and concluded
that the tapes simply constituted a competing version of the relevant events,
which the defendant officer was required neither to consider nor investigate
before seeking an arrest warrant. Moreover, the videotapes were not necessary
to the finding of probable cause, because they were not “plainly exculpatory
evidence.”
Id. Here, similarly, the Defendant Officers were not required to
determine whether there were any videotapes of the incident, nor investigate
them even if they had been aware of their existence as Plaintiffs contend.
In Jean, the Second Circuit rejected the plaintiff’s argument that the
defendant officer lacked probable cause for arrest because he “failed to
interrogate [the plaintiff], to interview eyewitnesses, or to discover and read
written statements.” Jean, 412 Fed. Appx. at 353-54. The Second Circuit noted
that there was no indication that the defendant officer deliberately disregarded
facts known to him that would establish that the arrestee acted in self-defense
and that “‘[w]e do not impose a duty on the arresting officer to investigate
exculpatory defenses offered by the person being arrested or to assess the
23
credibility of unverified claims of justification before making an arrest.’” Id.
(quoting Jocks v. Tavernier, 316 F.3d 128, 135-36 (2d Cir. 2003)). The Second
Circuit held that the “failure to conduct a more extensive investigation, before
arresting [plaintiff]” did not defeat probable cause. Id. For these same reasons,
the Defendant Officers failure to conduct a “more extensive investigation” by
obtaining a sworn statement from either Pearson or his wife, interviewing
Pearson’s wife or examining Pearson’s ATV does not defeat probable cause.
Plaintiffs’ argument that the Defendant Officers had the duty and obligation to
investigate and take these further steps to find probable cause is unpersuasive in
light of long standing precedent in this Circuit to the contrary.
Once the
Defendant Officers had a sufficient basis to believe probable cause existed to
arrest Pearson, they were no longer obligated under the law of this Circuit to take
any additional steps or investigate more.
The Court notes that Plaintiffs contend that the Defendant Officers did not
attempt to take a statement from Pearson whereas the Defendant Officers
contend that they did attempt to take a statement and were rebuffed by Pearson.
The Defendant Officers argue that when they approached Pearson to interview
him after speaking with Engler they were attempting to take his statement. The
Defendant Officers further argue that Pearson’s refused to give a statement when
he refused to answer the Defendant Officer’s additional questions and ordered
that they leave his property in the absence of an arrest warrant.
Pearson
suggests in his opposition to the Defendant Officer’s motion for summary
judgment that he was willing to give a statement and that when he ordered the
24
Officers off his property that he was not declining to give a statement to them.
[Dkt. #63, Def. Mem. 12]. Since, the probable cause analysis is solely based on
the facts and circumstances within the Officers’ knowledge the fact that Pearson
was later willing to give a statement, or that contrary to his words and deeds he
was disposed to giving a statement prior to his arrest, is not relevant or probative
to the analysis.
It was reasonable for the Defendant Officers to conclude that
Pearson refused to give a statement based on the undisputed fact that Pearson
ordered the Defendant Officers off his property and told them that they were not
welcomed back unless they had a warrant for his arrest. It would have been
impossible for the Defendant Officers to know that Pearson was willing to give a
statement after he ordered them off his property. Therefore, Pearson’s assertion
that he was willing to give a statement cannot possibly defeat a finding of
probable cause. Moreover as discussed above, the Defendant Officers were not
obligated to investigate further and obtain Pearson or even his wife’s sworn
statement before arresting him. For the reasons discussed above, even if the
warrant application had included a statement to the effect that the Officers did not
attempt to obtain a sworn statement from Pearson or his wife that would not have
vitiated a finding of probable cause.
iii.
The Defendant Officers did not provide false information or recklessly
omitt material information from the arrest warrant
The Plaintiffs argue that probable cause could not have been supported if
the warrant had included the fact that Defendant Vanghele had harassed Pearson
and had threatened to come back and arrest him.
Plaintiffs seem to be
suggesting that Pearson’s arrest was motivated by the Defendant Officers’
25
animosity towards him and therefore not based on probable cause. However, it is
well established that an officer’s state of mind is irrelevant to the probable cause
analysis. An officer’s “subjective reason for making the arrest need not be the
criminal offense as to which the known facts provide probable cause … the fact
that the officer does not have the state of mind which is hypothecated by the
reasons which provide the legal justification for the officer's action does not
invalidate the action taken as long as the circumstances, viewed objectively,
justify that action.”
Devenpeck, 543 U.S. at
153 (internal quotation marks
omitted). “Where probable cause exists for the arrest, the officer's underlying
motive in arresting and charging the plaintiff will not be examined by the courts.”
Martinsky v. City of Bridgeport, No.3:09-cv-759, 2011 WL 3880921, at *22 (D. Conn.
Sept. 2, 2011) (citing Singer, 63 F.3d at 120). Accordingly, the fact that Vanghele
allegedly threatened and harassed Pearson is irrelevant to the Court’s probable
cause inquiry and therefore the omission of Vanghele’s threat from the warrant
application was not necessary to the finding of probable cause.
As discussed above since the Court has determined that Pearson’s prior
arrest concerned substantially similar conduct, the Court does not find that the
Defendant Officers provided false information in the warrant with regard to
Pearson’s prior arrest or recklessly omitted material information from the warrant
regarding the arrest as Plaintiffs contend.
The fact that the warrant did not
include the date or list out the specific charges of the prior arrest was not a
material omission as the fact that Pearson was arrested for illegal operation of his
ATV, creating a public disturbance and excessive noise in 2007 would not have
26
undermined the probable cause determination. In fact as discussed above, if the
warrant had included the specific charges that would have likely bolstered not
defeated a probable cause finding as the elements of the offense of creating a
public disturbance under Conn. Gen. Stat. § 53a-181a are substantially similar to
the elements of disorderly conduct under Conn. Gen. Stat. § 53a-182 and breach
of the peace under Conn. Gen. Stat. §53a-181(a).
Plaintiffs argue that the warrant omitted the fact that both the Pearson and
Engler families run constant video surveillance of their property. As discussed
above, the Second Circuit’s reasoning and decision in Gleis is applicable to the
present case and therefore the Defendant Officers were under no obligation to
investigate and obtain the surveillance footage where such video footage was not
necessary to the finding of probable cause and where it was not “plainly
exculpatory evidence.” See Gleis, 374 Fed. Appx. at 220. Therefore the warrant
did not omit material information with respect to the existence of surveillance
tapes necessary to the finding of probable cause.
Plaintiffs also argue that the warrant omitted the fact that the Engler family
has made previous false complaints. However as discussed above, the warrant
did include information pertaining to this issue.
The warrant application
indicated that a “history of disputes exists between the families” and that the
Defendant Officers were unable to locate a restraining order that Engler claimed a
judge had placed on Pearson. Therefore, the warrant application included facts
which indicated to the issuing magistrate that there was reason to doubt Engler’s
veracity. If the warrant had included a statement to the effect that Engler had
27
made false or unsubstantiated complaints against Pearson in the past that would
have had the same effect of raising doubts as to Engler’s veracity as the
information that was already provided in the warrant application. Therefore even
if the warrant application had included such information, the corrected affidavit
would have still been sufficient to support a finding of probable cause.
As
discussed above since the Defendant Officers did not rely solely on Engler’s
statement but instead buttressed or corroborated his statement there was
sufficient information to support a probable cause determination. Accordingly, it
was not significant to the probable cause determination that the Defendant
Officers did not actually use the words “false or unsubstantiated complaints” in
the arrest warrant but instead indicated that there was a long history of disputes.
Lastly, Plaintiffs contend that the warrant application falsely states that
there was a restraining or no contact order against Pearson and that the
Defendant Officers were aware that no restraining order exists and intentionally
included that false statement in the warrant application. [Dkt. #64, Pl. Mem. 14].
However, the Court does not construe the warrant application to contain a
positive statement that a restraining order exists. The warrant application simply
describes the fact that Engler verbally stated to Defendant Lorancaitis that a
judge had placed such an order on Pearson and that Lorancaitis had investigated
into Engler’s statement and found it unsubstantiated.
Therefore the warrant
application does not state that a restraining order exists as Plaintiffs contend.
The warrant application merely describes the statement that Engler made and the
efforts the Defendant Officers made in investigating into and corroborating such
28
statement. Therefore the Court does not find the warrant application included
false information with respect to the alleged restraining order.
Accordingly, Plaintiffs have failed to demonstrate that the Defendant
Officers submitted the warrant application knowingly and intentionally, or with
reckless disregard for the truth, made a false statement or omitted material
information that was necessary to the finding of probable cause. For the reasons
discussed above, the Defendant Officers had probable cause to arrest Pearson
and the Court accords deference to the issuing magistrate’s determination of
probable cause on the basis of the warrant application. Since probable cause is a
defense to both a Section 1983 claim for false arrest and malicious prosecution
summary judgment is granted as to these claims.
Analysis of Qualified Immunity
“With respect to qualified immunity, the Supreme Court has recently
reminded us that ‘the appropriate question is the objective inquiry of whether a
reasonable officer could have believed that [his actions were] lawful, in light of
clearly established law and the information the officer [ ] possessed.’” Martinez
v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (quoting Wilson v. Layne, 526 U.S.
603 (1999)). “Lawful arrest, i.e., arrest pursuant to probable cause, requires the
arresting officer to have “knowledge or reasonably trustworthy information
sufficient to warrant a person of reasonable caution in the belief that an offense
has been committed by the person to be arrested.” Id. (internal quotation marks
and citation omitted). “[I]n the context of a qualified immunity defense to an
29
allegation of false arrest, the defending officer need only show ‘arguable’
probable cause.” Id. “Arguable probable cause exists when a reasonable police
officer in the same circumstances and possessing the same knowledge as the
officer in question could have reasonably believed that probable cause existed in
the light of well established law.” Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997)
(internal quotation marks and citation omitted). Arguable probable cause exists
then “‘if either (a) it was objectively reasonable for the officer to believe that
probable cause existed, or (b) officers of reasonable competence could disagree
on whether the probable cause test was met.’” Escalera v. Lunn, 361 F.3d 737,
743 (2d Cir. 2004) (internal quotation marks and citation omitted).
“Although the tests for probable cause and arguable probable cause are
thus not congruent, the concept of probable cause is the same in both inquiries.
Probable cause existed if at the moment the arrest was made ... the facts and
circumstances within the [officers'] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing’
that [the suspect] had violated the law, and an officer sued under the Fourth
Amendment for false arrest is entitled to immunity if a reasonable officer could
have believed that probable cause existed.”
Zellner, 494 at 370 (internal
quotation marks and citations omitted) (emphasis in the original). “Accordingly,
like the probable cause analysis, the analysis of a qualified immunity defense to
claims that official actions were taken without probable cause entails an inquiry
into the facts known to the officer at the time of the arrest a court must evaluate
the objective reasonableness of the [Officer's] conduct in light of ... the
30
information the ... officers possessed.” Id. (internal quotation marks and citations
omitted).
Since the Court has determined that the Defendant Officers had probable
cause to arrest Pearson, the Defendant Officers are clearly entitled to qualified
immunity as well. It is clear that there was arguable probable cause to arrest
Pearson based on the undisputed facts. In such circumstances where the victim
provided a sworn statement, the officers’ observations of the suspect
corroborated the victim’s statement, and the suspect had been arrested pursuant
to a warrant in a substantially similar incident involving the same victim, it was
objectively reasonable for the officers to believe probable cause existed even
where the victim’s veracity had been called into question. It is clearly established
that where officers do more than solely rely and corroborate the statements of a
victim whose veracity has been called into question that such statements may
serve as a sufficient basis for finding probable cause. See Williams, 2003 WL
2243151, at *5; McBride, 2000 WL 559087, at *11-12. Moreover, considering there
were no material omissions or false statements in the warrant application, it was
objectively reasonable to believe that the arrest was supported by probable cause
when a neutral magistrate issued the warrant.
In addition, whether or not the statements made by Engler were actually
truthful is irrelevant as long as the Defendant Officers relied on them in good
faith. See Escalera, 361 F.3d at 745 ("[T]he actual accuracy or veracity of the
statement is irrelevant to a determination of whether [the defendants have]
arguable probable cause”). Plaintiffs have offered no evidence to legitimately
31
challenge the officers’ good faith belief in Engler’s story considering that the
Officer did more than simply rely on Engler’s statement. In the circumstances of
the present case, it was objectively reasonable for the officers to credit Engler’s
account and conclude there was probable cause for Pearson’s arrest. At the very
least, officers of reasonable competence could disagree on whether the probable
cause test was met in such circumstances.
Analysis of First Amendment Retaliation Claim
Plaintiffs claim that their First Amendment rights were violated on grounds
that Defendants retaliated against them for exercising their freedom of speech.
“To establish a retaliation claim under section 1983, a plaintiff initially must show
that his conduct was protected by the first amendment, and that defendants'
conduct was motivated by or substantially caused by his exercise of free
speech.” Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994) (internal
citations and quotation marks omitted). However, probable cause will defeat a
claim that an arrest or prosecution was based on a retaliatory motive.
See
Hartman v. Moore, 547 U.S. 250, 265-66, (2006); Curley, 268 F.2d at 73 (Arrestee
could not prevail on First Amendment retaliation claim where arrest was
supported by probable cause).
Because the Court finds that the Defendant
Officers had probable cause, Plaintiffs’ First Amendment claim also fails.
Plaintiffs in their opposition to the Defendant Officer’s motion for summary
judgment also allege that the Defendants violated their right to petition for
redress of grievances under the First Amendment because the Pearsons’
32
“numerous complaints [to NPD]…have fallen on deaf ears.”
Opposition to Summary Judgment at 2].
[Dkt. #64, Pl.
However, since this claim was not
asserted in Plaintiffs’ complaint, it cannot be raised for the first time in response
to the Defendant Officer’s summary judgment motion. It is well established that a
plaintiff’s claims raised for the first time in response to a summary judgment
motion could not be used as a means to amend complaint. Shah v. Helen Hayes
Hosp., 252 F. App’x 364, 366 (2d Cir. 2007); Isaac v. City of New York, 701 F.
Supp. 2d 477, 491 (S.D.N.Y. 2010) (“Plaintiff may not use his submission in
opposition to summary judgment as a back door means to amend the
complaint.”); Golodner v. City of New London, No.3:08-cv-1319(WWE), 2010 WL
3522489, *9 (D. Conn., Sept. 1, 2010) (Dismissing First Amendment claim
asserting that defendants violated plaintiff’s right to petition for redress of
grievances by failing to properly investigate complaints on grounds that plaintiff
“cannot amend his claim through a response to summary judgment.”).
Accordingly, summary judgment on Plaintiffs’ First Amendment claim is granted.
Remaining State Law Claims
Having granted summary judgment as to the federal law claims against the
Defendants, the Court declines to exercise its supplemental jurisdiction over the
Plaintiffs’ state law claims. “Supplemental or pendent jurisdiction is a matter of
discretion, not of right.
Thus, the court need not exercise supplemental
jurisdiction in every case.” Nicholson v. Lenczewski, 356 F.Supp.2d 157, 165-66
(D. Conn. 2005) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 715-26 (1966)).
“The federal court should exercise supplemental jurisdiction and hear a state
33
claim when doing so would promote judicial economy, convenience and fairness
to the litigants. The court should decline to exercise supplemental jurisdiction,
however, when state law issues would predominate the litigation or the federal
court would be required to interpret state law in the absence of state precedent.
In addition, the court may decline to exercise supplemental jurisdiction where the
court has dismissed all claims over which it has original jurisdiction.” Id. (citing
28 U.S.C. § 1367(c)(3)); Carnegie Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988) (“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”).
Here, while this case is several years old and nearly ready for trial, the
Court has not had occasion to, and thus has not ruled on any prior substantive
motions and therefore has not developed familiarity with any of the state law
issues in this case. In addition, all of the claims against Defendant Engler are
purely state law claims as Defendant Engler cannot be held liable under Section
1983 since he was not operating under color of state law. See Richardson v.
McKnight, 521 U.S. 399, 403 (1997) (Section 1983 “imposes liability only where a
person acts ‘under color’ of a state ‘statute, ordinance, regulation, custom, or
usage.’) (citing 42 U.S.C. § 1983).
Defendant Engler has failed to file any
dispositive motions in this case and therefore the Court has not had the
opportunity to develop any familiarity with any facts or issues with respect to the
claims
made
against
him.
See
Horton
v.
Town
of
Brookfield,
34
No.CIV.A.3:98CV01834, 2001 WL 263299, *9 (D. Conn. March 15, 2001) (“In
balancing the factors in this case, the court declines to exercise supplemental
jurisdiction over the remaining claims. The case is two years old and nearly
ready for trial. In addition, the court has ruled on various dispositive motions and
developed familiarity with the issues in the case. However, none of the court's
rulings have specifically addressed the remaining state law claims, and the court
is not familiar with those claims.”). Since the remaining claims are purely state
law claims, the Court declines to exercise jurisdiction over those claims. Those
claims are dismissed without prejudice to refiling in state court.
Conclusion
Based upon the above reasoning, the Defendants’ [Dkt. #53] motion for
summary judgment is GRANTED.
IT IS SO ORDERED.
_______/s/_________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: January 19, 2012
35
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